The Boundaries of EU Copyright Law: Cheese, Jeans and a Military Report in the Court of Justice

Copyright is a centrepiece in the ongoing construction of the digital single market. Evidently, copyright only applies to works. Thus, the definition of its scope lies in knowing what a work is. Although that was not envisioned nor intended by the lawmaker, the Court of Justice has adopted a European notion of work in its controversial decision C-5/08, Infopaq, conflating it with the one of originality. Such an approach has been confirmed and expanded by subsequent case law. The Court has already fleshed out the main criterion for a creation to enjoy copyright – it must be original in the sense of being the author’s own creation – and seems to reject any additional criteria. However, the boundaries of the European notion of work are still unknown. Some recent preliminary ruling requests will allow some clarification. One asks about the possibility of copyright protection for the taste of a specific cheese (C-310/17, Levola Hengelo). Another one deals with the protection of a fashion design for jeans (C-683/17, Cofemel) and yet another concerns a military report (C-469/17, Funke Medien). After describing the evolution of the law on the EU notion of copyright, this article frames and critically analyses the questions surrounding these cases, proposes answers thereto and makes a prediction of the outcome, i.e. the Court’s decision, in each of them.


Introduction
What is art and does it matter for copyright? What do we know so far about the European autonomous concept of (copyright) work? Will three cases involving cheese, jeans and a military report further our understanding? Are there limits to it? These are the questions I wish to explore in this article.
Copyright is one of the most important aspects of the ongoing process of building a digital single market. 1 Copyright is a bundle of rights giving the holder (not necessarily the author) of a work the power to control its use and exploitation. Understanding if a certain creation qualifies as a work is the starting point of any copyright litigation. In fact, the concept of copyright work is at the heart of the whole discipline. That determination involves two steps: first, determining if a certain creation is copyright subject matter (in the words of the Berne Convention, a "production in the literary, scientific and artistic domain"), and, second, ascertaining if the requirements for protection, namely originality, are met.
Traditionally the notion of (a copyright protected) work was understood very differently in copyright (common law) and droit d'auteur systems. 2 Whereas the former required fixation, had a closed list of categories of creations that could qualify as works and presented a lower threshold in terms of originality, the latter did not require fixation, used an open list of creations but required a higher degree of originality in order for a creation to qualify for copyright protection. 3 Although significant, these differences only played a role at the margins. It was beyond doubt that books, movies, sculptures and paintings in general qualified as works under both systems. 4 It was only when dealing with objects of very low creative content such as catalogues, timetables or lists of sports results that outcomes diverged. Legal systems like the UK or Ireland would attribute copyright 1 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions "A Digital Single Market Strategy For Europe" (COM/2015/0192 final) 6 May 2015. https://eur-lex.europa.eu/ legal-content/EN/TXT/?qid=1447773803386&uri=CELEX:52015DC0192. 2 For an in-depth analysis of the differences see Alain Strowel, Droit d'Auteur et Copyright, Divergences et Convergences: Étude de Droit Comparé (Bruxelles: E. Bruylant, 1994). 3 See the comparative overview in Daniel Gervais, "Feist goes global: A comparative analysis of the notion of originality in copyright law", Journal of the Copyright Society of the U.S. A. 49 (2002): 949-981. See also Ramón Casas Vallés, "The requirement of originality", in Research Handbook on the Future of EU Copyright, ed. Derclaye, Estelle (Cheltenham: Edward Elgar, 2009), 102-132. 4 Lionel Bently, Brad Sherman, Dev Gangjee, and Phillip Johnson, Intellectual Property Law (Oxford: Oxford University Press, 2018), 102. to this sort of creations, contrary to what German or French courts would decide. 5 The intervention of the EU in the field of copyright has caused major changes. Due to the national sensitivities, the harmonisation of the notion of work has been not so much a work of the lawmaker. The real actor, revolutionary, and some would say usurper, has been the Court of Justice. 6 Beginning in 2009 with decision C-5/08, Infopaq, and over the course of almost a decade, the Court of Justice has elected the main criterion for a creation to enjoy copyright -it must be original in the sense of being the author's own creation -, further explained it -referring to a content of creativity resulting from free voluntary choices -and seems to reject any additional criteria. However, the boundaries of the European notion of work are still unknown, and doubts linger concerning both subject matter and other requirements for protection. 7 It is expected that some recent preliminary ruling requests will allow further clarification. One, already decided, deals with the possibility of copyright protection for the taste of a cheese (C-310/17, Levola Hengelo, EU:C:2018:899). Another one, still pending, asks about the protection of a fashion design for jeans Cofemel) and yet another, pending as well, concerns a military report Funke Medien).
