European Copyright Society issues its Opinion in the CJEU Cofemel case

On October 26 2018, the European Copyright Society issued its Opinion in the Cofemel case C-638/17. The European Copyright Society (ECS) was founded in January 2012 with the aim of creating a platform for critical and independent scholarly thinking on European Copyright Law. Its members are scholars and academics from various countries of the European Union, seeking to promote their views of the overall public interest. The Society is not funded, nor has been instructed, by any particular stakeholders.

This ECS opinion relates to a case pending before the Court of Justice of the European Union (CJEU). In essence, the question posed by the national court to the CJEU is whether Member States have freedom to choose the level of originality pertaining to works of applied art, industrial designs and works of design or whether they must apply the CJEU standard of "the author's own intellectual creation" to such works. The Opinion gives the pros and cons of three options namely letting the Member states choose the originality standard, harmonise the standard for all works including work of applied art with the author’s own intellectual creation or have different standards depending whether the wok of applied art is registered as a design or not.

Professor Derclaye was the main contributor to the Opinion.