A Refined Approach to Originality in EU Copyright Law in Light of the ECJ’s Recent Copyright/Design Cumulation Case Law

Abstract

The effect of the Cofemel case is to render incompatible with European Union (EU) law any laws of the Member States that impose additional or more onerous criteria in the process of bestowing copyright protection on certain works, namely those of applied art and design. Underlying this ruling is the issue of cumulation of copyright and design rights. In particular, such cumulation may have adverse effects if it is absolute and unrestricted in such a way as to become the norm. Acknowledging this, the Opinion of Advocate General Szpunar suggests a strict application of copyright; however, it is still not clear what such an approach would entail. This article proposes a refined approach to applying the originality condition in EU copyright law which is methodological and true to the underlying justifications and objectives of copyright. As a corollary, notions of design law should be kept distinct from notions of copyright law. In particular, the exclusion from protection of ideas and the exclusion of works dictated by technical considerations should be applied as mere manifestations of the originality condition and not be defined by notions imported from other intellectual property rights. The article further reviews the validity of this proposed approach in light of the imminent developments in EU copyright law that are suggested by the Brompton Bicycle case.