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The Need to Re-define the Protection Thresholds in Copyright Law. Cumulative Protection of Designs and Works of Applied Art

Today we are seeing the emergence of new technologies. This has a great impact on the existing intellectual property and constitutes a challenge as well as a task for academics to tackle. What is currently crucial is the re-definition of the protection thresholds in copyright law.

Last Update: 24.03.22

[Cumulative Protection] “Cumulative Protection” means that several intellectual property rights overlap with the same subject matter or object. In fact the protection of a design may be based not only on design law but also on copyright law, trademark law, patent law and unfair competition law. The system of cumulative protection is not perfect and gives rise to different problems. It seems that in the case of designs, protection granted for a maximum of 25 years is sufficient for the amortization of expenditure made by the eligible entity and it is not appropriate to grant them a long-lasting copyright protection. Prof. Dietz expressed an opinion that the system of protection of designs should “relieve” the system of copyright protection, which would be manifested in their clearer separation[1]. However, at present it would be very difficult to implement this suggestion. Therefore, the current IP system should be rethought from the beginning and then restructured.

[CJEU] The overlap between designs and copyrights is currently discussed. There are some cases of the Court of Justice of the European Union in which that issue has been raised. Firstly, the overlap between designs and works of applied art was discussed in case C-168/09 Flos SpA v. Semeraro Casa a Famiglia SpA. Secondly, the CJEU in its judgment in case C-683/17 Cofemel SA v G-Star Raw CV declared that “the criteria for assessing whether subject matter is protected as a work under copyright law are the same for design objects (‘works of applied art’) as for other work categories”[2]. Thirdly, it was also emphasized by CJEU in case C-833/119 Brompton Bicycle Ltd. v. Chedech/Get2Get that cumulation is not only possible for industrial designs, but can also apply to other intangible goods.

[Polish case-law] National courts face similar problems. The Polish Supreme Court in his judgment of 6.03.2014 (V CSK 202/13) surprisingly granted copyright protection to a simple form of a grave candle. However, in another case of 21.02.2020 (I CSK 513/18), the Polish Supreme Court denied copyright protection to a wheelchair. The Court justified this result by stating that the shape of the product was exclusively dictated by its technical function. Regrettably, the court's justification does not refer to the essence of the problem.

[Aim] As Advocate General M. Szpunar explained (in his opinion in case C-683/17), there are many differences between copyright law and design law. Thus he stressed the role of the courts in the strict application of copyright law with regard to designs (works of applied art) as a remedy to disadvantages resulting from the cumulative protection. The aim of the project is to find a solution to the problem of cumulative protection.

[1] Dietz, Der „design approach” als Entlastung des Urheberrecht in: Straus (ed) Aktuelle Herausforderungen des geistigen Eigentums, 1996, pp. 355–364.

[2] Kur, Unité de l’art is here to stay—Cofemel and its consequences, JIPLP, Vol. 15, Issue 4, 2020, pp.290–300.


Doctoral Student

Jakub Kepinski

Main Areas of Research

I.3 Funktionswandel