BGH poses questions to ECJ for clarification of the Copyrighted Work Concept
The I. Civil Senate of the Federal Court of Justice (BGH), responsible for copyright issues, has referred questions to the Court of Justice of the European Union (ECJ) for further clarification of the concept of a copyrighted work as developed in the ECJ’s jurisprudence.
Background of the Case
The plaintiff, based in Switzerland, manufactures the well-known modular furniture system „USM Haller“, which has been distributed for decades. This system consists of high-gloss chrome-plated round tubes connected by spherical nodes, into which metal panels of various colors (referred to as ‘shelves’) can be inserted. The modules can be freely combined and expanded.
Defendant 1, led by Defendant 2, distributes replacement and extension parts for the USM Haller system through their online store, closely matching the original parts in form and color. After redesigning their online store in 2017/2018, where all components needed to assemble complete USM Haller furniture are listed, the defendant also offers an assembly service.
The plaintiff considers the USM Haller system to be a copyrighted work of applied art or at least a performance result protected against imitation under fair competition laws. They view the online store’s redesign by the defendant as an attempt to offer not just replacement parts but a furniture system identical to theirs.
Previous Legal Proceedings: USM Furniture: Protected by Copyright or „merely“ by Unfair Competition Law?
The Regional Court of Düsseldorf largely upheld the plaintiff’s claim based on copyright (Judgment of July 14, 2020 – 14c O 57/19). However, the Higher Regional Court of Cologne rejected the copyright claims, recognizing only the competition law claims (Judgment of June 2, 2022 – 20 U 259/20).
The Higher Regional Court reasoned that the USM Haller system does not meet the requirements for a copyrighted work of applied art, as its design features do not reflect free creative decisions. However, the plaintiff’s claims were justified under the aspect of competition law protection.
Both parties have filed appeals. The plaintiff continues to pursue their copyright claims, while the defendants seek complete dismissal of the lawsuit.
Decision of the Federal Court of Justice
The BGH has suspended the proceedings and referred three questions to the CJEU regarding the interpretation of the concept of a work in Art. 2(a), Art. 3(1), and Art. 4(1) of Directive 2001/29/EC. This referral is due to the lack of obvious interpretation, as evidenced by a similar request for a preliminary ruling by the Swedish Patent and Market Court of Appeal (Case C-580/23). The questions include whether the appellate court correctly assumed an exceptional nature of copyright protection for works of applied art and whether the assessment of originality should consider the creator’s subjective perspective or an objective standard. Additionally, it is to be clarified whether circumstances arising after the creation of the design, such as its presentation in art exhibitions, can be considered in the assessment of originality.
To the point
This matter raises intriguing questions regarding the protection of works of applied art. The Higher Regional Court of Düsseldorf focused on the subjective creative process, suggesting a lack of artistic freedom due to technical considerations. In contrast, the Federal Court of Justice’s jurisprudence emphasizes the importance of the object of creation, meaning the result of the creative process from the perspective of an objective observer. Additionally, there is a discussion on whether events occurring after the creation, such as inclusion in a permanent exhibition of design classics, should be taken into account. Furthermore, the debate continues on whether design protection should take precedence over copyright. The final resolution of these issues remains to be seen.
