Originality in EU Copyright: full Harmonization through Case Law. Eleonara Rosati

2013, 304pp Hardback 978 1 78254 893 5

Edward Elgar 2013.

Reviewed by Philip Leith

Rosati’s text is both a readable and useful review of where we are in copyright at present, combined with a strong argument that we are on the ‘right road’. Her thesis is that copyright is in a mess due to the conflicting approaches in the various European jurisdictions; that a coherent structure should be imposed upon this; and that this is already being carried out by the judiciary at the CJEU. This text is a reworking of her PhD thesis, but the quality of writing is certainly above that of the typical dissertation.

The first sections of the book provide a good analysis of where we are in copyright in global and European terms and how we got here.

Few would disagree that copyright is in a mess - mostly brought on by the new informational technologies as they change the nature of what is to be protected from a physical product to a virtual one. However, the issue which particularly concerns Rosati is that there has been no central understanding of what the hurdle for protection should be: the common law one of ‘sufficient skill, labour and judgement’ or the more European approach of looking for authorial creativity. Rosati is clearly a believer that a harmonization is required in order that information products can transfer easily across the internal borders of Europe – the goal of the Commission in its various reports and Directives – and brings an adept comparative approach to this argument. Her argument is that of the comparative lawyer seeking a coherent jurisprudence, and she believes that this has now been found through judicial activism in the CJEU. The text is thus not only interesting to those interested in copyright, but to those who are interested in the manner in which law is being created in the EU (particularly those who believe the common law can hold off the approaches of the civil law).

The decision which Rosati believes is central to this judicial activism is the Infopaq case. [1] Infopaq operated as a media analysis company providing synopses of published articles to their clients. The case involved their use of new technology: they would scan publications, process these with OCR to produce text, search that text for keywords, when keywords were found indexing information was collected and five words before and five words afterwards were held in that index entry which would then be passed onto clients. The file containing the scan and the file containing the OCR’d text were deleted on each occasion. Only an index entry was left after this process. To some (including myself) this is a classic example of the kinds of ‘information products’ which the EU has been attempting to develop as part of the information society – an elegant approach which operates in an automated manner using technology to cut costs and produce more and better products. The publishers of the original articles did not agree: they saw that this was an infringement of their copyrights and that permissions should be sought. The case revolved around the interpretation of Art 5(1) of the InfoSoc Directive [2] which allows ‘temporary acts of reproduction’ … ‘which are transient or incidental [and] an essential part of a technological process whose sole purpose is to’ allow transmission or which is lawful and which have no independent economic significance. The InfoSoc Directive was controversial for several reasons, but primarily the introduction of technological measure protection.

Rosati, though, focuses on the issue of what should be protected: the threshold of protection. She argues that the CJEU deftly, in this case, “achieved the full harmonization of the originality requirement at the EU level” [p107] by looking for the elements which are the intellectual creation of the author of the work. Thus it is not the quantity of a work which should be looked at when considering infringement, nor the skill, labour or judgment but that there was an authorial application of creativity. Without this intellectual input, there can be no protection. Rosati notes that the UK’s approach now diverges from current EU law; that cases in the not too distant past might have been decided in a different manner; and that – generally – this is all a good thing since it offers a route to harmonization which is urgently required. From the Infopaq case, she moves on to the later CJEU cases which further develop this intellectual creation approach.

The consequence of the new approach is that the judge must always be looking for the author and whether he was intellectually creative. This leads to no more ‘sweat of the brow’.

Is this harmonized approach to be welcomed? Perhaps. But as shown by Infopaq it can have negative consequences for European information products. The court found that there was sufficient intellectual creation of the author of the work that the 11 words extracted for the index were infringing. One can imagine the US information industry laughing at the result: a country where information products have produced huge economic benefit (think of the value of Google) through creative forms of indexing and accessing materials. Little wonder that Europe’s information industry seems so insipid.

A second problem is the notion of the author’s intellectual creation, which seems to be a return to the romantic ideal of the artist in the garret, whose spark creates the work. Many of the works being produced today do not come from such a context, rather being the product of industrial processes. Software, for example, is one such. Given the relatively poor understanding of software by many judges, one wonders just how they will be able to determine what is creative and what is not in any given piece of program code. For example in SAS [3] , the CJEU appeared (in my view) to have got to the correct result but through a rather odd view of what software is. They would have been better (once again, in my view) to have been approaching the problem from a more functional angle rather than one of originality. Certainly, for information products functionality is probably a more difficult aspect (as the history of software litigation has shown) for judges to deal with. Rosati’s overview of the case notes [p184/5] these difficulties.

After this review of cases, Rosati moves onto current harmonization projects: the Copyright Principles Project, the Wittem Group, and the current views of the EC itself on the need for harmonization.

Overall, Rosati’s text provides a very accessible view of the topic. I have some scepticism that harmonization of originality is really the most central problem for the copyright system, but she puts her case across well.

[1] Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009]

[2] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

[3] Case C-406/10 SAS Institute Inc v World Programming Inc.