Standard of originality

The sector specific Directives that were adopted before the InfoSoc Directive explicitly identified the standard of originality as a basic requirement for copyright protection. The main reason for that was that EU lawmakers sought to ensure that Member States granted a uniform legal protection to types of works that either did not fall, at that time, within the traditional categories of copyrighted works or were protected in accordance with diverging criteria under national laws.37 _{If this legislation had not defined at EU level the subject matter} of copyright, a different understanding of the basic requirements for protection at national level would have caused distortions of competition in the Internal Market for these works. To avoid that scenario, sector-specific Directives provided a definition of ‘computer programme’, ‘photograph’ and ‘database’, embracing the continental-European criterion of originality. Articles 1(3) of the Software Directive, 3(1) of the Database Directive and 6 of the

32 _{Regulation (EU) 1215/2012 of 12 December 2012 on jurisdiction and the recognition and} enforcement of judgments in civil and commercial matters, OJ L 351/1, 20.12.2012.

33 _{Joined cases C-509/09 and C-161/10, eDate Advertising GmbH v. X and Oliver Martinez, Judgment of} 25 October 2011, par. 48-52.

34 _{C-173/11, Football Dataco Ltd v. Sportradar GmbH, Judgment of 18 October 2012, par. 38-39.} 35 _{C-170/12, Peter Pinckney v. KDG Mediatech AG, Judgment of 3 October 2013, par. 42-43.}

36 _{C-387/12, Hi Hotel v. Uwe Spoering, Judgment of 3 April 2014, par. 35 and 38-39 (where the CJEU} held that the courts of the Member States where the damage occurs are ‘best placed, first, to ascertain whether the rights of copyright guaranteed by the Member State concerned have in fact been infringed and, secondly, to determine the nature of the damage caused’).

37 _{For instance, when it comes to the protection of photographic works, Directive 93/98/EEC (Term} Directive) provides that a photograph that fulfils the originality requirement set out under Article 6 (i.e. ‘the author’s own intellectual creation reflecting his personality’) should be protected by copyright under national law. As pointed out in the literature, as a result of this provision Member States are free to protect other types of photographs that do not meet the originality requirement through copyright-related rights with their own terms of protection; however, such protection should be based on requirements other than the (harmonised) originality requirement defined in the Directive: Minero, who recalled that countries like Italy and Spain protect non-original photographs by a related right for 20 and 25 years, respectively, after the date of creation (Minero, 2014) – cf. Article 92 of the Italian Copyright Act and Article 128 of the Spanish Copyright Act).

Term Directive clarify that the above-mentioned works are protected by copyright if they are original in the sense that they are their author’s own intellectual creation.38 _{Moreover, in} order to reflect the respective standards of originality of common law and civil law countries, the Database Directive identified two distinct types of works that should have been protected under national laws: i) ‘original’ databases, which would presumably obtain protection under droit d’auteur jurisdictions (as they were the fruit of the author’s own intellectual creation); ii) ‘non-original’ databases, which result from substantial investment in either the obtaining, verification or presentation of their contents, and would easily meet the common law copyright (i.e. ‘sweat of the brow’) standard.39

Unlike the above-mentioned Directives, the InfoSoc Directive did not adopt a single standard of originality for all the creative works it should have applied to. There is no provision in this Directive that seeks to define what the subject matter of copyright is. However, the harmonisation of the concept of originality of creative works was the result of the interpretation of the InfoSoc Directive by the CJEU through a number of judgments where the Court showed an increased determination to promote the development and completion of the harmonisation of EU copyright law (cf. Griffiths, 2014; Rosati, 2011).

The CJEU sought to strike a fair balance between the relatively low standard of originality adopted in the UK and the higher standards applied in continental-European countries such as Germany and France. In the first and most important among such cases, i.e. Infopaq

International A/S v. Danske Dagblades Forening (2009),40 _{the CJEU found that the notion of} copyright ‘work’ under the Directive should have been the same as the one adopted under sector specific provisions that define originality with regard to works such as computer programmes, databases, and photographs. The CJEU held that, for a matter of consistency with other EU law measures (cf. Recitals 4, 9 to 11 and 20) the rights harmonised under the InfoSoc Directive should have applied only in relation to a work (or parts of a work) which is original in the sense that it is its ‘author’s own intellectual creation’. Considering the purpose of harmonisation of the InfoSoc Directive, the CJEU developed the process of interpretation that started with Infopaq International A/S v. Danske Dagblades Forening (2009) in later judgments that clarified the notion of “author’s own intellectual creation”. According to the Court, for originality (and copyright protection) to subsist in the case of a graphic user interface, the features of such interface should not be differentiated only by their technical

38 _{See, in particular, Article 1(3) of the Software Directive: ‘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’; similarly, Article 3(1) of the Database Directive provides that ‘databases which, by reason of the selection or arrangement of their contents, constitute the author’s

own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection.’

39 _{See, respectively, Article 1(2) of the 1996 Database Directive: ‘For the purpose of this Directive,} “database” shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means’; and Article 7, par. 1 and 4, of the same Directive, according to which Member States shall provide a sui generis right for the maker of a database to prevent extraction and/or reutilisation of the whole or of a substantial part of a database which shows that there has been qualitative and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents, irrespectively of the eligibility of that database for copyright protection.

function, in a way that the author cannot express his creativity in an original manner.41 _{In the} case of a portrait photograph, the Court held that originality subsists insofar as the photographer makes creative choices and gives the work her personal touch.42 _{As for sport} events, it was held that this type of ‘work’ does not satisfy the Court’s standard of originality insofar as the event is “subject to rules of the game, leaving no room for creative freedom for the purposes of copyright”.43