Monday 7 April 2014

Subject-matter categorisation under EU law: poll results

There are voting decisions
that are more difficult than others to make
Following the 4th GRUR Int / JIPLP Joint Seminar on the different notions of copyright-protectable works across the European Union (EU) which was held in Munich almost a month ago, this blog launched a poll asking its readers whether closed subject-matter systems [as is the case under UK law where, to claim copyright protection a work must - among other things - fall within one of the eight categories indicated by the Copyright Designs and Patents Act 1988] are no longer acceptable under EU law.

This blogger was and still is [more than ever] under the impression that the response should be in the sense that closed systems are no longer compatible with EU law. 

This follows especially from the decisions of the Court of Justice of the European Union (CJEU) in Case C-5/08 Infopaq [here], Case C-393/09 BSA [here], Joined Cases C-403/08 and C-429/08 FAPL [here], and Case C-145/10 Painer [here]

At the national level, also super-learned Mr Justice Arnold said [in his 2013 decision in SAS v WPL, at para 27] that:

"In the light of a number of recent judgments of the CJEU, it may be arguable that it is not a fatal objection to a claim that copyright subsists in a particular work that the work is not one of the kinds of work listed in section 1(1)(a) of the Copyright, Designs and Patents 1988 and defined elsewhere in that Act."

It seems, however, that 1709 Blog readers do not agree with this conclusion. 

The 1709 Blog poll attracted 56 votes [thanks so much to all those who cast their precious vote!], and the results were as follows: 
  • 23 people (41%) thought that the CJEU has not yet been asked to rule on national systems of subject-matter categorisation; 
  • 22 people (39%) believed that the answer should be in the sense that we are now required to protect anything that is a 'work' if it displays sufficient originality;
  • Finally, 11 voters (19%) held the opinion that it all depends on whether the CJEU wants to have a particular work (eg a graphic user interface) protected by copyright.

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