Why originality in copyright is not and should not be a meaningless requirement

Why originality in copyright is not and should not be a meaningless requirement Is the originality requirement in copyright a non-requirement? In other words: is there any meaningful threshold to copyright protection? While it is true that it is not a particularly difficult condition to satisfy and the general perception seems to be that copyright is everywhere, originality is still a requirement. Above all, it is not a mundane one—both in the EU and the US—and there are a few instances in which the threshold would be unlikely to be passed. If we start from the EU, since the landmark decision of the Court of Justice of the European Union (CJEU) in Infopaq, C-5/08 – as a matter of fact – there has been a harmonized EU standard of originality that is generally applicable: that of ‘author’s own intellectual creation’. While formally EU legislature has only harmonized the standard for computer programs, databases and photographs, in Infopaq the CJEU held that the understanding of originality found under, respectively, the Software (2009/24), Database (96/9) and Term (2006/116) directives is also the standard under the InfoSoc Directive (2001/29). The CJEU further elaborated upon the notion of ‘author’s own intellectual creation’ in its subsequent decisions, notably (though not only) those in: BSA, C-393/09; FAPL, C-403/08 and C-429/08; and Painer, C-145/10. We now know that the EU standard requires the making of ‘free and creative choices’ and that the work carries the ‘personal touch’ of its author. In his Opinion in Football Dataco, C-604/10 Advocate General (AG) Mengozzi also clarified (in case there were any doubts), that the EU standard requires a ‘creative’ aspect, and it is not sufficient that the creation of a work (a database in that specific case) has required labour and skill. Is this standard easy to satisfy? Not necessarily. Apart from national case law, a recent example at the CJEU level is the Opinion of AG Campos in Renchoff. C-161/17. Although under German law the photograph at issue would be protected, it may be questioned whether the same would be true applying the EU originality standard. The AG, in fact, did not find it straightforward to say that a photograph like the one at stake in the background national proceedings would be eligible for copyright protection. Another example – which I always make when discussing originality with students – concerns digitized images of public domain artworks. This has become common practice for several cultural heritage institutions. What is questionable is suggesting—as many do—that such institutions hold a valid copyright in the digitized images of public domain works in their collections. If we move to the US, the landmark decision on the concept of originality arguably remains the US Supreme Court judgment in Feist, 499 US 340 (1991), which rejected the ‘sweat of the brow’ approach. The court held that “[a]s a constitutional matter, copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity.” Although some have given a reductionist reading of this judgment, post-Feist case law shows that the originality requirement is an actual threshold to protection. As the US Copyright Office noted in a recent decision that denied registration to the ‘American Airlines Flight Symbol’, ”While the bar for creativity is low, it does exist”. In Satava, 323 F.3d 805 (9th Cir 2003) the US Court of Appeals for the 9th Circuit held that: “It is true, of course, that a combination of unprotectable elements may qualify for copyright protection. But it is not true that any combination of unprotectable elements automatically qualifies for copyright protection. Our case law suggests, and we hold today, that a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” In conclusion, while it might appear that, compared to other IP rights, copyright protection is ‘easy’ to obtain, a thorough assessment of the originality requirement might help dispel this idea (or, rather, ′myth′). If we wish originality to be regarded as an actual ‘requirement’ and not just something we pay lip service to, its assessment should be conducted rigorously. This is necessary to determine not only copyright subsistence, but also to conduct the prima facie assessment of its infringement. Like the ancient Roman god Janus, originality has in fact two faces: copyright subsistence and its infringement. A meaningless understanding of originality is not helpful and discredits the role and function of copyright. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Intellectual Property Law & Practice Oxford University Press

Why originality in copyright is not and should not be a meaningless requirement

Loading next page...
 
/lp/ou_press/why-originality-in-copyright-is-not-and-should-not-be-a-meaningless-rn5PlJHFNM
Publisher
Oxford University Press
Copyright
© The Author(s) 2018. Published by Oxford University Press. All rights reserved.
ISSN
1747-1532
eISSN
1747-1540
D.O.I.
10.1093/jiplp/jpy084
Publisher site
See Article on Publisher Site

