The Return of Industrial Copyright

TLDR: In this paper, the potential impact of the Court of Justice's decision in Case C-168/09 Flos v Semararo on the harmonization of European law on the design copyright interface is examined.

Abstract: The paper examines the potential impact of the Court of Justice’s decision in Case C-168/09 Flos v Semararo on the harmonization of European law on the design copyright interface. The paper reviews the travaux of three Directives on Copyright Term, Designs and the Information Society to demonstrate that the legislative organs of the European Union intended to leave the question of the circumstances in which copyright would protect designs, the term of protection, and exceptions to such protection to the laws of Member states. In holding that Member states must protect original designs by copyright under the Information Society Directive, the Court in Flos has contradicted what was agreed by Member states with potentially significant implications. Already, the UK has responded by proposing to remove section 52 of the CDPA, even though when the Designs Directive was adopted, the Patent Office negotiated in Europe successfully explicitly to retain the provision. But the implications of Flos may be much more radical than UK IPO has acknowledged, and in some respects might be said to represent ‘the return of industrial copyright.’ The article concludes by arguing that it would have been preferable for the IPO to wait before proposing amendments to section 52 (in the Enterprise and Regulatory Reform Bill), and instead to approach the Commission with a view to clarifying legislation or simply to wait for further decisions of the CJEU, ensuring (through UK observations) that the legislative history was placed fully before the Court.