EU copyright in designs - CJEU rule in Cofemel that ‘originality’ is the only requirement for protection

UK, Portugal, Germany, Italy

On 12 September 2019, the Court of Justice of the European Union (‘CJEU’) delivered its judgment in the case of Cofemel, C-683/17 concerning copyright in designs. In a ruling that will be welcomed by designers, the CJEU held that the single requirement for the existence of copyright protection in a design is 'originality’ under the InfoSoc Directive (2001/29/EC) (the “Directive”).


In 2013, designer clothing company GStar Raw CV (‘GStar’), claimed Sociedade de Vestuário SA (‘Cofemel’) had copied various of its clothing designs. GStar argued the clothing designs were original intellectual creations amounting to ‘works’, meaning that they should enjoy protection under national copyright law in Portugal. Cofemel conversely argued that the items of clothes were not ‘works' and therefore not eligible for protection. After multiple appeals, the dispute was referred by the Portuguese Supreme Court to the CJEU.

Portuguese Supreme Court

The Portugese Supreme Court referred the interpretation of Article 2(a) of the Directive to the CJEU, which states that ‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:

(a) for authors, of their works…’.

A ‘work’ itself is not defined in the Directive. It is therefore unsurprising that the criteria underpinning the concept of ‘work' was at the heart of the dispute. The crucial question referred to the CJEU was whether EU law (in particular Article 2(a) of the Directive) prohibits national legislation from providing copyright protection to designs based on criteria other than originality, namely the ‘aesthetic effect’ required under national copyright law in Portugal.

The CJEU decision

The CJEU set out that the meaning of ‘work' is clear from previous CJEU case law - it consists of two cumulative elements (citing Infopaq International C-5/08 and Levola Hengelo C-310/17):

  • Firstly, there must be 'something original in the sense that it is an intellectual creation of its author'. This means that it ‘reflects the personality of its author’, displaying his or her ‘free and creative choices’ (Painer C-145/10; Renckhoff C-161/17). On the flipside, where the ‘realisation of an object is determined by technical considerations, rules or other constraints' the item 'cannot be regarded as having the originality necessary to constitute a work’ (Football Dataco C-604/); and
  • Secondly, for there to be a ‘work’ under the Directive, the subject matter must be expressed in a manner which makes it identifiable with sufficient precision and objectivity (Levola Hengelo C-310/17).

As the Portuguese ‘aesthetic effect’ requirement must be underpinned by feelings of inherently subjective beauty, it was deemed incompatible with the originality criteria. The CJEU acknowledged that aesthetic considerations are involved in creative activity but stated that whether or a not a ‘work’ generates an aesthetic effect does not in itself determine whether the model constitutes an intellectual creation reflecting the freedom of choice and personality of its author.

The CJEU concluded that Article 2(a) of the Directive must therefore be interpreted as precluding national legislation that provides copyright protection based on aesthetic criteria.

The CJEU’s decision is in line with the earlier Opinion of AG Szpunar dated 2 May 2019, which sets out that a uniform interpretation of ‘work’ is essential to harmonising Union law. AG Szpunar also considered that the only requirement for designs to warrant copyright protection should be originality, without any additional threshold of artistic or aesthetic value being imposed in Member States.


  • For designers The judgement has implications for designs and objects. The threshold for copyright protection based on originality alone (in the absence of aesthetic requirements) appears to reduce the bar to qualify for copyright protection - a change likely to be welcomed by designers.
  • For the EU
    • The national approach of Member States that have historically focused on 'aesthetic’ or 'artistic’ qualities will need to be re-considered; alongside the Portuguese 'aesthetic effect', ‘Scindibilta’ in Italian law and the ‘Stufentheorie' in German law are also now seemingly incompatible with the Cofemel judgement.
    • Member States will need to ensure an assessment of ‘originality’ is carried out; whether this pans out into a harmonised approach across the Member States will become clearer as national courts carry out their individual assessments of whether designs are original – and the role of the author’s ‘free and creative choices’ in such evaluations.
  • For the UK The UK’s statutory category of ‘artistic works’, and more specifically ‘works of artistic craftmanship’, may also need to be re-visited as case law presently imports requirements of ‘aesthetic quality’ for such works:
    • Works of artistic craftmanship - in Hensher (1976), the Court of Appeal (CoA) held that Graham J, the trial judge, had failed to adequately consider whether the work was ‘artistic’ and instead had incorrectly taken the view that the only requirement for a work of artistic craftmanship was an ‘original design’. The House of Lords subsequently affirmed the CoA decision.
    • Artistic works - although ‘artistic works’ are stated to include 'graphic works, photographs, sculptures or collages, irrespective of artistic quality’, thus enabling more functional items to qualify as artistic works, case law has seen the courts take a narrower approach. In Lucasfilm (2011), the English Supreme Court held that a clay model helmet used to create film props could not enjoy copyright protection as it was an object with a functional purpose as opposed to an artistic one. How cases like this will be considered post Cofemel remains to be seen.