After describing the evolution of the law on the EU notion of copyright, this article frames and critically analyses the questions surrounding these cases, proposes answers thereto and, finally, for those that are still pending, makes a prediction of the respective outcome.

The legislative beginnings
When the EU began to legislate in the field of copyright, by means of a Directive on computer programs (Council Directive 91/250/EEC of 14 May 1991, now codified in Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009, known as the "Software Directive"), the need was felt to find a compromise between the very demanding German case law and the more lenient one in the UK.
Bearing this in mind, the solution was to state that: "A computer program shall be protected if it is original in the sense that it is the author's own intellectual creation. No other criteria shall be applied to determine its eligibility for protection" (Article 1(3) of the Software Directive). This originality criterion was to be seen as a middle ground between the two approaches. 8 The second instance where this approach was followed was photographs. There are significant differences in the legal treatment of photography in the EU. 9 Some Member States, like Spain and Germany, have a neighbouring right for simple photos (which do not qualify for copyright protection), while others do not. When it came to harmonising the duration of copyright in the EU, it was felt that there should be a common criterion to determine the copyright eligibility of photographs. Thus when enacting Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights (now replaced by Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006, known as the "Duration Directive"), once again the lawmaker chose originality "in the sense that it is the author's own intellectual creation" (Article 6 of the Duration Directive).
A similar discussion arose when Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases was being drafted. Factual works, such as compilations, lists, and catalogues were easily protected by copyright under English law. Yet, in continental Europe these were subject to unfair competition laws and/ or neighbouring rights and seen as lacking the necessary degree of originality demanded by copyright law. The solution was to find a similar compromise: originality "in the sense that it is the author's own intellectual creation" would be the single criterion to ascertain whether a database was eligible for copyright protection. 10 It was therefore understood that, except for these three categories of works -software, databases, and photographs -the originality standard was not harmonised. 11 However, in July 2009, the Court of Justice changed that perception. 12

The Infopaq revolution
In the Infopaq case the Court of Justice was asked to rule on whether clipping (i.e. the use of small snippets of text) of news articles was a reproduction in the sense of Article 2 of the Infosoc Directive (Directive 2001/29/ EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society).
The Court associated the notion of reproduction, which had been harmonised horizontally (i.e. for all copyright works) by the Infosoc Directive, to the notion of originality, by saying "copyright within the meaning of Article 2(a) of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author's own intellectual creation". 13 Discussing the creation at hand (newspaper articles), it elaborated further: "Regarding the elements of such works covered by the protection, it should be observed that they consist of words which, considered in isolation, are not as such an intellectual creation of the author who employs them. It is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation". 14 Thus, the Court concluded: "In the light of those considerations, the reproduction of an extract of a protected work which, like those at issue in the main proceedings, comprises 11 consecutive words thereof, is such as to constitute reproduction in part within the meaning of Article 2 of Directive 2001/29, if that extract contains an element of the work which, as such, expresses the author's own intellectual creation; it is for the national court to make this determination". 15 With this decision the Court of Justice, through the coupling of reproduction and originality, used a horizontally harmonised concept (reproduction) to arguably harmonise another (work). 16 In the Court's view, since knowing if a partial reproduction occurs hinges on whether the object of reproduction is capable in itself of being protected by copyright, the harmonisation of the right of reproduction for the whole of copyright meant it must also adjudicate on the criteria for the protection of any creation by copyright. In that sense the notion of work becomes harmonised to the extent that the reproduction right already is, since from this perspective they are inseparable.
Although being a major change, the real practical impact of this view could be doubted. In the words of Estelle Derclaye, "This is quite revolutionary and can be shocking (if not choking) for most British practitioners and perhaps also most British academics. But does it change much in practice? The vast majority of musical and dramatic works will be creative, so for these, Infopaq does not change much". 17 Nonetheless, the Court chose a criterion of creativity not as demanding as the German nor too lax as the British to determine whether a creation is eligible for copyright protection. 18 This should mean changes for national laws, even if only marginally.
