ITALY Trends and Developments Contributed by: Pier Luigi Roncaglia, Francesco Rossi, Riccardo Perotti and Noemi Parrotta, Spheriens
in museums or galleries, publication in special - ised journals, awards, and a market value that surpasses mere functionality or the fame of its creator (ruling No 7477/2017). Such a request for objective “historicisation” certainly has the merit of bringing predictability to a requirement as inherently susceptible to widely varying inter - pretations as that of artistic value. However, it makes it challenging, if not nearly impossible, for design works by relatively unknown artists to qualify for copyright protection. The Cofemel decision as a second (potential) turning point Despite its potential flaws, the issue of copyright protection for design appeared to be settled on the “objective” approach mentioned above. Indeed, Article 17 of Directive 98/71/EC pro - vides that “a design protected by a design right registered in or in respect of a Member State in accordance with this Directive shall also be eli - gible for protection under the law of copyright of that State” and that “the extent to which, and the conditions under which, such protection is con - ferred, including the level of originality required, shall be determined by each Member State” (see also Article 96.2 of Regulation 6/2002/EC). Based on this provision, it was reasonable to assume that the requirement of “artistic value” was excluded from the harmonising authority of the EU Court of Justice, which instead left this to the discretion of national legislators. However, the cards were reshuffled once again by the 2019 Cofemel ruling of the Court of Justice. The case arose from a referral by the Supreme Court of Portugal, a country where the legislation on design protection through copy - right law is substantially similar to the Italian one. The Court was asked to determine whether it is compatible with EU law for national legislation to confer copyright on works of applied art, indus -
trial designs and works of design: 1) “which, over and above their practical purpose, create their own visual and distinctive effect from an aesthetic point of view, their originality being the fundamental criterion which governs the grant of protection in the area of copyright?”; and 2) “if, in the light of a particularly rigorous assessment of their artistic character, and taking account [of] the dominant views in cultural and institutional circles, they qualify as an ‘artistic creation’ or ‘work of art’?” In answering the first question, the court noted that all objects, including design objects, that represent “works” must benefit from copyright protection; and that, in line with its previous case law, for an object to be considered precisely a “work”, two and only two conditions must be met. The first is the requirement of “originality”, which occurs when the subject matter is “the author’s own intellectual creation”, for which “it is both necessary and sufficient that the subject matter reflects the personality of its author, as an expression of his free and creative choices”. The second condition is “the existence of a subject matter that is identifiable with sufficient precision and objectivity”. The court went on to note that design law and copyright law may in certain situations overlap, but pursue different objectives and are sub - ject to different disciplines: in particular, while on the one hand design protection is intended to protect “subject matter which, while being new and distinctive, is functional and liable to be mass‑produced” and “is to apply for a lim - ited time, but sufficient time to ensure a return on the investment necessary for the creation and production of that subject matter, without thereby excessively restricting competition”, on the other hand “the protection attached to copyright, the duration of which is significantly
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