I keep wondering how many 'subject matter cases' have pop up in the last few months, despite the fact that European law does not generally address the issue of copyright subject matter. The only exceptions are
"A computer program shall be protected if it is an 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. [Art. 1]"
"For the purpose of this Directive, the term "computer program" shall include programs in any form, including those which are incorporated into hardware. This term also includes preparatory design work leading to the development of a computer program provided that the nature of the preparatory work is such that a computer program can result from it at a later stage. In respect of the criteria to be applied in determining whether or not a computer program is an original work, no tests as to the qualitative or aesthetic merits of the program should be applied. [Recitals 7-8]"
"Photographs which are original in the sense that they are the author's own intellectual creation shall be protected in accordance with Art. 1 [of 2006/116/EC]. No other criteria shall be applied to determine their eligibility for protection. [Art. 6]"
"A photographic work within the meaning of the Berne Convention is to be considered original if it is the author's own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account. [Recital 16]"
- databases [Art. 3 of Directive 96/9/EC]
"In accordance with this Directive, 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. [Art. 3(1)] "
Now lets have a look at the list of known Court of Justice cases addressing copyright subject matter issue whether decided or pending.
- Infopaq I. C-5/08 - general
- BSA C-393/09 - general
- Football Association Premier League C-403/08 - general
- Painer C-145/10 - photographs (pending - AG opinion so far)
- Football Dataco C-604/10 - databases (pending)
Three cases concern general copyright protection requirements despite the fact that this is not subject to European law. Good commentary is provided for instance by prof. Griffiths in his article "Infopaq, BSA and the 'Europeanisation' of United Kingdom Copyright Law". Let's have a look what these cases say.
It all started with Infopaq I. C-5/08
34 It is, moreover, apparent from the general scheme of the Berne Convention, in particular Article 2(5) and (8), that the protection of certain subject-matters as artistic or literary works presupposes that they are intellectual creations.35 Similarly, under Articles 1(3) of Directive 91/250, 3(1) of Directive 96/9 and 6 of Directive 2006/116, works such as computer programs, databases or photographs are protected by copyright only if they are original in the sense that they are their author’s own intellectual creation.36 In establishing a harmonised legal framework for copyright, Directive 2001/29 is based on the same principle, as evidenced by recitals 4, 9 to 11 and 20 in the preamble thereto.37 In those circumstances, copyright within the meaning of Article 2(a) of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation.38 As regards the parts of a work, it should be borne in mind that there is nothing in Directive 2001/29 or any other relevant directive indicating that those parts are to be treated any differently from the work as a whole. It follows that they are protected by copyright since, as such, they share the originality of the whole work.39 In the light of the considerations referred to in paragraph 37 of this judgment, the various parts of a work thus enjoy protection under Article 2(a) of Directive 2001/29, provided that they contain elements which are the expression of the intellectual creation of the author of the work.40 With respect to the scope of such protection of a work, it follows from recitals 9 to 11 in the preamble to Directive 2001/29 that its main objective is to introduce a high level of protection, in particular for authors to enable them to receive an appropriate reward for the use of their works, including at the time of reproduction of those works, in order to be able to pursue their creative and artistic work.
Then continued with BSA C-393/09
44 In that regard, it is appropriate to ascertain whether the graphic user interface of a computer program can be protected by the ordinary law of copyright by virtue of Directive 2001/29.And now Football Association Premier League C-403/08 says
45 The Court has held that copyright within the meaning of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation (see, to that effect, with regard to Article 2(a) of Directive 2001/29, Infopaq International, paragraphs 33 to 37).
46 Consequently, the graphic user interface can, as a work, be protected by copyright if it is its author’s own intellectual creation.
47 It is for the national court to ascertain whether that is the case in the dispute before it.
48 When making that assessment, the national court must take account, inter alia, of the specific arrangement or configuration of all the components which form part of the graphic user interface in order to determine which meet the criterion of originality. In that regard, that criterion cannot be met by components of the graphic user interface which are differentiated only by their technical function.
49 As the Advocate General states in Points 75 and 76 of his Opinion, where the expression of those components is dictated by their technical function, 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.
50 In such a situation, the components of a graphic user interface do not permit the author to express his creativity in an original manner and achieve a result which is an intellectual creation of that author.
51 In the light of the foregoing considerations, the answer to the first question referred is that a graphic user interface is not a form of expression of that program within the meaning of Article 1(2) of Directive 91/250 and thus is not protected by copyright as a computer program under that directive. Nevertheless, such an interface can be protected by copyright as a work by Directive 2001/29 if that interface is its author’s own intellectual creation.
96 FAPL cannot claim copyright in the Premier League matches themselves, as they cannot be classified as works.
97 To be so classified, the subject-matter concerned would have to be original in the sense that it is its author’s own intellectual creation (see, to this effect, Case C‑5/08 Infopaq International  ECR I‑6569, paragraph 37).
98 However, sporting events cannot be regarded as intellectual creations classifiable as works within the meaning of the Copyright Directive. That applies in particular to football matches, which are subject to rules of the game, leaving no room for creative freedom for the purposes of copyright.
99 Accordingly, those events cannot be protected under copyright. It is, moreover, undisputed that European Union law does not protect them on any other basis in the field of intellectual property.