The confirmation of this approach -deemed of "creeping harmonization" 19 -did not take long.  18 Derclaye, "Infopaq International", 249: "artistic works now clearly need to be creative in order to be protected". 19 Gernot Schulze, "Schleichende Harmonisierung des urheberrechtlichen Werkbegriffs? -Anmerkung zu EuGH "Infopaq/DDF", Gewerblicher Rechtsschutz und Urheberrecht (2009): 1019-1022. Schulze was very critical of the approach and at the time rejected the reading that attributed wider effects to the decision.

The confirmation
In 2011, in the Bezpečnostní softwarová associasse (BSA) decision, 20 the Court of Justice had to consider if Graphic User Interfaces (GUI) could be protected by copyright. Having rejected that these could be qualified as software, 21 the Court nonetheless accepted that GUI could be protected under "ordinary"/general copyright, provided these were original. 22 And the definition of originality for that purpose as "its author's own intellectual creation" was done citing Infopaq. 23 Proceeding with the analysis the CJEU spelled out the "merger doctrine" according to which "where the expression of (…) components is dictated by their technical function, the criterion of originality is not met, since the different methods of implementing an idea are so limited that the idea and the expression become indissociable". 24 Thus, "In such a situation, the components of a graphic user interface do not permit the author to express his creativity in an original manner and achieve a result which is an intellectual creation of that author". 25 Trailing on this approach, decisions such as Karen Murphy (discussing inter alia whether sports events, namely football matches, could be protected by copyright and deciding in the negative), 26 Football Dataco (dealing with the copyright eligibility of football league fixtures and rejecting the relevance of the intellectual effort and skill of creating that data), 27 SAS Institute (analysing the possibility of copyright protection of the functionality of a computer program, its programming language and the format of data files), 28 and Nintendo (debating the copyright eligibility of videogames) 29 have maintained the criterion and further developed its contours. 30

How far did it go?
Amidst these developments, the Court of Justice had to deal with a preliminary ruling request concerning the compatibility of certain provisions of Italian copyright law and EU law.
Up until 2001, Italian law was very restrictive on the eligibility of works of applied arts (design pieces such as furniture, lighting, clothes, tools, utensils or jewellery) for copyright protection. 31 However, due to the transposition of the Design Directive (Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs), Italian law was altered with the removal of the main impediment to copyright protection of applied arts. 32 In the course of litigation between two lamp producers, the compatibility of these changes and the transitory provision established therewith with the Design Directive was questioned. This led to the Flos ruling. 33 Even though this was not essential to answer the questions posed, the Court stated that "it is conceivable that copyright protection for works which may be unregistered designs could arise under other directives concerning copyright, in particular Directive 2001/29, if the conditions for that directive's application are met, a matter which falls to be determined by the national court". The meaning of this obiter dicta was (and still is) far from clear. Some commentators claimed it meant that the harmonisation of the notion of work also occurred in the field of designs. 35 However, the Bundesgerichtshof was not at all convinced. In the influential Geburtstagszug decision, the designer of a toy train with candles and numbers invoked a provision of German copyright law to claim additional remuneration due to the success of her design. 36 The granting of that request hinged, first and foremost, on knowing whether the design in question was eligible for copyright protection.
In this decision the German Supreme Court changed its previous caselaw (which applied a more demanding standard for works of applied art than for copyright in general) but rejected the view that it was EU law that required such a change. 37 In fact, it adopted a criterion that seems to run counter European case-law. According to the decision of the BGH, works of applied art, besides being original, must be regarded as artistic by the interested circles in order to be protected by copyright law. 38 On the contrary, around the same time, in a similar case involving the copyright eligibility of fire stoves, the Dutch Supreme Court (Hoge Raad) held that Flos and Infopaq meant that no additional criteria could apply to consider them original. According to that decision the applicable standard (including in the field of design and the applied arts) was Infopaq's. 39 These conflicting interpretations are at the heart of the preliminary ruling request in Cofemel discussed below (9.). 35 See in detail Lionel Bently, "The return of industrial copyright?", European Intellectual Property Review 34 (2012): 654-672. Advocate-General Jääskinen, in his Opinion delivered on 29 March 2012 on Case C-5/11, Titus Döner, EU:C:2012:195, paragraph 31 seems to agree. Leistner, "Copyright", 627 highlights the intensity of this debate in German literature. 36 This is possible according to §32 and 32a of the Urheberrechtsgesetz (German Copyright Act). Whenever an author has licenced his copyright for an amount that turns out to be disproportionately low considering the economic success of the work's exploitation (s)he might be entitled to additional remuneration. 37

What do we know so far?
