France has a reputation for allowing copyright protection for works of applied art. But is this reputation actually deserved in practice? On 8 November 2007, the Rouen Court of Appeal rendered an interesting decision in relation to a copyright infringement case: Pioneer Pump, Inc., Pioneer Pump, Ltd.& Grem v Gorman Rupp & Hydro Fluide. The main issue was whether the design of the industrial pump, which had been protected by a US patent filed in the early 1960s, could still be protected by copyright under French law. French law provides that a work of applied art can enjoy copyright protection according to the principle of unité de l'Art, as long as the work is original.
According to the classical concept of copyright under French law, a work is original (and therefore protected by copyright) if it is the unique expression of an individual. French court decisions have tended to consider this concept either in a lenient or in a strict way. The decision of November 8 considers that both negative and positive tests should be used to determine if works of applied art in the industrial field can be protected by copyright.
The Negative Requirement
There is no copyright if exterior constraints leave no room for arbitrary choices
The existence of arbitrary choices appears to have been an important criterion in the characterisation of originality under French case law. The work must be the result of free choices that are not dictated by any constraints, thereby allowing for the full expression of the creativity of the author. Traditionally, if made under constraints, a creation could not be considered to be original because the author cannot truly translate his personality into a work if its creation was subject to external requirements.
Accordingly, many decisions have ruled that there is no originality if the work was entirely guided by technical requirements, or if its shape was entirely dedicated to fulfill a utilitarian function.
In addition, a banal, everyday shape, i.e., a shape that does not express the author's personality, is not protected under copyright. This is because works that could have been created identically by another creator do not express any uniqueness linked to their individual author(s). Examples include a Paris Court of Appeal case from 23 October 2003 in relation to a database comprising elements listed in alphabetical order, and a French Supreme Court, Civil Chamber case from 5 January 1999 in relation to a wine menu.
In the present case, the Court of Appeal stated that the author could have chosen a different shape because there was no technical constraint that dictated the shape. Copyright protection was nevertheless denied, because the court also examined a positive requirement, which was actually not met.
The Positive Requirement
There is no copyright if the author did not actually make arbitrary aesthetic or ornamental choices
The Court stated that "the pump design merely follows the design and the shape of the technical body of the pump as such" and that "the originality would have been to precisely go away from it... which had not been the case." The court thus refused copyright protection because the author had simply adopted a shape that mirrored the shapes of the inner, technical elements and the functional design of the body pump, without having made any aesthetic or ornamental alterations that moved away from technical or functional shapes, which was apparent from the figures of the U.S. patent representing the plaintiff 's pump.
That decision is an interesting illustration of the fact that French courts are setting limits on copyright access for applied art. In this respect, aesthetic and ornamental considerations are a critical element in the test."
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