Referral C-795/23 (konektra, 21 Dec 2023)

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?

2. 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 caselaw of the Court of Justice of the European Union?

3. 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?