Novelty, Idea or New Meaning as Criteria for Copyright Protection?

Transitions in Swedish Design Law

Abstract

While the CJEU has proclaimed a harmonized concept for the very object of copyright protection – an original work – in a fairly comprehensive bulk of decisions, by mainly defining a protected work as being the result of an author’s own intellectual creation, as expressed in three different EU directives, some recent signs of a Swedish fall-out from that concept are in view,as will be discussed in this text, concerning artistic works and applied art. It is written in the hope that Professor Annette Kur, being a long-time observer of Nordic IP Law and an esteemed link in the academic world between Nordic and Continental IP Law, may take some interest in those possible transitions in Swedish Design Law.
As just indicated, the CJEU has basically borrowed the said terminology from the Computer Programs (Software) Directive and some other directives, but it can be traced back to the Berne Convention’s article on the protection of collections, like anthologies for example, as literary works in their own right. In the eyes of the CJEU a work is an original intellectual creation of the author on condition that it is ‘reflecting his personality and expressing his free and creative choices in its production’. In the landmark Infopaq decision, the CJEU stresses, at no. 35, that the reproduction rights, which were focused on in the case, were valid merely for a work original in the way that it is the author’s own intellectual creation, thus as a result of creative choices, what has eventually become normative for all kinds of works, according to the CJEU.