Cofemel – Sociedade de Vestuário SA v G-Star Raw CV.
Date: 2019-09-12
29


The concept of ‘work’ that is the subject of all those provisions constitutes, as is clear from the Court’s settled case-law, an autonomous concept of EU law which must be interpreted and applied uniformly, requiring two cumulative conditions to be satisfied. First, that concept entails that there exist an original subject matter, in the sense of being the author’s own intellectual creation. Second, classification as a work is reserved to the elements that are the expression of such creation (see, to that effect, judgments of 16 July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraphs 37 and 39, and of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraphs 33 and 35 to 37 and the case-law cited).
30


As regards the first of those conditions, it follows from the Court’s settled case-law that, if a subject matter is to be capable of being regarded as original, 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 (see, to that effect, judgments of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraphs 88, 89 and 94, and of 7 August 2018, Renckhoff, C‑161/17, EU:C:2018:634, paragraph 14).
31


On the other hand, when the realisation of a subject matter has been dictated by technical considerations, rules or other constraints, which have left no room for creative freedom, that subject matter cannot be regarded as possessing the originality required for it to constitute a work (see, to that effect, judgment of 1 March 2012, Football Dataco and Others, C‑604/10, EU:C:2012:115, paragraph 39 and the case-law cited).
32


As regards the second condition referred to in paragraph 29 of the present judgment, the Court has stated that the concept of a ‘work’ that is the subject of Directive 2001/29 necessarily entails the existence of a subject matter that is identifiable with sufficient precision and objectivity (see, to that effect, judgment of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraph 40).
33


That is because, first, the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected. So also must third parties against whom the protection claimed by the author of that subject matter may be asserted. Second, the need to ensure that there is no element of subjectivity, which is detrimental to legal certainty, in the process of identifying that subject matter means that the latter must have been expressed in an objective manner (see, to that effect, judgment of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraph 41).
34


As emphasised by the Court, the required precision and objectivity is not attained where an identification is essentially based on the sensations, which are intrinsically subjective, of an individual who perceives the subject matter at issue (see, to that effect, judgment of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraph 42).
35


Where a subject matter has the characteristics described in paragraphs 30 and 32 of the present judgment, and therefore constitutes a work, it must, as such, qualify for copyright protection, in accordance with Directive 2001/29, and it must be added that the extent of that protection does not depend on the degree of creative freedom exercised by its author, and that that protection is therefore not inferior to that to which any work falling within the scope of that directive is entitled (see, to that effect, judgment of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraphs 97 to 99).
41


That legislative choice is consistent with the Berne Convention, with Articles 1 to 21 of which the European Union, while not a party to that convention, must nonetheless comply, pursuant to Article 1(4) of the WIPO Copyright Treaty, to which it is a party (see, to that effect, judgment of 13 November 2018, Levola Hengelo, C‑310/17, EU:C:2018:899, paragraph 38 and the case-law cited).
46


As regards copyright, it is apparent from Article 9 of Directive 2001/29, headed ‘Continued application of other legal provisions’, which must be interpreted taking into account, inter alia, all language versions of that article (see, to that effect, judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 122 and the case-law cited), and in the light of recital 60 of that directive, that Directive 2001/29 does not affect the existing provisions of national law or EU law in other areas, not least provisions concerning designs.