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
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."
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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On 8 September 2016 (C-160/15), the CJEU ruled that the posting of a hyperlink to copyright-protected works located on another website does not constitute copyright infringement when the link poster does not seek financial gain.
The chapter on the UK summarises the IP court and litigation system in the UK, recent developments in relation to IP law and practice, the forms and availability of IP protection and trends and outlook in the IP sphere.
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