Abstract

Is the originality requirement in copyright a non-requirement? In other words: is there any meaningful threshold to copyright protection? While it is true that it is not a particularly difficult condition to satisfy and the general perception seems to be that copyright is everywhere, originality is still a requirement. Above all, it is not a mundane one—both in the EU and the US—and there are a few instances in which the threshold would be unlikely to be passed. If we start from the EU, since the landmark decision of the Court of Justice of the European Union (CJEU) in Infopaq, C-5/08 – as a matter of fact – there has been a harmonized EU standard of originality that is generally applicable: that of ‘author’s own intellectual creation’. While formally EU legislature has only harmonized the standard for computer programs, databases and photographs, in Infopaq the CJEU held that the understanding of originality found under, respectively, the Software (2009/24), Database (96/9) and Term (2006/116) directives is also the standard under the InfoSoc Directive (2001/29). The CJEU further elaborated upon the notion of ‘author’s own intellectual creation’ in its subsequent decisions, notably (though not only) those in: BSA, C-393/09; FAPL, C-403/08 and C-429/08; and Painer, C-145/10. We now know that the EU standard requires the making of ‘free and creative choices’ and that the work carries the ‘personal touch’ of its author. In his Opinion in Football Dataco, C-604/10 Advocate General (AG) Mengozzi also clarified (in case there were any doubts), that the EU standard requires a ‘creative’ aspect, and it is not sufficient that the creation of a work (a database in that specific case) has required labour and skill. Is this standard easy to satisfy? Not necessarily. Apart from national case law, a recent example at the CJEU level is the Opinion of AG Campos in Renchoff. C-161/17. Although under German law the photograph at issue would be protected, it may be questioned whether the same would be true applying the EU originality standard. The AG, in fact, did not find it straightforward to say that a photograph like the one at stake in the background national proceedings would be eligible for copyright protection. Another example – which I always make when discussing originality with students – concerns digitized images of public domain artworks. This has become common practice for several cultural heritage institutions. What is questionable is suggesting—as many do—that such institutions hold a valid copyright in the digitized images of public domain works in their collections. If we move to the US, the landmark decision on the concept of originality arguably remains the US Supreme Court judgment in Feist, 499 US 340 (1991), which rejected the ‘sweat of the brow’ approach. The court held that “[a]s a constitutional matter, copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity.” Although some have given a reductionist reading of this judgment, post-Feist case law shows that the originality requirement is an actual threshold to protection. As the US Copyright Office noted in a recent decision that denied registration to the ‘American Airlines Flight Symbol’, ”While the bar for creativity is low, it does exist”. In Satava, 323 F.3d 805 (9th Cir 2003) the US Court of Appeals for the 9th Circuit held that: “It is true, of course, that a combination of unprotectable elements may qualify for copyright protection. But it is not true that any combination of unprotectable elements automatically qualifies for copyright protection. Our case law suggests, and we hold today, that a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.” In conclusion, while it might appear that, compared to other IP rights, copyright protection is ‘easy’ to obtain, a thorough assessment of the originality requirement might help dispel this idea (or, rather, ′myth′). If we wish originality to be regarded as an actual ‘requirement’ and not just something we pay lip service to, its assessment should be conducted rigorously. This is necessary to determine not only copyright subsistence, but also to conduct the prima facie assessment of its infringement. Like the ancient Roman god Janus, originality has in fact two faces: copyright subsistence and its infringement. A meaningless understanding of originality is not helpful and discredits the role and function of copyright. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

Journal of Intellectual Property Law & PracticeOxford University Press

Published: Jun 6, 2018

There are no references for this article.

You’re reading a free preview. Subscribe to read the entire article.


DeepDyve is your
personal research library

It’s your single place to instantly
discover and read the research
that matters to you.

Enjoy affordable access to
over 18 million articles from more than
15,000 peer-reviewed journals.

All for just $49/month

Explore the DeepDyve Library

Search

Query the DeepDyve database, plus search all of PubMed and Google Scholar seamlessly

Organize

Save any article or search result from DeepDyve, PubMed, and Google Scholar... all in one place.

Access

Get unlimited, online access to over 18 million full-text articles from more than 15,000 scientific journals.

Your journals are on DeepDyve

Read from thousands of the leading scholarly journals from SpringerNature, Elsevier, Wiley-Blackwell, Oxford University Press and more.

All the latest content is available, no embargo periods.

See the journals in your area

DeepDyve

Freelancer

DeepDyve

Pro

Price

FREE

$49/month
$360/year

Save searches from
Google Scholar,
PubMed

Create lists to
organize your research

Export lists, citations

Read DeepDyve articles

Abstract access only

Unlimited access to over
18 million full-text articles

Print

20 pages / month

PDF Discount

20% off