Author’s own personality reflected in works of applied art? CJEU rules on subsistence and infringement in mio/konektra

The question of copyright subsistence in EU copyright law will never get old. In the InfoSoc Directive, the EU legislature harmonised some of the economic rights, but left entirely unaddressed the question of what requirements a copyright work should exhibit to be protected in the first place. This has left a huge task in the hands of the Court of Justice of the EU (CJEU) and provoked a long line of case law – from Infopaq, BSA and Painer, among many others, through Levola Hengelo, Cofemel and Brompton, all the way to its most recent pronouncement in mio/konektra in December 2025, to which this post turns. This will not be the last time for the EU’s highest court in handling the issue. As of today, two more cases are pending (Gândul Media Network and Institutul G. Călinescu).

Facts

The joined cases mio/konektra were referred to the CJEU by Sweden (the Svea Court of Appeal, Patent and Commercial Court of Appeal in Stockholm) and Germany (the German Federal Court of Justice). The works at stake fall within the notion of ‘works of applied art’, which very often raise a difficult tension between copyright and design law. The claimants argued that the defendants infringed their copyright in the Palais Royal table and the USM Haller shelving furniture (see below) to the extent that the defendants have manufactured, marketed and sold items that exhibit strong similarities to the two works. The defendants countered that the items are not protected with copyright law. The Advocate General’s (AG) Opinion was delivered in May 2025 (see here for a comment). The case raises important questions of overlapping rights (design and copyright), copyright subsistence and infringement.

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The design and copyright overlap

Works of applied art naturally invite a discussion on whether the object can be protected cumulatively with copyright and design law. The CJEU clearly and rightly reiterated that there is “no relationship of rule and exception between the protection reserved for designs and the protection ensured by copyright” (para 56). The two regimes pursue different objectives and are subject to distinct rules. Thus, from the copyright law perspective, as per Cofemel, a work would be protected when two cumulative requirements are met: (i) it is an original subject matter in the sense of the author’s own intellectual creation, and (ii) protection is reserved to the elements that are the expression of such creation. Consequently, in copyright law works of applied art should meet exactly the same originality standard as any other type of subject matter; and nothing more.

Originality, creative process, author’s intentions and other factors

Next, the CJEU had to unpack the notion of originality. The chimera of “author’s own intellectual creation” has loomed over the Court ever since Infopaq. Over time, the CJEU has put more flesh on the bones of the standard. This time round, the question revolves specifically around whether it is necessary to consider factors relating to the creative process and the author’s intentions or focus only on the elements that are perceptible in the subject matter itself.

Central to establishing the presence of an original subject matter is that it constitutes the “expression of free and creative choices reflecting the personality of the author” (para 61). A large part of the discussion on the copyright protection of works of applied art revolves around the technical considerations that dictate these works or parts of them. Works dictated solely by their technical function will not be considered original (para 64); equally, artistic and aesthetic considerations may play a part in the creative activity, but the fact that a design generates such an effect does not lead to the work being original in the eyes of copyright law (para 67).

Having told us what originality is not, the Court then turns to a positive definition - the factors that may play a role in pushing a work over the originality threshold. First, looking at the author’s intentions during the creative process, the CJEU draws on the idea/expression dichotomy, as well as the well-established principle that a copyright work needs to be identifiable with sufficient precision and objectivity. Authorial intentions are ideas, says the Court, and remain unprotected unless expressed in the work itself. To that end, the CJEU lays the emphasis on the creative output, concluding that when assessing the originality of the subject matter the court “may take into account the creative process and the author’s intentions, provided that those elements are expressed in that subject matter itself, but it cannot base its assessment decisively on those elements” (para 75).

It seems that the CJEU is well focused on the output as opposed to the process of creation. Since the copyrightability analysis should be an objective assessment, in these specific circumstances of works of applied art, this is the correct approach. Nonetheless, while it is perfectly possible to not be able to objectively infer originality from looking at the process only, the same is true if one looks at the output only. The way AI-generated works come to life might sometimes obscure the human involvement in these – giving an AI system instructions might lead to original-looking output. Therefore, infusing a higher evidentiary burden on the creator of the work when AI has been used by insisting on revealing more about the creative process is necessary.

