Proteção autoral das obras de design na União Europeia após o acórdão Cofemel

The preliminary ruling of the Court of Justice in Cofemel case apparently clarified two open questions. First, the solution of partial cumulation was unequivocally established in the European Union. Not all works of applied art, designs, or works of design may be protected by copyright. Only those that qualify as “works” deserve cumulation of protections. Secondly, the Court of Justice considered that the concept of “work” is already harmonized, being an autonomous and uniform concept of the European Union. Copyright protection requires “originality”, in the sense that the subject matter at issue is an intellectual creation of its author, no other requirements are acceptable in case of works of applied art, designs, or works of design. To be a “work” the subject matter must be expressed in an identifiable object with sufficient precision and objectivity. Nevertheless, the ruling of the Court of Justice in Cofemel case is too vague and ambiguous, not providing guidelines capable of leading to a coherent and predicable case law, expressing a uniform understanding of what is a “creative creation” regarding works of applied art, designs, and works of design. The lack of consensus about the concept in Portugal and the other countries of the European Union has been responsible for the divergent national case law that continues.