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The Harmonisation of EU Copyright Law: The Originality Standard

Abstract

The first European Union Directive in the field of copyright was enacted nearly 25 years ago. Similarly to many other directives that followed, that Directive was “vertical” in scope, meaning that its “harmonising” effects were limited to the specific subject matter therein regulated (in this case, software). Other examples of “vertical harmonisation” are found in the field of photographs and databases as well as in many other European Union directives in the field of copyright, making this fragmented approach a typical trait of European Union Copyright law harmonisation. The reason for what could be labelled ‘piecemeal legislation’ can be linked to the limited power that the European Union had, until recently, in regulating copyright. As it can be easily verified from their preambles, all European Union Copyright Directives are mainly grounded in the smooth functioning of the internal market. It is the internal market—rather than copyright—that has driven the harmonisation of European Union copyright law to date. Nevertheless, if we look at the entire body of European Union copyright law today (the so called acquis communautaire) it certainly appears much more harmonised than what may be suggested by the above. The reason for this “unexpected” situation can most likely be found in the fundamental role that the Court of Justice of the European Union has played in interpreting and—some would argue—in creating European Union copyright law. Using the example of the originality standard, this paper offers an overview of the past and current state of European Union copyright, of the case law that has allowed the Court of Justice of the European Union to develop and affirm its own concepts and indicates what could and should be expected for the future of European Union copyright law.

Keywords

  • National Court
  • Berne Convention
  • Full Harmonisation
  • Originality Standard
  • Intellectual Creation

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

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Notes

  1. 1.

    The word “original” is used twice in article 2(3) with two different meanings. The article states: “Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work”.

  2. 2.

    As it is well known, the English version of the Berne Convention confusingly reports “selection AND arrangement”. However, the original official French text speaks of “selection OU arrangement”, and this is the version that in case of interpretative contrast prevails. Therefore, even if the English translations still nowadays reports “AND”, the real requirement is—and has always been—“OR”. See Ricketson and Ginsburg 2005, 8.87.

  3. 3.

    “A line therefore seems to run from article 2(5) through article 2(3) to article 2(1) as follows: “original translations, adaptations, etc.” under article 2(5) and collections of works that are “intellectual creations” under article 2(3) are to be protected as “literary and artistic works” under article 2(1), suggesting that both originality and intellectual creation are correlative and implicit requirements for literary and artistic productions that otherwise fall under article 2(1)”.

  4. 4.

    This is the classical formula historically employed by courts in common law countries and especially in the UK, although the precise wording varied over time adding or substituting elements.

  5. 5.

    France requires “oeuvre de l'esprit”, Germany personal intellectual creations, Italy works of ingenuity of creative character.

  6. 6.

    Consolidated Version of the Treaty on European Union (Maastricht Treaty) [2008] OJ C115/13 enshrines the principle of “conferral” on the basis of which the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties.

  7. 7.

    There are other provisions of the Treaty that the EU legislature identified as a legal basis to regulate copyright such as article 53 (freedom of establishment), article 167 (common cultural heritage), and article 169 (consumer protection). Nonetheless, article 114 remains the single principal source of powers used to regulate copyright.

  8. 8.

    Other interventions in the field of intellectual property can be seen in Directive 89/104/EEC on the approximation of trade mark laws (now replaced by Directive 2008/95/EC), and Directive 87/54/EEC on the legal protection of topographies. Recently, article 118 was introduced by the Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community [2007] OJ C306/1 empowering the EU to create European intellectual property rights. It must be noted, however, that article 118 has enabled the creation of “uniform” intellectual property rights as opposed to “harmonising” the laws of Member States. Accordingly, article 118 constitutes the legal basis for the creation of a unitary title, indicatively through a EU Regulation, which is directly applicable in all Member States.

  9. 9.

    This can be observed in different documents of the EC. In the Green paper on copyright and the challenge of technology: copyright issues requiring immediate action, for example, it can be read that the “Commission concluded that a directive on the legal protection of computer programs is a necessary step for the completion of the internal market” and that “the creation of a European information services market, currently divided by juridical and linguistic barriers, is of prime importance” (European Commission 1988, 5.4.1, 6.2.1).

  10. 10.

    Football Dataco v Yahoo [2012], 53 (1): “the significant labour and skill required for setting up that database cannot as such justify such a protection if they do not express any originality in the selection or arrangement of the data which that database contains”.

  11. 11.

    Articles 2(5) and 2(8) of the Berne Convention respectively deal with collections of literary or artistic works which constitutes ‘intellectual creations’ and with news of the day having the character or mere items of press information.

  12. 12.

    However this interpretation would contrast with the plain meaning of the Design Regulation, especially article 96(2). The latter seems to apply to both Community Registered and Unregistered Designs and therefore Member States should be free to determine the level of originality for Community Unregistered Designs. Since the protection of UCD is automatic upon creation this situation appears in logical contradiction with the statement of the ECJ at paragraph 34 of Flos v. Semeraro [2011].

  13. 13.

    As it is known: C-158/86 (Warner) led to Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property; C-341/87 (EMI Electorla) led to Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights; C-62/79 (Coditel) led to Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission.

  14. 14.

    Although the element of a “personal stamp of the author” was originally introduced by the EU legislature.

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Margoni, T. (2016). The Harmonisation of EU Copyright Law: The Originality Standard. In: Perry, M. (eds) Global Governance of Intellectual Property in the 21st Century. Springer, Cham. https://doi.org/10.1007/978-3-319-31177-7_6

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