Courts will be better equipped to “seek out and identify the creative choices” (para 65) in a work if they know how the creator carried out the creative process. This already seemed to be a problem in AI/copyrightability situations in the US Copyright Office, where the creator of Théâtre D’opéra Spatial refused to limit his claim to exclude its non-human authorship elements. Thus, more transparency on the creative process might indeed be needed and this will also be in line with principles of legal certainty under EU copyright law, whereby the legal provisions must ensure that the authorities and third parties against whom protection is claimed are able to identify clearly and precisely the subject matter (para 72 of mio/konektra). The notion of creative process is not always to be equated to authorial intention.

On the question of what other factors may be considered when assessing protectability, the CJEU states that the assessment should include all relevant aspects of the particular case “as they existed when the subject matter was designed, irrespective of factors external to and subsequent to the creation” (para 77). Consequently, following the AG’s opinion, the use of already available shapes would not bar protection, as the originality may be derived from the arrangement of those shapes.

Next, in para 79 the CJEU seeks to clarify the copyrightability of “variants” of a work, when the later work is created by the same author and when authors are different. The language in this paragraph is particularly confusing as it refers to subject matter taking “inspiration from existing subject matter”, which tends to lie on the idea side of the idea/expression dichotomy, namely unprotectable subject matter. The court is also mindful of the many design limitations when it comes to functional objects, therefore it reminds cautiously that in those cases independent creation of highly similar or identical objects is highly possible.

Finally, displaying a work in art exhibitions or museums, recognition in professional circles and other circumstances external and subsequent to the creation of the work are not necessary nor decisive in assessing originality.

Recognisability in infringement assessment

The CJEU was also asked to determine whether, when assessing infringement, it is necessary to determine whether the creative elements have been reproduced in the subject matter in a recognisable manner or whether the same overall visual impression is sufficient in that regard. A separate issue was whether the analysis should take into account the degree of originality of the work concerned.

The Court (correctly) takes us back to Infopaq and reminds us that even a “relatively minor part of the work” could be considered infringement provided that it constitutes the author’s own intellectual creation (para 85). Thus, in para 86, the CJEU states that infringement entails an unauthorised use of at least the original creative elements of the protected work. It would have been great had the Court stopped here, but it could not by virtue of the question asked. The CJEU goes (incorrectly, in this author’s view) into the territory of Pelham by stating that to constitute infringement these original elements must have been “reproduced in a recognisable manner in the allegedly infringing subject matter”. The overall impression test is one for designs, says the Court, so it cannot be decisive for copyright law.

Bringing in the recognisability test at this point has many problems. First, nobody knows what recognisability is – according to whose eyes, ears and senses is this to be judged? Second, Pelham concerned phonogram protection, namely entrepreneurial rights, which arise without the need to satisfy the originality test. Without any justification or explanation, the CJEU injects this recognisability approach into authorial works’ protection, specifically works of applied art, which as we have heard should satisfy exactly the same standard of protection as all other authorial works – nothing more, nothing less. The CJEU tackles this issue in only one paragraph – para 86 – and if it were to genuinely engage in equating the copyright infringement test across the board regardless of the type of subject matter, then it should have concerned itself with the difference in nature between the two categories of works. As we were reminded by the AG in Pelham II, authorial works are protected as a result of their creative authorial expression, while entrepreneurial works follow the investment narrative.

When discussing common source of inspiration, rather confusingly the CJEU makes reference to the “new creative elements” of a derivative work being original and the necessity of sanctioning the reproduction only of those new creative elements. The logic here is correct, but the language is completely outside the toolbox of copyright law. To bring in notions such as “new”, which hints at novelty, in a case concerning copyright and design law, whereby for the latter the notion of novelty is part of the protectability requirements, is completely wrong and creates confusion.

Conclusion

There is much to like about this judgment, while other parts leave us wondering. It is great to hear (once again) that copyright and design protection come with different rationales and do not exclude each other’s existence. Equally, insisting on legal clarity by drawing a hard line on authorial intention is also welcome. At the same time, this is a missed opportunity to lay the emphasis a bit more strongly on the creative process and put the evidentiary burden more firmly on those claiming copyright protection for less traditional subject matter. The issues of AI-generated output should have acted as convincing pointers. The CJEU could have been slightly more careful when it comes to the language it uses to paint the legal tests – copyright law does not protect inspiration, but expression; the notion of ‘new’ does not have a place in copyright subsistence tests; and finally, the recognisability test, if intentionally imported from entrepreneurial rights cases, deserved to be fleshed out better.