Mastering Complexities In EU Copyright Law: A Discussion On The Opinion Of Advocate General Szpunar In The Mio And USM Haller Cases Delivered On 8 May 2025 (Joined Cases C-580/23 And C-795/23)

• Published date: 27 May 2025
• Law Firm: Bardehle Pagenberg
• Author: Dr. Henning Hartwig

On 8 May 2025, Advocate General Szpunar issued his long-awaited Opinion in two pending referrals to the Court of Justice of the European Union in the Mio and USM Haller/konektra cases (Joined Cases C-580/23 and C-795/23), related to questions of substantive EU copyright law with respect to works of applied art. Unfortunately, however, the Opinion does not appear to be persuasive in all respects.

1. Babylonian confusion in EU Copyright law?

When it comes to language and terminology, mankind is often tempted to speak of Babylonian confusion. Reviewing the past two decades of EU copyright law and practice, parallels with respect to the building of the Tower of Babel are astounding. In fact, while all major languages, according to the translations provided by the Court of Justice of the EU ('CJEU'), proceeded from the notion 'creative freedom', the CJEU's German version, occasionally but incorrectly, used the term 'artistic freedom' instead (as observed here).

Only recently, on 20 February 2025, the German Federal Supreme Court conceded that the correct terminology would be 'creative', insisting (Case I ZR 16/24, para 23), however, far from being persuasive, that other notions such as 'creative' ('sch'pferisch'), 'creative' ('kreativ') or 'original' ('originell') are synonymous with 'artistic'. As if confusion could not be greater, the Advocate General ('AG'), on 8 May 2025, stated (Joined Cases C-580/23 and C-795/23, para 43):

Indeed, it seems to me that a risk of confusion arises when the terms 'artistic' or 'aesthetic' are used to characterise the choices made by the author of a work or the result of his or her creation. It is true that, in certain senses, those terms may be understood as synonymous for 'creative choices'. (...) As for the term 'aesthetic', it may be understood as referring to all the...