Sequential cumulation of copyright with protection of products of industrial design. A critique, and an alternative proposal – Article from #2 2019

Until the second half of the twentieth century, copyright protection of works that at the same time had a practical use and an aesthetic appeal was based on the premise of ‘separability’, meaning different sets of rules for protecting its aesthetic and utilitarian features. This premise was coherent with the typical mode of production consisting of artistic elements added to the functional ones. This approach evolved in a more organic functionalist conception of the aesthetics of material goods under the activity of industrial design, i.e. series production of objects for practical use, where functional and aesthetic profiles are merged into one. This rendered separate legal protection inherently problematic, but also resulted in negative impacts to competition. Against the currently dominant view of most interpreters and adopted by the European Court of Justice, I propose an alternative interpretation in the scope of EU law to allow for the parallel (but not cumulative) coexistence of the two types of protection, each with its own specific scope to be determined on the basis of the difference in the objective market use of the work of design, which could favour dynamic competition and ultimately benefit the majority of consumers.