100 None the less, sporting events, as such, have a unique and, to that extent, original character which can transform them into subject-matter that is worthy of protection comparable to the protection of works, and that protection can be granted, where appropriate, by the various domestic legal orders.
Does it really mean that under new European doctrine 'author’s own intellectual creation' is the only thing that matters in order to pass the copyright treshold? These three cases seems to say yes. Just to illustrate, Slovak Copyright Law generally requires (Section 7):
a) authors own intellectual creation;
b) creativity (not explicitly);
c) work of art or science;
d) work to be expressed in a objectively perceivable form;
e) not excluded from copyright protection;
Interestingly, under Slovak Copyright Law there is no difference made between creativity threshold for photographs, computer programs or other works of art or science in the wording of the Copyright Act, which is probably wrong due to different treatment on the European level. Of course, provisions shall be interpreted in the light of European law, which may make the whole difference. Consider for instance that computer programs shall be tested without any qualitative or aesthetic merits of the program or European autonomous copyright test for photographs introduced in these lines of Advocate General in pending Painer C-145/10 case.
119. Article 6 of Directive 93/98, which was codified in Article 6 of Directive 2006/116, governs the conditions under which photos are afforded copyright protection under Union law. (48) The relevant factor under the first sentence of Article 6 is whether the photos are original in the sense that they are the author’s own intellectual creation. The second sentence of Article 6 of that directive provides that no other criteria may be applied to determine their eligibility for protection.120. The referring court will thus have to examine whether the photo which was used as a template for the photo-fit is to be regarded as an original work resulting from the applicant in the main proceedings’ intellectual creation. This notion, which is not defined in Directive 93/98 or Directive 2006/116, is a Union-law notion which must be given an autonomous interpretation. (49) According to the 17th recital in the preamble to Directive 93/98 and the 16th recital in the preamble to Directive 2006/116, which refers to the Revised Berne Convention, an original photographic work exists if it is the author’s own intellectual creation reflecting his personality.121. According to the first sentence of Article 6 of Directive 93/98 and of Directive 2006/116, only human creations are therefore protected, which can also include those for which the person employs a technical aid, such as a camera.122. Furthermore, the photo must be an original creation. (50) In the case of a photo, this means that the photographer utilises available formative freedom and thus gives it originality.123. Other criteria are expressly irrelevant, as the second sentence of Article 6 of Directive 93/98 and of Directive 2006/116 makes clear. A certain degree of artistic quality or novelty are not therefore required. The purpose of the creation, expenditure and costs are also immaterial.124. Accordingly, the requirements governing copyright protection of a photo under Article 6 of Directive 93/98 and of Directive 2006/116 are not excessively high. (51) If this criterion is applied, a portrait photo may be protected by copyright under Article 6 of Directive 93/98 and of Directive 2006/116 where the work was produced by the photographer as a result of a commission. Even though the essential object of such a photo is already established in the person of the figure portrayed, a photographer still enjoys sufficient formative freedom. The photographer can determine, among other things, the angle, the position and the facial expression of the person portrayed, the background, the sharpness, and the light/lighting. To put it vividly, the crucial factor is that a photographer ‘leaves his mark’ on a photo.125. It is for the referring court, applying this criterion in the main proceedings, to determine whether the photo which was used as a template for the photo-fit is protected by copyright under Article 6(1) of Directive 93/98 and of Directive 2006/116.
Footnotes of the General Advocate
48 – Under Article 6(3) of Directive 93/98 and Directive 2006/116, Member States may protect photographs to a greater extent than the requirements of Union law.49 – This is clear from 17th recital in the preamble to Directive 93/98.50 – See Case C‑5/08 Infopaq International, cited in footnote 47, paragraph 35, where the Court made reference to the requirements under Article 6 of Directive 2006/116.51 – See Nordemann, A., in Loewenheim, U., Handbuch der Urheberrechts, 2nd edition 2010, Beck, § 9, paragraph 149. Leistner, M., Copyright Law in the EC: Status quo, recent case law and policy perspectives, Common Market Law Review 2009, p. 847 et seq., 849 et seq., points out that in Member States in which a higher test applied, Article 6 of Directive 93/98 and of Directive 2006/116 has led to a lowering of that test in order to comply with the requirements of the directive. For the purposes of the present case, a more comprehensive comparison with, on the one hand, the criterion of ‘sweat of the brow’, which is familiar from common law and from the legal orders of the United Kingdom and Ireland, and, on the other, the criterion of ‘originalité’ and ‘Schöpfungshöhe’, which is familiar from continental legal orders, is therefore irrelevant.52 – The notion of reproduction in Article 2 of Directive 2001/29 is a combination of the notions of reproduction in the preceding directives. See Reinbothe, J., Die EG-Richtlinie zum Urheberrecht in der Informationsgesellschaft, Gewerblicher Rechtsschutz und Urheberrecht – Internationaler Teil 2001, p. 733 et seq., 736 and Lewinsky, S., Der EG-Richtlinienvorschlag zum Urheberrecht und zu verwandten Schutzrechten in der Informationsgesellschaft, Gewerblicher Rechtsschutz und Urheberrecht – Internationaler Teil 1998, p. 637 and 638.
Wondering where this will end up .. Any comments are welcome.