Copyright protection of works of applied art: Where the Law stands after Cofemel and Brompton
30 Mar 2026
European Court of Justice, 4 December 2025
In the Mio/Konektra judgement issued on 4 December 2025 (joined cases C-795/23 and C-580/23), the European Union’s Court of Justice (following a request for a preliminary ruling) ruled on matters of great interest concerning the copyright protection of works of industrial art, building upon the case-law that begun with judgements Cofemel of 2019 (case C-683/17) and Brompton of 2020 (cause C-833/18).
Mio/Konektra is focused, in particular, on the relationship between copyright protection and design protection, on how to assess whether a work of industrial art is original and can therefore receive copyright protection, and on the criteria to be used to determine whether copyright infringement takes place.
In one of the most interesting parts of the judgement, the Court held that the originality of a work of applied art “must be assessed according to the same requirements as those used to assess the originality of other types of subject matter” (Mio/Konektra, § 57). Such conclusion is particularly relevant from the standpoint of Italian Law, because it likely means that the provision of Italian Law according to which a work of industrial art is subject to copyright only if it has “artistic value” art. 2, n. 10, Italian Copyright Statute) is contrary to European law.
Additionally, while considering the criteria that should be taken into account to determine whether a work is original, the Court of justice held that no relevance can be given to circumstances taking place following the date in which the work was created, such as “the display of subject matter in art exhibitions or museums and its recognition in professional circles” (Mio/Konektra, § 81). In this way, the Court repudiated the so called “historicization” principle which, however, is extensively applied by Italian courts to assess whether a work of industrial art possesses “artistic value” (see, for instance, Corte di Cassazione, judgement of 28th November 2023 n. 33100). Therefore, the compliance of art. 2, n. 10) of the Italian Copyright Statute with European law becomes even more uncertain.
However, it is not possible to foresee whether the Mio/Konektra judgement will be easily accepted by Italian courts, which already after the Cofemel case have been reluctant to abandon the requirement of “artistic value”.
Carmine Di Sanza