Perusing the so far mentioned case law it becomes apparent that the European concept of originality requires free choices capable of expressing the personality of a certain person (that being the author). In that vein, the Court stated in Painer, a case concerning i.e. the copyright eligibility of photographs: 40 "an intellectual creation is an author's own if it reflects the author's personality. (…) That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices". Likewise, it was held in Murphy that: 41 "sporting events cannot be regarded as intellectual creations classifiable as works within the meaning of the Copyright Directive. That applies in particular to football matches, which are subject to rules of the game, leaving no room for creative freedom for the purposes of copyright". 42 According to the Court, originality requires a minimum degree of freedom in order for the creator to exercise his discretion, making creative choices that reflect a personality. This was confirmed in SAS Institute: 43 "It is only through the choice, sequence and combination of those words, figures or mathematical concepts that the author may express his creativity in an original manner and achieve a result, namely the user manual for the computer program, which is an intellectual creation".
As a corollary of the idea of "originality as an exercise of freedom", the Court relies on functionality to exclude certain creations from copyright protection. This was particularly clear in BSA, where the Court fleshed out the merger doctrine: if the creation was dictated by functionality concerns, then the creation was not free and therefore it cannot be original. 44 Although by now the kernel of the European concept of originality seems to be defined, knowing how demanding it is remains a source of contention. In fact, by admitting that 11 words (in Infopaq) or a user manual (SAS Institute) might be protected by copyright, one could say that the CJEU is not too demanding in terms of originality. 45 Lucas/Lucas 46 believe that the French conception is only marginally affected and the Court has favoured a droit d'auteur approach. Andreas Rahmatian 47 writes that it is likely that the CJEU increased the UK standard, but believes that the current standard is chameleonic and not a pure concession to the droit d'auteur conception, contrary to what some have claimed. Axel Nordemann 48 submits that this case law leads to a decrease in the original German criterion. Most commentators seem to agree that this evolution means a departure from their national traditions towards a middle ground.
A different query is whether the Court provided any further guidance regarding copyright eligibility.

Anything else about the concept of work?
When addressing copyright eligibility the copyright and droit d'auteur, traditions differ not only in the threshold of originality required to grant copyright, but also concerning the demand (or lack thereof) of fixation (recording in material form) and the need of fitting the creation into one of a fixed set of categories.
According to UK law, a creation can only enjoy copyright if it is recorded in a material form (that is the fixation requirement) and, cumulatively, fits into one of eight categories: literary, dramatic, musical, or artistic works (s.1(1)(a) CDPA), sound recordings, films or broadcasts (s.1(1)(b) CDPA), and the typographical arrangement of published editions (s.1(1)(c)) This closed list system means that if a creation, albeit very creative and even innovative, does not correspond to one of such types it will be excluded from copyright protection. Courts in the UK have therefore refused to grant protection to the Stormtrooper helmet (of the Star Wars series) and an arrangement of objects, including a white Rolls Royce car inside an empty swimming pool (to be featured in a cover of an album by the British band Oasis) since these did not constitute sculptures. 49 By suggesting in BSA that Graphic User Interfaces could be protected by copyright, the CJEU called into question the compatibility of the closed list approach with EU law. 50 On the other hand, until now the CJEU had not dealt with the fixation requirement. 51 To some this has been addressed in the CJEU's most recent decision, one concerning a cheese.

The cheese
In the latest decades, the possibility of protecting smells and tastes by intellectual property has been debated and tested. Commentators often emphasise how Intellectual Property protection would mean an undue and disproportionate restriction on freedom, namely due to the functional or technical nature of perfumes and foodstuffs. 52 Nevertheless, some courts have granted copyright protection to perfumes, 53 which sparked a vigorous debate. 54 The discussion has likewise been had regarding culinary creations. 55 Recently the CJEU was asked to rule on the copyright eligibility of the taste of a cheese. A Dutch company, Levola, took the view that another company (Smilde) was infringing its copyright in the taste of its Heksenkaas cheese. In the context of this litigation the Regional Court of Appeal of Arnhem-Leeuwarden in the Netherlands asked a detailed set of questions to the CJEU in order to determine if and how the taste of a cheese could benefit from copyright protection.
