On 26 January 2012, the Belgian Supreme Court (Hof van Cassatie/Cour de Cassation, the “Court”) handed down a judgment in a case between Artessuto NV (“Artessuto”) on the one hand and B&T Textilia NV (“B&T”) and Indecor-Europe NV (“Indecor”) on the other. The case hinged on the criteria to be fulfilled in order for a work to qualify for copyright protection.
The companies involved in the case are all manufacturers of design textiles. Artessuto had brought an action against B&T and Indecor on the basis of the Law of 30 June 1994 regarding copyright and related rights (the “Copyright Law”). The allegedly protected works at issue were drawings of townscapes which are used in tapestries and cushions. They had been created by a ‘Ms. C.’ under the authority of Artessuto.
The appeal before the Court was directed against a judgment of the Court of Appeal of Ghent (the “Court of Appeal”) of 25 October 2010. In this judgment, the Court of Appeal had held that, for a work to be protected by copyright, it is required that it be ‘original’. Referring to the Infopaq judgment of the Court of Justice of the European Union (case C-5/08), the Court of Appeal had ruled that this implies that the work should constitute the author’s own intellectual creation. The Court had reasoned that an intellectual effort is crucial to give the work the required individual character which gives rise to a certain form and had continued that ‘the form should bear the stamp of the personality of the author’. The Court of Appeal had found that this was not the case for the drawings at hand and, as a result, had rejected Artessuto’s claim.
For its part, the Court held that, in order to be protected pursuant to the Copyright Law, a work should indeed be original, which implies that it constitutes the expression of the intellectual creation of the author. However, the Court specified that it is not required for the work to bear the stamp of the personality of the author. Consequently, the Court found that, by adding this requirement, the Court of Appeal had not legitimately justified its decision. As a result, the Court quashed the judgment of the Court of Appeal.
The criterion that a work should bear the stamp of the personality of the author had been introduced by the Screenoprints judgment of the Benelux Court of Justice which had interpreted the requirements for a copyright-protected work in the context of a decision on Benelux design rights. The requirement for a copyright-protected work to bear the stamp of the personality of the author has subsequently been applied by several courts in Belgium and The Netherlands. With its judgment of 26 January 2012, the Court seemingly wishes to indicate that a work does not necessarily fall short of copyright protection on the sole basis that it does not bear the stamp of the author’s personality. Indeed, this should not be considered as a separate criterion, but could still be considered as an element indicating that a work constitutes an intellectual creation of the author.
