Originality after Mio/konektra : arguing copyright protection under the ‘author’s own intellectual creation’ standard

Abstract The judgment in the joined cases Mio/konektra marks the latest and most anticipated chapter in the efforts of the Court of Justice of the European Union to articulate a harmonized concept of originality within the European Union, once again placing works of applied art at the centre of the debate. While the Court confirms core principles established since Infopaq and Cofemel, it also addresses long-standing practical questions surrounding the assessment of originality. This article analyzes what Mio/konektra contributes to the evaluation of originality under Union copyright law, focusing on the structure of the ‘author’s own intellectual creation’ test, the treatment of constraints, and the evidentiary basis on which originality must be established in concrete cases. On that basis, it distils an emerging structured, practice-oriented framework for arguing originality before national courts in line with the Court’s guidance. The judgment also leaves significant uncertainties unresolved. By reading Mio/konektra in light of earlier and subsequent case law, including the newly decided Deity Shoes, this article further addresses some of the identified gaps. These unresolved issues, it is argued, are likely to prompt further referrals and are expected to remain central to future disputes concerning works of applied art.