Problems with the European conception of originality

The discussion above highlights a central problem with the current European conception of authorial works, and of originality specifically: it invites the courts to recognize even trivial works as original, and hence as requiring copyright protection.'11 This is problematic for reasons of law as well as of policy. As a matter of law, it is well established that where a common language term is used in European legislation without definition, its meaning and scope must “be determined by considering its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part”.'[1] Since terms such as “work”, “author”, “original”, and “intellectual creation” are common language terms not defined in European copyright legislation, they are appropriately interpreted in line with this approach. Contrary to the Court’s suggestion in Infopaq, however, the usual meaning ot “authorship” and “intellectual creation” in ordinary language is not choosing, ordering, and combining words or other elements of expression. This is the case notwithstanding the suggestion above that what matters about an original work are its formal expressive properties: how a literary work reads, an artistic work looks, a musical work sounds, and a dramatic work looks and sounds.[2] For despite this, most people are unlikely to regard all combinations of words, colors, sounds, and movements as intellectual creations of an author, and likely instead to distinguish between music and other sounds, drama and other events, sculpture and other three-dimensional objects, and art and other visually perceptible artefacts. As 1 have argued at length elsewhere, drawing on work ot art theorist Kendall Walton, these apparently contra-indicative intuitions about works point to the importance of an object’s non-formal features, and in particular to its origins, in constituting it as a work of authorship.[3] Put differently, they point to an ordinary language conception of authorial works as constituted not only by their expressive properties, but also by the history of their individual creation: the intention or expectation of the persons who created them, and the view ot the society in which they were created. It follows from this conception that to determine whether a subject matter is an original work, it is necessary to look beyond its properties of expressive form to consider also its origins.

Not only does this non-formalistic conception ot original works better reflect ordinary language understandings of what an authorial work is, it is also consistent with the European “author’s own intellectual creation” test of originality,'4 and offers a more convincing explanation of the European case law in this area. For example, and returning to the distinctions above: a sequence of human movements enacted on a stage, and a pile of bricks exhibited in an art gallery, will plainly be original works; while the same sequence enacted on a football field, and pile of bricks on a construction site, will equally plainly not. One asks why there is the difference, and the answer lies in the non-formal properties of original works: the intention or expectation of the persons who produced them, and the view of society regarding their nature.7’ Absent an appreciation of the constitutive importance of these non-formal properties, one is left with reasoning of the type advanced in Football Association Premier League in an attempt to justify ex post the only finding that common sense permits in the face ot a claim for copyright in respect of such objects as a live football match. The way is also paved for suggestions that copyright might properly extend to other (plainly) non-authorial subject matter, such as recombinant DNA sequences.[4] [5] [6]

In sum, the European legal conception of originality is difficult to accept, and difficult also to reconcile with the usual meaning ot such terms as “original”, “author”, and “intellectual creation” in ordinary language. By conceiving originality in purely formalistic terms, as requiring only the selection and arrangement of words or other expressive elements, the CJEU has ignored the non-formal properties of original works in popular conception, supported the protection of such trivial and non-authorial subject matter as short phrases and other combinations ot two or more expressive elements, and paved the way for the subsistence of copyright in a range of other subject matter on the basis of their amenability to aural or visual perception. It has also required unclear and incoherent legal reasoning of the type deployed in Football Association Premier League to avoid absurd legal results, such as the recognition of sporting events as works ot authorship.

At this point, an objection might be raised that the meaning of “authorial works” does not depend exclusively on ordinary language; the term’s statutory context also matters. For example, some might counter that computer programs are not authorial works as a matter of ordinary language, so why should other supposedly non-authorial subject matter, including other subject matter analogous to computer programs such as DNA sequences, not be protected by copyright as well? However, while it may be true that computer programs are not regarded as works of literary authorship as a matter of ordinary language, there is nothing preventing the legislature from deeming them to be treated as such for copyright purposes; which is what the European legislature has done via the Software Directive. As explained above, the result is to require that programs be protected as authorial works, rather than in any other conception, including most obviously as inventions. Hence the Directive’s provision that, “[t Jor the avoidance of doubt”, copyright in a program subsists only in its expression, and does not also extend to its underlying ideas and principles,7' which ideas and principles may instead be patented as technological artefacts. However supportable the extension of copyright to computer programs might be as a matter ot policy, as “deeming” legislation the Software Directive cannot justify a general judicial conception of the original works protectable by copyright to include objects far removed from ordinary language understandings ot works of literary and artistic authorship.

Other aspects of the statutory context in which the term “authorial works” falls to be interpreted might also be invoked to justify the current conception of originality under European law. Indeed, the CJEU suggested the same in Infopaq, by supporting its expansive and formalistic conception of literary authorship in that case with reference to provisions of the InfoSoc Directive: the requirement that authors have the right to authorize or prohibit the reproduction ot their works “in whole or in part”, and the emphasis on ensuring “a high level ot protection ... for authors”.'8 It is submitted however that while these provisions may have supported the conclusion that any copyright subsisting in published articles might enable their authors to prevent the unauthorized reproduction of 11-word excerpts as “parts” of their works within the meaning of the Directive, they cannot have supported the Court’s further suggestion that any selection and arrangement of words might itself be an original work entitled to copyright. The reason is that each assumes the existence of an authorial work, and cannot therefore be invoked to determine what an authorial work is for the purpose of copyright law.

  • [1] See, e.g., Case C-201/13 Johan Deckmyn and Vrijheidsfonds VZWv. Helena Vandersteen ECLI:EU:C:2014:2132(3 September 2014) [19].
  • [2] Main text following n. 19.
  • [3] J Pila, “Copyright and its Categories of Original Works" (2010) 30 Oxford Journal of Legal Studies 229—254.
  • [4] Including its requirement for human authorship: see further below.
  • [5] Pila (n. 73) 239-240; LucasFilm Ltd v. Ainsworth [2008] EWHC (Civ) 1878, [2009] FSR 2 [118).
  • [6] See, e.g., AW Torrance, "DNA Copyright” (2011) 46 Valparaiso University Law Review 1-41; N Lucchi,“Copyrightabiity of engineered DNA sequences" in E Bonadio and N Lucchi, Non-Conventional Copyright:Do New ami Atypical Works Deserve Protection? (Edward Elgar 2018) 367-381. Cf. DL Burk, “Copyrightabilityof Recombinant DNA Sequences” (1989) 29 Jurimetrics 469-532 (arguing that copyright could in principleprotect recombinant DNA sequences, but should not in policy).
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