The Status of Three-Dimensional Functional Works Post-Cofemel: An Empirical Analysis of the Member States’ Case Law

In 2019, in the Cofemel case, the CJEU ruled that the originality requirement of the author’s own intellectual creation was the same for all copyright works including works of applied art, also called three-dimensional (3D) functional works. This originality requirement had been stated in a general way in the Infopaq case but it was never completely clear it applied to all authorial works so that many countries which had a higher originality requirement (such as artistic or aesthetic value, merit or character) carried on applying it. With the ruling in Cofemel, which was subsequently restated and further substantiated by the CJEU in Brompton, requiring aesthetic character for 3D functional works is now against EU law. This chapter examines whether national courts are respecting the CJEU case law in relation to the originality requirement for these 3D functional works in most of the Member States which had a requirement of artistic merit, namely Portugal, Germany, Italy, Denmark, Finland and Spain. The conclusion is that, over two years on, many courts in those Member States are still not complying with Cofemel, therefore not only breaching EU law but contributing to the state on disharmony across the EU.