Unity of art doctrine

The theory of the unity of art is the principle of French law under which copyright protects all original creations of form without distinction between pure art and art applied to industry, and regardless of their merit or purpose. Formulated by legal scholars at the end of the nineteenth century and enshrined by the Act of 11 March 1902, it is today laid down in Article L. 112-1 of the French Intellectual Property Code, which protects the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose. It underpins the full cumulation of copyright and design protection.

The origin and meaning of the principle

Before 1902, the courts were reluctant to admit copyright protection for industrial creations, reserved for the fine arts, and referred manufacturing designs to a special statute. The theory of the unity of art, championed by Pouillet, argued that art is one and that a court cannot, without arbitrariness, draw a line between a work of art and an industrial object. The legislature followed it in 1902, and the 1957 Act and then the Code took over the principle. It follows that indifference to merit prohibits the court from passing an aesthetic judgment, and that indifference to purpose prohibits excluding a work because it has a practical or commercial use.

Cumulation of protection

The primary consequence of the theory is full cumulation between copyright and design law, the same shape being eligible for both regimes as soon as it meets their respective conditions, originality on the one hand, novelty and individual character on the other. This cumulation historically set France apart from other systems which made copyright protection of utilitarian objects subject to a high artistic standard or to the separability of form and function, or which excluded cumulation. The creator of a design object thus enjoys in France protection without formality and of long duration, even without filing a design.

European harmonisation

EU law enshrined the principle of cumulation through Directive 98/71/EC and Regulation (EC) No 6/2002, while leaving the Member States to determine the conditions of copyright protection. The Court of Justice of the European Union subsequently held that the concept of a work is an autonomous concept of EU law and that the protection of design objects cannot be made subject to a requirement of aesthetic effect or to a higher level of creativity, which brought the other Member States closer to the French solution. The theory of the unity of art has thus acquired a reach beyond its national origin, even though the concrete assessment of the originality of utilitarian objects still varies from one court to another.

Key points

The theory of the unity of art requires copyright protection for any original creation of form, whatever its merit and purpose, and allows full cumulation with design protection. EU law has generalised this approach by making the protection of utilitarian objects subject to originality alone. For a product creator, this means that protection exists without filing, but it remains prudent to file a design, which is easier to enforce, and to document the creative choices.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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