Advocate-General Wathelet issued an opinion suggesting a negative answer. However, his arguments were rather weak and the analysis was poor. First he stated that a work must be "identifiable with sufficient precision and objectivity" in order to enjoy protection, making an analogy with trade mark case law. 56 This analogy is logically flawed since the cited requirement in trade mark law is explained by the existence of a registration and the need to make the sign perceptible to the public. These reasons do not apply in the field of copyright law. Following the identification argument, Wathelet stated: 57 "tastes themselves are ephemeral, volatile and unstable militates, in my view, against their precise and objective identification and, therefore, their classification as works for the purposes of copyright". This seems to be incorrect as well. Otherwise, choreographies, performances, sand, chocolate, ice or paper sculptures, all of which lack permanence, would have to be excluded from copyright protection.
The Court's decision, on 13 November 2018, was not much better in terms of justification.
It began by stating that: 58 "The directive makes no express reference to the laws of the Member States for the purpose of determining the meaning and scope of the concept of a 'work'. Accordingly, in view of the need for a uniform application of EU law and the principle of equality, that concept must normally be given an autonomous and uniform interpretation throughout the European Union". With this sentence the Court confirmed that it has the last word on defining the subject matter of copyright.
Confirming some fears of a "theoretical muddle", 59 the Court stated: 60 "two cumulative conditions must be satisfied for subject matter to be classified as a 'work' within the meaning of Directive 2001/29." And explained: 61 "First, the subject matter concerned must be original in the sense that it is the author's own intellectual creation (…) Secondly, only something which is the expression of the author's own intellectual creation may be classified as a 'work' within the meaning of Directive 2001/29".
These two conditions are intertwined and at first seem to lack autonomous meaning. It is hard to see the additional content of the second condition. If originality means the author's own intellectual creation (first condition) and a work must be an expression of the author's own intellectual creation (second condition), it would be easier to state one condition only: the work must be original. 62 However, in paragraph 39 the Court of Justice relies on the word "expression" used in the second condition and the idea-expression dichotomy to break this logical deadlock. After having recalled that "copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such", 63 the Court concluded "Accordingly, for there to be a 'work' as referred to in Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form". 64 This is a good example of non sequitur. One cannot derive the need of identification from the idea-expression dichotomy. Even though the expression must manifest itself in the outside world, the need for a creation to be identifiable was never regarded as a requirement for copyright protection. 65 However, the Court justifies it with the needs of several people, namely "authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected (…) individuals, in particular economic operators, who must be able to identify, clearly and precisely, what is the subject matter of protection which third parties, especially competitors, enjoy". 66 Taking all this into account, and since "The taste of a food product cannot (…) be pinned down with precision and objectivity. Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed", 67 the Court rejected the possibility of copyright protection for taste.
Although to a certain extent the understanding and enjoyment of literary, pictorial, cinematographic or musical works is also dependent on subjective and variable experiences, it seems true that there is a difference in degree. Music will feel different to each listener but the sound will be the same; however, smell or taste will not only feel but objectively be different for each person.
Nonetheless, none of the advanced reasons seems convincing enough to explain the exclusion of taste from the realm of copyright.
What could the proper reasons be? Some have suggested the real reason should be functionality and/or lack of artistic nature. In that vein, the French Cour de Cassation 68 excluded the copyright of perfumes stressing that producing perfumes is more of an industrial activity than an artistic one. 69 In fact, some authors, following the formulation of the Berne Convention, focus on subject matter eligibility and suggest that copyright can only be attributed to literary, artistic or scientific creations. 70 The Court itself stated: 71 "Under Article 2(1) of the Berne Convention, literary and artistic works include every production in the literary, scientific and artistic domain, whatever the mode or form of its expression may be". If this can be read as a death knell for the closed list/ categorisation approach, 72 it is no less true that one can derive from here the idea that perfumes are excluded from protection precisely because they lack artistic nature.
