Delineation Between Plagiarism, Inspiration and New Creation - The Distinction Between Copyright Protection and EU Design Law Protection for Chairs
Abstract: Industrial design can double up in protected, by copyright protection as well as registered community design protection within EU. Thus, there can be seen a tendency for right holders to take comfort in copyright protection.2 The boundaries between the scope and extensions of the protection forms are not clear, neither to legal professionals nor the industrial professionals. The purpose of the thesis is to examine similarities and differences for copyright respectively RCD protection for chairs as well as the delineation between plagiarism, inspiration and new creation. For the purpose of the thesis, EU legal method has been consequently. The commercial market for designs are often in the literature called the design intensive market, whereas IPRs more frequently plays an crucial role for designers and for actors on the market. A highly recognized design can create a great value for the company’s role in the market. European copyright protection takes its base in Berne Convention from 1884, in addition the European Union have by directives harmonized the legislation with containing concepts. It is foremost the Infosoc-directive that is of referral within the relevant cases. National legislation have previously sought to distinguish the concept of applied work of art from traditional types of work, by being restrained in justifying copyright protection. However, several CJEU judgment have in the recent years emphasized the importance of interpreting work of applied art on the same wavelength as traditional work. For industrial designs, for protection within EU design law, on an international level, the legislation takes base from Paris Convention and the TRIPS agreement. In the aspect of EU´s harmonization purpose, EC established the Directive of Design as well as Regulation of Community designs. A design within the RCD system represents either a registered design or an unregistered design. Cofemel-case can be considered a landmark decision when it comes to copyright protection of work of applied art. The decision have changed the landscape of protection for designs, including chair design, with a pull for copyright protection according to the author. This further means, that for chair within EU, there is a double protection, which makes the author, among others, question the RCD protection. Still, there are similarities and differences for the different forms of protection. Both protection forms require design and function to be separate and for the design to be able to stand alone and not be obligated be the technical features. The concepts of ‘originality’ respectively ‘novelty’ can also be considered similar, however not identical according to the author. The purpose of the legislator was to put the bar a bit lower in regards of ‘novelty’. Still, the author is not convinced that the difference is as high as the legislator had hoped for when the concepts puts to a test. To be able to enjoy RCD design protection, the design needs to fulfil the prerequisites of individual character as well as novelty. Which are strongly linked together according to the author. To show novelty, the design needs to possess individual character and produce a different overall impression on the informed user as any other design. The informed user, is according to the author a professional within the industry of furniture design in this case. The concept of individual character have also been closely connected to the concept of ‘degree of freedom of design’, initiated by the legislator. A low degree of freedom would lower the bar for individual character and vice vera. Which is an incorrect assessment according to the author. Nevertheless, the assessment is highly subjective. A phrasing that is frowned upon within copyright protection legislation, where the assessment always should be objective. To enjoy copyright protection as work of applied art, which is the category that a chair design would fall under, the design must first of all fulfil the prerequisites. The design must be considered ‘work’ as well as ‘original’ and also fulfil the AOIC-test including a free and creative choice, which can be put in parallel with individual character and freedom of design. This also shows, the different purposes of the protection forms. Hence, copyright is on a higher level connected to the author on a personal level in the opinion of the author. The delineation between what is considered plagiarism versus inspiration for the two protection forms can be considered rather blurry, if the author can express her opinion. Nevertheless it is a little bit more straight forward within RCD design protection legislation, since it takes the perspective of the informed user. Hence, the same overall impression will equal plagiarism, and a different overall impression will equal inspiration. However, the author would like to point out again, that this is highly subjective. In regards of copyright protection the assessment is much more complex. The line between plagiarism and inspiration is much thinner and vague. Through the Swedish scapegoat case, it states, that the adapted work needs to be able to stand alone for it to be considered a new work, hence not just an adoption as such as in the Painer-case, however if the work is put in a new context this would give the work a new meaning and thereby put the work on its own legs.
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