Opinions by European Copyright Society in CJEU Cordoba and Cofemel cases

The European Copyright Society (an independent scholarly association to which several CREATe members contribute) has published two opinions regarding the CJEU cases C-161/17 Land Nordrhein Westfalen v. Dirk Renckhoff (the ‘Córdoba case’) and C-683/17 Cofemel v G-Star.

The Córdoba case, which has already been decided by the court, primarily involved questions on the right of communication to the public within the meaning of Article 3(1) of the InfoSoc Directive. The case concerned the use of a photographer’s picture of the city of Córdoba in a student’s slide presentation, which was subsequently made available online by their school. In contrast to the opinion of the Advocate General (Campos Sánchez-Bordona), the CJEU held that this act was a communication to the public per the InfoSoc Directive.

In the opinion of the ECS, if and when a similar situation should arise in the future, due consideration should be given to the application of copyright exceptions under Article 5(3) of the InfoSoc Directive (such as for education or quotation purposes). The opinion also stresses that copyright exceptions and limitations should be interpreted in light of the fundamental human rights at stake, and suggests the introduction of a de minimis rule when making these decisions.

The Cofemel v G-Star case, a decision that is currently pending, concerns the question of whether Member States can determine their own threshold of originality for art, industrial designs and works of design (utilitarian works). Currently, the CJEU applies a standard of originality which is “the author’s own intellectual creation”. This may be in contrast to some Member States (such as Portugal and Italy) which have a higher standard of originality for these types of utilitarian works.

The opinion of the ECS submits answers to the questions currently posed to the court, suggesting three potential options. First, the court may determine that Member States should be left to assess the appropriate level of originality for both registered and unregistered designs of utilitarian articles. Secondly, the court may allow Member States to set different levels of protection for registered and unregistered designs. Thirdly, the standard of originality as set by the CJEU (“the author’s own intellectual creation”) could be harmonised for all works.

The opinion of the ECS in the Córdoba case is available here, and in the Cofemel v G-Star case here.

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