CJ Remarkably Willing To Fully Harmonise EU Copyright Law

On 1 December 2011, the European Court of Justice ("CJ") rendered its decision in Eva-Maria Painer v. Standard Verlags GmbH et al. This case deals with a number of questions referred by the Handelsgericht Wien (Austria) regarding the unauthorised use of portrait photos in newspapers. This legal alert addresses the CJ's answers concerning the criteria for copyright protection of a work and the scope of protection.

Gradual Harmonisation Of The Threshold Of Originality

The objective of the EU Information Society Directive is to harmonise certain aspects of copyright, but does not provide for harmonisation of the threshold of originality, the concept to define a copyrighted work. Although considered to be left up to the member states to define (as is illustrated by art 17 Designs Directive), the CJ in case after case is nevertheless harmonising the concept of copyright protection. First, by defining the originality threshold for each type of work:

In case C-5/08 Infopaq International of 16 July 2009 a first step towards harmonisation was taken, when the CJ considered in respect of a text excerpt consisting of 11 words, that copyright applies only to a subject matter which is original in the sense that it is its author's own intellectual creation. In case C-393/09 BSA of 22 December 2011 the CJ confirmed that a graphic user interface of a computer program can be protected by copyright if it is its author's own intellectual creation. That criterion cannot be met by components of the work which are differentiated only by their technical function. In case C-403/08 and C-429/08 Football Association Premier League and Others of 4 October 2011, the CJ further specified that works that leave no room for creative freedom for the purposes of copyright, such as football matches, cannot be regarded as copyright protected works, thus setting the limit for what is and what is not protected. With yesterday's ruling, the CJ confirms that the concept of copyright protection is harmonised and that the same criteria apply to all types of works. According to the CJ, a copyright protected work requires 'an intellectual creation of the author reflecting his personality and expressing his free and creative choices in...