On 8 May 2025, Advocate General Szpunar issued his long-awaited Opinion in two pending referrals to the Court of Justice of the European Union in the Mio and USM Haller/konektra cases (Joined Cases C-580/23 and C-795/23), related to questions of substantive EU copyright law with respect to works of applied art. Unfortunately, however, the Opinion does not appear to be persuasive in all respects.
1. Babylonian confusion in EU Copyright law?
When it comes to language and terminology, mankind is often tempted to speak of Babylonian confusion. Reviewing the past two decades of EU copyright law and practice, parallels with respect to the building of the Tower of Babel are astounding. In fact, while all major languages, according to the translations provided by the Court of Justice of the EU ('CJEU'), proceeded from the notion 'creative freedom', the CJEU's German version, occasionally but incorrectly, used the term 'artistic freedom' instead (as observed here).
Only recently, on 20 February 2025, the German Federal Supreme Court conceded that the correct terminology would be 'creative', insisting (Case I ZR 16/24, para 23), however, far from being persuasive, that other notions such as 'creative' ('schöpferisch'), 'creative' ('kreativ') or 'original' ('originell') are synonymous with 'artistic'. As if confusion could not be greater, the Advocate General ('AG'), on 8 May 2025, stated (Joined Cases C-580/23 and C-795/23, para 43):
Indeed, it seems to me that a risk of confusion arises when the terms 'artistic' or 'aesthetic' are used to characterise the choices made by the author of a work or the result of his or her creation. It is true that, in certain senses, those terms may be understood as synonymous for 'creative choices'. (...) As for the term 'aesthetic', it may be understood as referring to all the creator's choices that are not linked to technical or functional constraints. However, not every aesthetic choice necessarily reflects the personality of the creator and therefore not every aesthetic choice confers originality. (...)"
However, unfortunately, the latter conclusion is not supported by the CJEU case law cited by the AG; rather, the CJEU, in Cofemel (C-683/17, ECLI:EU:C:2019:721), dismissed the argument that an aesthetic effect (not: choice) does not, in itself, permit a subject matter to be characterized as existing and identifiable with sufficient precision and objectivity (para 53) and also does not, in itself, make it possible to determine whether that design constitutes an intellectual creation reflecting the freedom of choice and personality of its author, thereby meeting the requirement of originality (para 54). Consequently, according to the CJEU, the circumstance that designs such as the clothing designs at issue in the main proceedings generate, over and above their practical purpose, a specific and aesthetically significant visual effect (not: choice) is not such as to justify those designs being classified as 'works' (para 55).
Apart from that, creativity is not limited to aesthetics (James Watt was creative when inventing/improving the steam engine), which is why the notion should be 'aesthetic creative choices' or 'aesthetic creative freedom' as explained elsewhere.
Lastly, it seems that the AG would suggest replacing the notion of 'originality' with 'unique character' (para 30; see also paras 56, 60, 62 and 74). Such approach appears to merit careful consideration, especially in light of existing research on originality (e.g., here and recently here).
2. Criteria for assessing originality under EU Copyright law
It is highly appreciated that the AG concluded that the CJEU (in 'Cofemel' para 52) did not establish a 'relationship of rule and exception between protection under design law and the protection ensured by copyright' (para 34). However, to the extent that the AG stated that '(...) although in practice this situation arises less frequently, an original subject matter may not have individual character if it is not sufficiently distinctive, in terms of visual appearance, from existing shapes (...)' (para 36), this appears to be questionable. Adequately considering that the main difference, under a correct reading, between design and copyright protection, is the one-to-one comparison (or single comparison) in design law versus an overall comparison (or holistic approach) in copyright law as elaborated, for instance, here and here, makes this scenario appear rather unlikely.
Most importantly, the AG's overall conclusion (para 32) that it is 'a criterion of subjective protection' which is allegedly used in copyright law (different from EU design law), again with all due respect, is not supported by any case law but, rather, opens Pandora's Box of legal uncertainty in the courts' daily practice.
Similarly, the consideration of a creator's intentions (para 50), while interesting, raises questions about practical and legal certainty. The German Federal Supreme Court already addressed such possibility but suggested (Case I ZR 96/22, para 35), for the sake of legal certainty, not to consider such evidence. The same position was taken, for instance, here and here. The AG does not address these concerns but at least concludes that proof of the creator's intentions as such 'cannot be considered sufficient' (para 50).
3. Criteria for assessing infringement under EU Copyright law
Turning to the two-step approach of how to determine the extent to which a work, once found original, provides protection (scope of protection) and how to find infringement of that scope, it has been suggested and practiced that the date of creation of the work should be decisive, as found, inter alia, by the German Federal Supreme Court (Case I ZR 71/08, para 18, referring to Case I ZR 127/59) and endorsed here.
Contrary to that, the AG seems to endorse a concept of dilution in EU copyright law (comparable to trademark law) when finding (para 56):
(...) the independent creation of subject matter that are similar or even identical to a particular subject matter, before or after the creation of the latter, may nevertheless constitute an indication of the low degree, or even the absence, of originality of that subject matter. Indeed, as I have already stated, by making creative choices that reflect his or her personality, the author is deemed to create a unique work, different from those that have been, or will be, created independently by others."
Although made in the context of how to find subsistence ('taking account of other factors'), the underlying logic appears to be that such factors would also impact the subsequent exercise of assessing infringement. Unfortunately, the AG's Opinion does not discuss these consequences.
When assessing infringement, the AG finally opined (para 67 and 69):
In copyright law, what distinguishes two works is not the overall impression but the details that uniquely personalise them. (...) Originality does not depend on the difference between the protected work and other subject matter but is inherent to the work and results from the author's personal imprint."
Again, unfortunately, this position taken is not supported by any case law and does not appear practical in daily court-room routine.
Finally, and most regrettably, the AG repeats the unfortunate distortion provided by the CJEU in Cofemel (C-683/17, ECLI:EU:C:2019:721, para 35) when holding that the CJEU has expressly stated that the scope of protection under Directive 2001/29 does not depend on the degree of creative freedom exercised by its author (para 69). However, in doing so, both the CJEU and now the AG misconstrued the clear findings in Painer (C-145/10, ECLI:EU:C:2011:798, paras 97-99) which by no means allow for such conclusion as explained elsewhere.
Ultimately, it is now up to the CJEU to provide further clarity on these complexities in EU Copyright law (for some further critical comments on the AG's Opinion see here).
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.
