EuGH News

In its judgment of 11 June 2020 (C - 833/18), the Court of Justice of the European Union stated that

"Articles 2 to 5 of Directive 2001/29 must be interpreted as meaning that the copyright protection provided for in those articles applies to a product whose shape is necessary, at least in part, to obtain a technical result, where that product is an original work of intellectual creation, because, by choosing the shape of the product, the author of the work expresses his creative capacity in an independent manner by making free and creative choices, so that that shape reflects his personality. It is for the national court to determine whether that is the case, taking into account all the relevant aspects of the dispute in the main proceedings".

Thus, at first sight, the Court of Justice of the European Union seems to soften its strict position on the demarcation of copyright from technical solutions accessible by patent protection. At the same time, however, the Court of Justice of the European Union makes clear that in this respect it is sticking to its previous statement that copyright protection is not accessible "if the creation of an object was determined by technical considerations, by rules or by other constraints which left no or only such a limited scope for the exercise of artistic freedom that the idea and its expression coincided" (para. 31). It can therefore be concluded that, despite a high degree of technicality, certain expressions of a product may nevertheless constitute a creative aspect of their own, and thus be eligible for copyright protection, if the implementation is not limited to the execution of the technical idea.

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