If that is the case, then it becomes clear that the Court of Justice is now also considering subject matter and there has not been a total exclusion of any other criteria but originality in order to determine copyright eligibility. 73 At the same time, a whole universe of other questions spring to mind: how are we to assess artistic nature? Is there some intrinsic quality that turns an object into art or is it a matter of general (and if so, how general) perception? Should we rely on the perception of experts, the general public, a specialised public? Which public then? Can there be regional variations (say an object is considered art in a Member-State but not in another)? When is the artistic nature to be assessed? Can one object "become" art throughout its existence? Or, conversely, lose its artistic nature? I submit that the Court did not want to open the door to all these inquiries and therefore chose to give a cryptic and short answer to the question. Its aim was clear -rejecting the possibility to protect taste by copyright -, its reasoning was purposely obscure. However, it might be forced to explain itself better due to a pair of jeans.

The jeans
The extent to which copyright can co-exist with designs is the subject of a long-time controversy. The existing approaches are usually divided in three. 74 One, called no cumulation, relies on a requirement of separability, according to which only the separate ornamental elements can be protected by copyright but not a piece that is simultaneously aesthetic and functional. This was the old Italian approach of scindibilitá 75 and is the current position in the US. 76 The second approach, of partial cumulation, relies on additional "filtering requirements" such as a higher threshold of originality and/or artistic quality, registration or a maximum number of reproductions to select which designs are to be protected under copyright. 77 This is found in Germany and also in recent decisions of Portuguese and Spanish courts. 78 The third orientation is full (or perfect) cumulation. Grounded on a certain understanding of the theory of the unity of the art (attributed to Eugéne Pouillet) it makes no distinction between general creations and works of applied arts. This is found in Belgium, the Netherlands, and France.
Article 17 of the Design Directive (similar to Article 96/2 of Council Regulation (EC) No. 6/2002 of 12 December 2001 on Community designs) states that "A design protected by a design right registered in or in respect of a Member State in accordance with this Directive shall also be eligible for protection under the law of copyright of that State as from the date on which the design was created or fixed in any form. The extent to which, 75 According to Article 2 number 4 of the previous law, copyright could only be granted to the works of applied art if their artistic merit could be detached from the industrial nature of the product to which it was applied. In 2001 (with Decreto Legislativo 2 febbraio 2001, n. 95 Attuazione della direttiva 98/71/CE relativa alla protezione giuridica dei disegni e dei modelli) the Italian legislator, transposing the Design Directive, amended its copyright law, adding a new number 10 to Article 2 of its Copyright Act, according to which "the works of industrial design that are creative and have artistic value" are now protected by copyright. See Philipp Fabbio, Disegni e Modelli (Padova: CEDAM, 2012), 185-194. 76 17 USC §101 (definition of "pictorial, graphic and sculptural work"). 77 Analysing some of the criteria see Yves Gaubiac, "La théorie de l'unité de l'art", Revue Internationale du Droit d 'Auteur 111 (1982) and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State".
It was believed that this provision barred the no cumulation approach but allowed Member-States to choose between a partial and a full cumulation system. 79 However, as explained above (5.), the CJEU decision in Flos raised doubts in this respect. 80 In the context of the litigation between G-Star (a Dutch company) and Cofemel (a Portuguese textile company trading under the trade mark "Tiffosi") regarding the imitation by the latter of jeans and sweaters, the question arose as to whether these fashion designs were eligible for copyright protection. Up until recently Portuguese courts had favoured a partial cumulation approach, 81 and so the first instance rejected the possibility of copyright protection on the grounds that these creations lacked artistic character. However, the second instance, citing Infopaq, reversed the decision and considered that copyright would apply. 82 According to the Appeals Court, no other criterion except for "normal" originality should determine if a pair of jeans can be protected by copyright. The losing party appealed to the Supreme Court, which issued a preliminary ruling request with the following questions: 83 "1) Does the interpretation by the Court of Justice of the European Union of Article 2(a) of Directive 2001/29/EC 1 preclude national legislation -in the present case, the provision in Article 2(1)(i) of the Código de Direitos de Autor e Direitos Conexos (CDADC) -which confers copyright protection on works of applied art, industrial designs and works of design which, in addition to the utilitarian purpose they serve, create their own visual and distinctive effect from an aesthetic point of view, their originality being the fundamental criterion which governs the grant of protection in the area of copyright? 2) Does the interpretation by the Court of Justice of the European Union of Article 2(a) of Directive 2001/29/EC preclude national legislation -in the present case, the provision in Article 2(1)(i) of the CDADC -which confers copyright protection on works of applied art, industrial designs and works of design if, in the light of a particularly rigorous assessment of their artistic character, and taking account the dominant views in cultural and institutional circles, they qualify as an 'artistic creation' or 'work of art'?".
