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Copyright - European originality - Coggle Diagram

- - - - [W]‌ords … considered in isolation, are not as such an intellectual creation of the author who employs them. It is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation.75
    - - As regards the setting up of a database, that criterion of originality is satisfied when, through the selection or arrangement of the data which it contains, its author expresses his creative ability in an original manner by making free and creative choices … and thus stamps his ‘personal touch’.78
- - - - The Court indicated that there was no originality where ‘the expression of [the] components is dictated by their technical function’, explaining that ‘the criterion of originality is not met since the different methods of implementing an idea are so limited that the idea and the expression become indissociable’.
    - - ‘[F]‌ootball matches, which are subject to rules of the game, leaving no room for creative freedom for the purposes of copyright.’ While no doubt, to anyone who plays or watches football, the claim that there is no ‘creative freedom’ because of the constraints provided by the ‘rules of the game’ may seem misguided (so that the absence of copyright in football matches may need to be explained in some other way), the Court is making the important point that where creative choice is highly constrained by rules or functional considerations, the resulting ‘work’ is unlikely to be original.
    - - Facts
        
        The UK company ‘Brompton’ markets folding bicycles featuring a distinctive shape. This used to be protected by a patent (now expired)
        
        Folding mechanism used to be protected by a patent.
        
        In Belgium, the Defendant sold a bike almost identical to Brompton’s and argued that the shape of the bike was functional
        
        The Belgian Court asked the ECJ to clarify wheter the Information Society Directive (2001/29) excludes functional shapes.
      - Decision [25]-[34]
        
        ... a subject matter satisfying the condition of originality may be eligible for copyright protection, even if its realisation has been dictated by technical considerations, provided that its being so dictated has not prevented the author from reflecting his personality in that subject matter, as an expression of free and creative choices.
        
        In that regard, it should be noted that the criterion of originality cannot be met by the components of a subject matter which are differentiated only by their technical function… Where the expression of those components is dictated by their technical function, the different methods of implementing an idea are so limited that the idea and the expression become indissociable.
        
        In the present case, it is true that the shape of the Brompton bicycle appears necessary to obtain a certain technical result, namely that the bicycle may be folded into three positions, one of which allows it to be kept balanced on the ground. However … in order to establish whether the product concerned falls within the scope of copyright protection, it is for the referring court to determine whether, through that choice of the shape of the product, its author has expressed his creative ability in an original manner by making free and creative choices and has designed the product in such a way that it reflects his personality.
- - - - So too the Court held in Infopaq that words ‘are not as such an intellectual creation of the author who employs them’, since ‘[i]‌t is only through the choice, sequence and combination of … words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation’ ([45]).
        
        Thus, and like tastes and sporting events, individual words are not protectable by copyright.
        
        By contrast are short literary phrases, and by implication selections and combinations of other expressive elements such as sounds and pixels of colour, which have been recognized as capable of expressing an author’s own intellectual creation so as to be authorial works protectable by copyright in contrast to the individual elements comprising them.
- - - - That case involved a preliminary referral from the Handelsgericht Wien (Commercial Court of Vienna) in domestic proceedings involving the photographic portrait of Natascha Kampusch
      - One of the issues referred to the Court was whether such a portrait was too simple to support copyright.
        
        According to the Court it was not, since the creator of a photographic portrait ‘can make free and creative choices in several ways and at various points in its production’ so as to ‘stamp the work created with his “personal touch”’ ([92]).
        
        Given this, and consistent with the definition of authorial works outlined earlier, photographic portraits were held to be capable of protection by copyright. In addition, the Court of Justice confirmed in Painer that if a photograph is an authorial work protected by copyright, the simplicity or realism of its subject matter will not in any way limit the scope or depth of its resulting copyright protection.
        
        The reason was its view of copyright as protecting all authorial works equally, consistent with the general EU legal principle of equal treatment. According to that principle, which is enshrined also in Article 20 CFR, comparable situations must not be treated differently unless the difference is objectively justified. While not referred to expressly by the Court in Painer, this principle explains the Court’s rejection of the argument presented to it in that case that the Information Society Directive, in light of the constitutional protection afforded to IP by Article 1 of Protocol 1 ECHR and Article 17(2) CFR, should be interpreted to mean that portrait photographs in particular ‘are afforded “weaker” copyright protection or no copyright protection at all against adaptation because, in view of their “realistic image”, the degree of formative freedom is too minor’ ([43]).
        
        Since Painer it has been invoked expressly to similar effect in other cases. An example is Case C–463/12 Copydan Båndkopi v Nokia Danmark A/S EU:C:2015:144, where it was held to support an interpretation of the Information Society Directive as requiring that different technological components be treated comparably for the purpose of domestic private copying levies.
- - - - [A]‌ creative choice is one made by the author that is not dictated by the function of the work, the method or technique used, or by applicable standards or relevant ‘good practice’. Conversely, purely arbitrary or insignificant selection is insufficient. A conscious, human choice must have been made, even though it may be irrational.82