Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 21 December 2023 – konektra GmbH and LN v USM U. Schärer Söhne AG
(Case C-795/23, konektra)
Language of the case: German
Referring court
Bundesgerichtshof
Parties to the main proceedings
Defendants, respondents and appellants on a point of law: konektra GmbH, LN
Applicant, appellant and respondent in the appeal on a point of law: USM U. Schärer Söhne AG
Questions referred
The following questions are referred to the Court of Justice of the European Union for a preliminary ruling concerning the interpretation of Article 2(a), Article 3(1) and Article 4(1) of Directive 2001/29/EC: 1
Is there a rule-exception relationship between design protection and copyright protection in the case of works of applied art, such that, when assessing the originality of those works for copyright purposes, higher requirements are to be imposed with respect to the creator’s free and creative choices than for other types of work?
When assessing originality for copyright purposes, is it (also) necessary to consider the creator’s subjective view of the creation process and, in particular, does the creator have to make the free and creative choices knowingly in order for them to be regarded as free and creative choices within the meaning of the case-law of the Court of Justice of the European Union?
If, in the context of the assessment of originality, the decisive consideration is whether and to what extent artistic creation was objectively expressed in the work: Can circumstances occurring after the date of design creation that is relevant for the assessment of originality, such as the presentation of the design in art exhibitions or museums or its recognition in professional circles, also be taken into account for the purposes of that assessment?
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1 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).