These questions will force the Court to establish if the same criteria to define the notion of work in general also apply in the field of designs and the applied arts. In other words, how relevant was the obiter dicta in Flos and who is right, the German or the Dutch Supreme Court (see supra 5.)? Taking into account the pro-harmonisation agenda of the CJEU, 84 I believe the Court will consider that Infopaq is also applicable to designs, and that Member-States are not free to establish additional criteria of eligibility. 85 Withal, I believe the most interesting question is the second one. Unfortunately, I foresee that the Court might very well excuse itself from answering it. I submit that it is likely that the reasoning will be as follows: Infopaq also applies to designs, thus no additional criteria can be applied. Therefore, there is no need to reply to the second question. However, should that be the case, at least the meaning of Levola Hengelo will be clarified. 86 The Court might flesh out if subject matter considerations are relevant for the EU notion of work. We might get a hint of the Court's likely understanding once the decision concerning a military report is out.

The military report
In C-469/17, Funke Medien, known as the "Afghanistan Papers" case, the CJEU's intervention was requested in the course of litigation between the German Government and a press publisher. The former refused access of the latter to weekly military reports concerning German military activities in Afghanistan between 2001 and 2012 invoking security-sensitive interests of the federal armed forces. However, the news organisation got hold of those reports and published a part of them in the website of its newspaper Westdeutsche Allgemeine Zeitung. Following this publication, the German Government brought an action against Funke Medien for 84 Highlighted by Estelle Derclaye "The Court of Justice copyright case law: Quo vadis?", European Intellectual Property Review 36 (2014): 716-723. 85 Along these lines see Rosati,Originality,123. Even if that means a total disregard for the principle of conferral. 86 In that the exclusion of taste is not due to the lack of artistic nature of culinary creations. copyright infringement, alleging a violation of the reproduction and communication to public rights.
It was in this context that the Bundesgerichtshof decided to refer three questions to the CJEU for a preliminary ruling. These deal with (1) the latitude in terms of implementation in national law given by Directive 2001/29, (2) the way in which fundamental rights are to be taken into account when ascertaining the scope of the exceptions or limitations, and (3) the possibility of deriving exceptions from the fundamental rights of freedom of information or freedom of the media beyond the ones provided for in the said Directive.
None of the questions deal with copyright eligibility. Notwithstanding, Advocate-General Szpunar believes that the case should be solved from that perspective. 87 According to his opinion: 88 "It seems to me to be rather unlikely that the author or authors of those documents, whose identity is unknown but who are probably civil servants or officers of the federal armed forces, were able to make free and creative choices in order to express their creative abilities when drafting those documents. The content of purely informative documents that are inevitably drafted in simple and neutral terms is entirely determined by the information they contain, so that such information and its expression become indissociable, thus precluding all originality. A degree of effort and skill is required to draw them up, but those elements on their own cannot justify copyright protection. During the discussions in that regard at the hearing, the parties also argued that the structure of the documents at issue could itself be protected by copyright. However, that structure consists in setting out evenly spaced information concerning each foreign mission in which the federal armed forces are participating. Therefore, I do not think that the structure of those reports is more creative than their content".
It is hard to predict whether the Court will follow the Advocate-General's suggestion. If it does, I believe it will stick to originality and the idea-expression dichotomy and not delve into the particular nature of the documents and its literary or artistic nature (or lack thereof). But, as usual, the unexpected can happen.

Conclusion
As I have tried to show, it seems clear that the CJEU has adopted a horizontal harmonised notion of work. Work is now undoubtedly regarded as an autonomous concept of EU law. However, its meaning remains highly undetermined and therefore contentious. It is not only undetermined by lack of case law, which is in earnest development (even if not always with clarity), but also inherently undetermined. 89 In this last sense, it could be said that to a certain extent the notion of work is rebel to harmonisation. Should the Court choose to give relevance to subject matter considerations, national and personal differences concerning what can be deemed artistic (and even how to make that determination) will perpetuate the uncertainty. Every time a decision in this field is issued, different interpretations arise and are thoroughly debated. 90 It is only natural that national courts will (as already have) frequently diverge. While the CJEU has been expanding and defining the borders of the notion of work, it might also be discovering and mapping the boundaries of harmonisation. That is why I believe that we will keep having abundant but unclear case law in this field for several years to come. 91