On 8 May 2025, Advocate General (AG) Szpunar of the European Court of Justice (CJEU) issued his long-awaited opinion in the Mio and Konektra cases.

These cases concern two separate proceedings – in Sweden and Germany – where furniture manufacturers claim that their copyright was infringed by another party's sale of identical products. In both instances, the national court referred the case to the CJEU with preliminary questions on the concept of a "work" and the infringement of this within the meaning of EU copyright law. The preliminary questions addressed: the relationship between copyright protection and the protection afforded by design law; the criteria for assessing the originality of a copyrighted work; and the criteria for assessing infringement of copyrights in comparison to design rights.

The AG's opinion

Relationship between protection under copyright and design law

The AG first examined whether there is a relationship of rule and exception between protection under design law and copyright law that implies that stricter requirements must be applied when examining the originality of works of applied art than in the case of other types of work.

The AG concluded that there is not. The reflection of the author's personality and expression of their free and creative choices are the decisive factor in assessing originality and protection under copyright law. This makes the assessment of copyright protection subjective, while the assessment for novelty under design law is objective. There is no legal basis for imposing a higher originality standard on works of applied art.

Assessing originality of a work of applied art

The second preliminary question concerns how relevant the creative process, the author's intentions, post-creation events and the "state of the art" are in assessing originality.

The AG reaffirmed that the assessment of originality requires a factual analysis, for which there is no one-size-fits-all approach. The courts must review if the individual object expresses the free and creative choices that reflect the personality of the author. Interestingly, the AG remarked that a risk of confusion arises when the terms "artistic" or "aesthetic" are used to characterise the choices made by the author. According to the AG, the term "artistic" evokes a value judgment in the sense of a relatively high degree of artistic success. However, such judgments are not relevant in copyright law: protection is in no way conditional on the artistic (or other) quality of the work, including for works of applied art. This seems to reject the approach historically applied in Germany.

The author's intentions are, moreover, not a decisive factor in assessing originality. The creative choices of the author must be capable of being identified and taken into account as they appear in the work. The same goes for additional circumstances: the author’s intentions during the creative process, their sources of inspiration and use of known shapes (including prior patents), the likelihood of a similar independent creation, or the recognition of the subject matter by professional circles may be taken into account for the purpose of assessing the work's originality, but are not decisive. The court assessing the object must always rule based on the originality of the work.

Assessing copyright infringement

The AG confirmed that in order to establish copyright infringement, courts must determine if creative elements that express choices reflecting the author's personality have been copied in a recognisable manner in the allegedly infringing object. In the context of copyright, it is not the overall impression that distinguishes two works from each other, but the details that make these works unique and personal. This is a different approach than under design law, where the overall impression is decisive.

Once a work meets the originality threshold, it is entitled to full copyright protection under EU law. The level or degree of originality does not affect the scope of protection: protected means protected.

Implications

The AG's opinion is a welcome clarification on the harmonised status of copyright protection for works of applied art, after conflicting rulings by national courts. The AG clearly breaks with the notion that artistic merit is relevant for the protection of these works. This seems the only correct approach that is in line with previous CJEU rulings such as Cofemel. We will have to wait for the CJEU to rule in the Mio and Konektra cases to see if it agrees.