Story of European originality concept seems to be evolving with every possible court case. For those who don´t know what I am talking about, a brief summary first.
CJEU first in Infopaq C-5/08 expanded Union law concept of originality to the other works that photographs, databases and computer programs, which have their own directives. Later in BSA C-393/09 and Football Association Premier League C-403/08 it basically confirmed this position. Moreover, it strengthened the importance of this concept - setting it as the sole requirement for the copyright protection. On top of that, BSA invented so called functionality exclusion, which relates to expression-idea dichotomy and way of testing originality. This is being now quite heavily used also in regard to computer programs in pending SAS Institute C-406/10 case (BSA addressed works in general). Then last week, CJEU said in Painer C-145/10 little bit more about how he thinks this originality test should be applied in regard to photographs. He said that reflecting personality of the author is what matters, though photographs does not have to be too artistic. Today, Advocate General Paolo Mengozzi in Football Dataco C-604/10 put those bits together and now he is saying following:
37. Now, on this point there is no doubt that, as regards copyright protection, the Directive espouses a concept of originality which requires more than the mere ‘mechanical’ effort needed to collect the data and enter them in the database. To be protected by the copyright, a database must – as Article 3 of the Directive explicitly states – be the ‘intellectual creation’ of the person who has set it up. That expression leaves no room for doubt, and echoes a formula which is typical of the continental copyright tradition.39. The Court has made some statements on this matter and, in particular, has stressed that the copyright protection of databases under Article 3 of the Directive – like the copyright protection of computer programs under Article 1(3) of Directive 91/250 (14) or of photographs under Article 6 of Directive 2006/116 (15) – requires that the works be ‘original, in the sense that they are their author’s own intellectual creation’. (16)
38. Clearly, it is not possible to define, once and for all and in general terms, what constitutes an ‘intellectual creation’. That depends on an assessment which, as I have said, is not necessary in the present case. In any event, if ever that assessment is required, it is for the national courts to undertake it on the basis of the circumstances of each individual case.
40. In that regard, the Court has also stated that a work is an intellectual creation if it reflects the personality of its author, which is the case if the author was able to make free and creative choices in the production of the work. (17) The Court has further specified that, in general, the necessary originality will be absent if the features of a work are predetermined by its technical function. (18)Footnotes ..
FN 16 – Case C‑5/08 Infopaq International  ECR I‑6569, paragraph 35. Moreover, it must be observed that the three directives just referred to use terminology which in some languages is identical and in others (for instance, Italian) clearly indicates, despite some slight differences, that the legislature intended to refer to the same concept.
FN 17 – Case C‑145/10 Painer  ECR I‑0000, paragraphs 88 to 89.
FN 18 – Case C‑393/09 Bezpečnostní softwarová asociace  ECR I‑0000, paragraph 49.
So, will the CJEU in Football Dataco mix functionality criterion and personal touch argument to apply it also to the databases originality? I guess the only next step would be then using this test in regard to works in general. Would anybody doubt about existence of this doctrine then?