Thursday, March 1, 2012

Football Dataco: Single European Originality

The Court of Justice of European Union today handed down its very important decision in the Football Dataco C-604/10. Before this decision, I was still doubting whether originality under Art. 2(a) Information Society Directive is the same as one under computer programs directive, database directive and term directive (see my posts here, here, here and last here). In other words, I was asking myself whether we now have 1 + 3 standards, or only one single notion, which is the same for all types of works (databases, computer programs, photographs + all the others). After Football Dataco C-604/10 I am now sure that there is just one, single European notion of the author´s own intellectual creation regardless of the type of a work.

37      Secondly, as is apparent from recital 16 of Directive 96/9, the notion of the author’s own intellectual creation refers to the criterion of originality (see, to that effect, Case C‑5/08 Infopaq International [2009] ECR I‑6569, paragraphs 35, 37 and 38; Case C‑393/09 Bezpečnostní softwarová asociace [2010] ECR I‑0000 paragraph 45; Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑0000, paragraph 97; and Case C‑145/10 Painer [2011] ECR I‑0000, paragraph 87).

38      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 (see, by analogy, Infopaq International, paragraph 45; Bezpečnostní softwarová asociace, paragraph 50; and Painer, paragraph 89) and thus stamps his ‘personal touch’ (Painer, paragraph 92).

39      By contrast, that criterion is not satisfied when the setting up of the database is dictated by technical considerations, rules or constraints which leave no room for creative freedom (see, by analogy, Bezpečnostní softwarová asociace, paragraphs 48 and 49, and Football Association Premier League and Others, paragraph 98).

40      As is apparent from both Article 3(1) and recital 16 of Directive 96/9, no other criteria than that of originality is to be applied to determine the eligibility of a database for the copyright protection provided for by that directive.
45      In light of the considerations above, the answer to the first question is that Article 3(1) of Directive 96/9 must be interpreted as meaning that a ‘database’ within the meaning of Article 1(2) of that directive is protected by the copyright laid down by that directive provided that the selection or arrangement of the data which it contains amounts to an original expression of the creative freedom of its author, which is a matter for the national court to determine.

46      As a consequence:

–        the intellectual effort and skill of creating that data are not relevant in order to assess the eligibility of that database for protection by that right;

–        it is irrelevant, for that purpose, whether or not the selection or arrangement of that data includes the addition of important significance to that data, and

–        the significant labour and skill required for setting up that database cannot as such justify such a protection if they do not express any originality in the selection or arrangement of the data which that database contains.
Since today, CJEU can probably expect tons of preliminary questions. One maybe even from Slovakia soon.

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