The Court of Justice of the European Union’s (CJEU) recent resolution in the Brompton case, already discussed in this blog, has come under the spotlight recently. A similarly interesting ruling is the Barcelona Provincial Court of Appeals judgment in the “Latina” Streetlight case (ES:APB:2020:2644), which also addresses possible cumulation of protections, in this case industrial
The Court of Justice of the European Union’s (CJEU) recent resolution in the Brompton case, already discussed in this blog, has come under the spotlight recently. A similarly interesting ruling is the Barcelona Provincial Court of Appeals judgment in the “Latina” Streetlight case (ES:APB:2020:2644), which also addresses possible cumulation of protections, in this case industrial design and copyright.
The disputed facts can be summarized as follows: In 2012, a Barcelona architect filed a claim against the state of Qatar and the Ashghal public works authority after noting that over a thousand replicas of the “Latina” streetlight — that she had designed — had been installed on of one of Doha’s most high-profile streets without her consent. The architect claimed authorship on her creation and said her moral rights had been infringed. This again raised the complex debate in our courts on whether a creation that constitutes industrial design can merit copyright protection.
The Provincial Court of Appeals, in line with the Commercial Court, classified the “Latina” streetlight as subject to copyright, cumulatively protected by design and intellectual property laws. To reach this conclusion, it first offers a theoretical analysis of the case law criteria followed by the CJEU in this area, and states:
- That not any design can be subject to copyright, but only those with a certain degree of originality and creativity.
- That a higher level of creative ability cannot be required to protect designs by copyright; they need only to fulfill the concept of work.
- That, to be considered a work, a creation must be original and constitute an intellectual creation of its author. That is to say, it must reflect their personality and demonstrate free and creative decisions.
- That it is up to national courts to interpret what should be considered a work and, therefore, to limit the protection of designs and creations subject to copyright without undermining any of these legal systems.
- That, to judge originality: (i) the aesthetic elements of the creation should not be considered alone, since their intrinsically subjective character gives no indication of whether decisions have been freely made or not; and also (ii) it is necessary to distinguish which components are merely functional and which are not, as only the latter could be based on free decisions by the creator and therefore be protected by copyright.
In accordance with these criteria, the Provincial Court of Appeals has examined the case and concluded that the “Latina” streetlight is original because its author has exceeded the technical requirements arising from the practical purpose of any streetlight. The resolution highlights that it is a new creation, moving away from the tradition form of streetlights. Therefore, the court believes that the creation’s shape — resembling a port crane or a boat’s sail — is not conditioned by its function but reflects its author’s free, creative choice.
However, this resolution was not reached unanimously and it is worth summarizing the dissenting vote of the judge Luis Rodríguez Vega, supported by José María Fernández Seijo.
Both judges believe that the “Latina” streetlight is not a work because it does not have the artistic significance that originality requires. That is to say, the judges understand that an author must be guided by their creative will and not arbitrarily. Therefore, it is the moment of creation that determines whether intellectual property rights can be attributed to the result. That itself depends on whether the author is capable of explaining the significance of the work and proving that an informed observer would recognize it.
The claimant states that the “Latina” streetlight “establishes a dialog between the cranes of the vessels permanently moored in the port and the lamps installed on the piers”, and the judges consider that the streetlight resembles the port cranes and therefore merely imitates them. Consequently, and without calling the beauty of the imitation into question, it is merely an industrial design and not a work of art.
The judges also state that the claimant has not been able to identify the specific elements of the “Latina” streetlight that could be subject to copyright. Since the author requests protection for the whole streetlight, only the industrial design could be accepted, as only it protects the singularity of its appearance.
Given the great practical significance it will have for similar cases, it is likely that this resolution will end up in the Supreme Court. We will monitor its development and any other cases related to applied art.
Author: Paula Conde