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The CJEU has delivered its judgment in Mio/konektra (C-580/23 and C-795/23), addressing three major aspects of EU copyright law: the criteria for protecting works of applied art, the evidentiary requirements for proving copyright subsistence, and the approach for determining copyright infringement. The decision largely aligns with AG Szpunar’s Opinion and continues the jurisprudence developed since Flos and Cofemel, while also clarifying the interaction between copyright and design rights.
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The referring courts presented three questions: first, whether applied art requires anything beyond originality to be protected; second, how copyright subsistence should be demonstrated, considering factors such as intention, derivation, alternatives, and contextual evidence; and third, whether infringement should be assessed solely through the originality-based Infopaq test or whether some added criterion, such as recognizability of copied choices, should be adopted.
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The CJEU confirmed that originality is the only requirement for applied art, compelling Member States to remove additional statutory criteria such as Italy’s “artistic value” requirement, though courts may still apply similar reasoning under the label of originality. Regarding subsistence, the Court stressed that originality cannot be presumed and must be proven with context-relevant evidence, and that an author’s intentions are irrelevant unless expressed in the work. On infringement, the Court retained the Infopaq approach but added that copied creative choices must be “recognizable” in the allegedly infringing work, a safeguard that introduces uncertainty since recognizability varies depending on the observer and context.
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While the ruling confirms key principles and aligns with AG Szpunar’s analysis, it leaves lingering ambiguity, particularly concerning the recognizability requirement in infringement. The decision provides doctrinal clarity on originality and applied art, yet risks cosmetic statutory reform and complicated evidentiary disputes. Fifteen years after Infopaq, the expected final clarity remains elusive, ensuring that interpretative challenges—and further referrals to the CJEU will likely continue.