The treatment of works of applied art under Portuguese law in the post-Cofemel era

The preliminary ruling of the Court of Justice of the European Union (CJEU) in C-683/17 Cofemel (Cofemel) addressed two issues. First, partial cumulation was unequivocally established. Not all designs may be protected by copyright. Only those that qualify as ‘works’ deserve cumulation of protections. Second, the CJEU considered that the concept of ‘work’ is already harmonized, being an autonomous and uniform concept of the European Union (EU). Copyright protection requires originality in the sense that the subject matter at issue is an intellectual creation of its author, and the subject matter must be expressed in an identifiable object with sufficient precision and objectivity. Yet, the CJEU Cofemel ruling was vague and ambiguous. It did not provide guidelines capable of leading to coherent and predictable case law, expressing a uniform understanding of what an ‘artistic creation’ is regarding designs, works of applied art, and works of design, under article 2(1)(i) of the Portuguese Copyright and Related Rights Code. The absence of consensus regarding this concept is the main reason for the divergent and unpredictable national case law. The Portuguese provision is not clear and there were different approaches in national scholarship. This led to the twofold inquiry made by the Portuguese Supreme Court, but the issue remains unsolved. After the CJEU Cofemel ruling, the question of what should be understood as ‘artistic creation’ has been deepened by scholarship, which, as before, has influenced the national case law in the post-Cofemel era.