The criterion of originality is the touchstone for copyright protection in different legal regimes throughout Europe. It operates as a threshold and therefore defines the breadth of protection. It may even reflect the philosophical foundations of the respective copyright systems. It is subject to a vital policy debate amongst legal scholars as to where to draw the line between protected and non-protected subject matter.
However, copyright codes throughout Europe rarely define this important criterion. Also, European law lacks a codified common definition of a work. Member states of the European Union mostly grant protection according to their respective standards, which may differ significantly. The European Directives only define originality for computer programs, databases and photographs as “the author’s own intellectual creation”. In a number of recent decisions, the
ECJ applied this standard of originality to all subject matter. These decisions are highly debated in different member states, such as the United Kingdom, France and Germany. Several questions arise:
First, it is debatable whether or not the phrase of “the author’s own intellectual creation” is actually capable of harmonising the notion of a copyright work throughout Europe. Any effect of harmonisation depends on the national courts’ interpretation of this standard of originality. A detailed analysis of national case law in the UK, France and Germany shows that courts tend to regard the European definition as a simple reformulation of domestic law. The more
fundamental question is therefore if and which common criteria are used throughout Europe to describe the originality of a work and if they are reflected by the ECJ’s case law.
Second, in order to come closer to the ever repeated vision of a common European copyright law, it is necessary to analyse whether or not the European formula of “the author’s own intellectual creation” as such is sufficient to establish a common European notion of a copyright work. In continental laws, originality and subject matter are rather indivisible criteria. Yet, it is questionable which function the criterion of originality should serve and what other factors are or should be used to determine the protection of specific subject matter. Clarifying the notion of originality through a functional analysis may help to understand and possibly to harmonise existing differences in copyright protection throughout Europe.