Copyright and Design Rights in Furniture

Can copyright and design rights apply simultaneously to a table or an item of furniture? This question was considered in detail recently by an Advocate General of the Court of Justice of the European Union. Read on for our analysis on this latest case dealing with copyright and functional items, written by our Intellectual Property team.

National Courts have recently referred two questions to the Court of Justice of the EU (CJEU). Both questions related to the applicability of copyright protection for works of applied art. In response, Advocate General (AG) Szpunar has issued his long-awaited opinion to the CJEU.

In delivering his advice, AG Szpunar noted that classification as a work in copyright law requires complex and subjective assessments. These assessments can only be made on a case-by-case basis. That classification should however he suggested, be harmonised within the EU and in all Member States. We review and analyse the key takeaways from this latest development.

Background

Both of the cases where referrals were made to the CJEU involved copyright infringement claims regarding items of furniture. In the case of Mio, C-580/23, the Swedish Court of Appeal had to consider whether the ‘Palais Royal’ table below is sufficiently original to be capable of copyright protection.

In Konektra, C-795/23, a German Federal Court of Justice similarly had to consider whether copyright applies to the modular furniture system depicted below.

Both Courts referred similar questions to the CJEU about the applicability of copyright to these works of applied art. In answering the questions referred, AG Szpunar divided his analysis into the following three sub-headings.

1. The relationship between copyright protection and design protection

One of the questions referred was about the link between copyright and design protection under EU law. Specifically, it asked whether design protection is the general rule, and copyright is the exception. It also asked whether this means works of applied art must meet a higher standard of originality compared to other types of work.

AG Szpunar referred to Cofemel, in reminding national courts that there is no automatic connection between the grant of protection under design law and protection under copyright law. In addition, he noted that the conditions for these types of protection must not be confused. For example, a subject matter does not necessarily have to be original, within the meaning of copyright law, in order to be regarded as new and having individual character for the purposes of design law.

Conversely, an original subject matter may not have individual character if it is not sufficiently distinctive, in terms of visual appearance, from existing shapes. AG Szpunar therefore noted that in EU law, there is no relationship of rule and exception between the two types of protection that means that, when examining the originality of works of applied art, stricter requirements must be applied than in the case of other types of work.

2. The criteria for assessing originality

According to AG Szpunar, to decide if something is original, the Court must consider whether it comes from the author’s own free and creative choices. It should also reflect its author’s personality. No further clarification can be made in the abstract. This is because the concept of ‘originality’ is very general and is intended to apply to subject matter of very different kinds. Therefore, it does not “lend itself to a rigorous and systematic definition in case-law.” The application of originality, he held, must be based on a factual assessment in each individual case.

Regarding the creation of utilitarian objects, it is not necessary to make creative choices during their production. For that reason, just because the creator of a practical object made choices that were not required by technical or functional needs, does not automatically mean those choices are creative enough for copyright protection. Equally, the use by the creator of generally available shapes does not exclude originality. Those shapes may be supplemented by original shapes. A work composed solely of available shapes may also be original, provided that the creator has expressed their creative choices in the arrangement of those shapes.

When assessing originality, the following may be considered:

• The author’s intentions during the creative process
• The sources of inspiration
• The likelihood that someone else could have created something similar independently
• Whether the work is recognised by experts or professionals in the field

However, these factors are in no way decisive.

3. Criteria for assessing copyright infringement

In responding to the questions about infringement, AG Szpunar made an important point. He said that to prove copyright infringement, the Court must decide whether the creative parts of the original work have been copied in a way that can be clearly recognised in the accused work.

Simply showing that the two works give a similar overall impression is not enough to prove copyright infringement. The concept of the ‘degree of originality’ of the protected work is not relevant for the purposes of that assessment. Creating a similar work independently does not count as copyright infringement. However, just the possibility that someone could have created a similar work on their own is not a valid reason to deny copyright protection, especially if it’s clear that the creative parts of the original work have been copied.

Comment

The AG’s opinion is detailed and is interesting in a number of respects. For example, AG Szpunar’s comments regarding the criteria for assessing infringement are novel to the extent he suggests adopting a ‘recognisability’ approach. Equally, his suggestion that ‘the degree of originality’ of the protected work is not relevant for the purposes of the infringement assessment is likely to be critiqued and debated by IP commentators in the coming weeks. In addition, it will be interesting to see if the CJEU endorses the content of the AG’s opinion or if there is a further twist to come.

For more information and expert legal advice on the impact of this case and how it affects your business, please contact a member of our award-winning Intellectual Property team.

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