Unities of Art: Reconciling Function and Copyright

Abstract

Copyright protection for works of applied art poses certain challenges, primarily due to the functional aspects that they often incorporate. The approach to this predominant attribute, i.e. function, has shaped legal initiatives for copyright protection to works of applied art. In some countries, such as France, the design industry was colored by the prevalence of rather ornamental creations, with an eye toward fidelity to the craft tradition. Copyright law in these countries was able to embrace the applied arts more easily, elevating them to the level of fine arts and reviving the old unity of craft/art. On the other hand, some countries where function and standardization have been paramount, i.e. Germany in particular, have constructed their national strategy, and correspondingly copyright protection, within the framework of another form of unity. Instead of adhering to the old craft tradition, these countries opted for a unity between art, function and industry. This latter form of unity and the predominance of function and industry stamped the modern design to a far greater degree than the former one did. Against this historical-factual background, this article attempts to formulate rough guidelines for the application of a functionality doctrine, which has gradually emerged from the case law of the Court of Justice of the European Union. In line with the unity of art, function and industry, the article suggests to take what is termed a holistic approach to