[Guest post] When creative collaboration goes wrong

The 1709 Blog is happy to host the following contribution by Hugo Cox (Hamlins), concerning the recent joint authorship decision of the Court of Appeal of England and Wales in Kogan v Martin [see also IPKat here].

Here's what Hugo writes:

When creative collaboration goes wrong

One of the most distinctively European contributions of European law to UK copyright law has been its test for originality (being one of the requirements for copyright protection). Previously UK courts had looked for the prosaic inputs of labour, skill or judgment. Now they ask whether the work is the author’s ‘intellectual creation’, looking to see if it reflects the author’s personality, expressing free and creative choices – there must be a certain … je ne sais quoi, you might say.

There is some doubt as to whether this new test has made much difference in deciding which works do or do not acquire copyright protection. However, in the law of joint authorship, a change seems unmistakable. In the past, English courts have required a contributor to input significant skill and labour to earn the title and rights of a joint author. So, for example, an attractive 16-bar saxophone solo did not meet the threshold. Now the Court of Appeal has affirmed the ‘relatively undemanding’ requirement is, once again, to contribute elements which express the contributor’s own intellectual creation. We know from the CJEU’s Infopaq judgment that this can be achieved in just eleven words.

Kogan v Martin

This conclusion of the Court of Appeal was arrived at in its judgment of 9 October in Kogan v Martin, a case concerning the screenplay for Florence Foster Jenkins, a film which starred Meryl Streep and Hugh Grant. The question was whether it had been written solely by Nicholas Martin, as had been decided in the Intellectual Property Enterprise Court in 2017, or whether Julia Kogan was joint author. The Court of Appeal was not content with the reasoning of the lower court and ordered a retrial.

It seemed Martin had held the pen and Kogan had contributed only to the first drafts. However, the Court emphasized a joint author can be someone who only offers suggestions to the writer  – she does not necessarily have to put pen to paper or have the last word on what goes into the script. Contributions to plot ideas or inventing characters are on an equal footing with contributions to the execution of a work. And if a work has been created through a series of drafts, inputs into the earlier drafts count.

Complex relationships, complex law

The Court set exacting standards for the assessment of the complex evidence of creative collaboration. The fact witnesses’ recollections may be imperfect does not absolve the judge of his duty to take those recollections into account alongside any documentary evidence and to come to a conclusion about the nature of the interaction between the parties and their contributions. Were Julia Kogan’s contributions akin to those of a researcher, or was there a joint creative process? The assessment is highly fact-specific and difficult, but must be undertaken.

Though it seems the quantitative threshold for joint authorship has been lowered, the overall assessment of the evidence has become ever more complex, subtle and exacting. And the legal concepts are slippery. Joint authors must be engaging in a ‘common design’ – according to the Court of Appeal this is not something Ezra Pound was doing when he made extensive revisions to Eliot’s The Waste Land. The Court explained, perhaps less than helpfully: ‘he was acting as a friend and critic and not a collaborator in a common design’. And appealing though the European ‘intellectual creation’ test is, can you necessarily spot someone’s personality in their output and when exactly are choices free and creative?

We live in a time when creative collaboration is widespread – from pop bands to sitcom writers’ rooms to the interactive world of the internet. It’s a complex picture, and one which the law should try to avoid complicating further.

Art for Art's $ake?

It is rather depressing to hear that once again Wikimedia is being threatened with a copyright suit for publishing digital images of works of art which are themselves in the public domain. Like the spat between the UK's National Portrait Gallery and Wikimedia back in 2009, the current case involves another museum, this time it's the ReissEngelhorn Museum in Mannheim, Germany. Arguably Germany's domestic copyright law is less sympathetic to facsimile photographic copying of works of art than is thought to be the case under UK law. In fact of course both jurisdictions are likely to follow the EU acquis found principally in the Infopaq case where the CJEU decided that the test for originality was whether the new work was an expression of the spirit of the author. No doubt, like the 2009 dispute, the Reiss Engelhorn's complaint may well feature other matters such as database right and/or technical prevention measures, however this posting is concerned just with the copyright aspect.

The latest development is depressing for a number of reasons, not least because one might have hoped this would be settled law by now, considering that one of first test cases on the subject - the Graves Case - took place in 1869, a mere seven years after copyright protection in the UK had been extended to include photographs. In that case the photographer Henry Graves won his case, with the trial judge (Blackburn J) concluding "And it seems to me that a photograph taken from a picture is an original photograph, in so far that to copy it is an infringement of this statute [the Fine Art Copyright Act 1862]." Despite this slightly elliptical reasoning, the courts in England and Wales have not seriously upset this finding ever since. Although the test for originality more generally has been refined on many occasions, most notably in recent times in Designers Guild [2001], Hyperion Records [2005], Baigent v Random House [2006] and more specifically with regard to photography, in Antiquesportfolio.com v Rodney Fitch [2001], the line taken by the UK courts has been that if the photographer uses sufficient skill and labour in his or her choices (such as the timing, choice of viewpoint, exposure, depth of field, lighting etc) then the resulting photograph would be entitled to copyright as an original work. In contrast to this, in the US case of Bridgeman Art Library v Corel Corp [1999], the District Court of the Southern District of New York sought to apply UK law to the subject of photographs of classic works of art, and came to the opposite conclusion, namely that copyright did not subsist in mere photographic reproductions. And that was at a time when such photography was based on the use of film which arguably required greater skill on the part of both the photographer and the printmaker when it came to correctly reproducing the colours of a painting. By comparison, today's digital photography together with the widespread use of sophisticated editing software to faithfully recreate colours requires rather less skill and labour. And although not a case about photography, in Interlego AG v Tyco Industries, the UK Privy Council found that where design drawings were being manually copied, "[t]here must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work. But copying per se, however much skill and labour be devoted to the process, cannot make an original work"

In mainland Europe, photography has always been something of a Cinderella artform. A typical response of the national courts can be seen in the Jimi Hendrix portrait case reported on by Marie-Andree a couple of months ago. And as well as Infopaq, in Painer [2001] we have a decision of the CJEU which provides additional clarity on the specific subject of originality in photographs. Taking German national law and the two CJEU decisions, Infopaq and Painer, all together, I wouldn't rate the Reiss Engelhorn Museum's chances of success in court as being too good.

And although the matter was settled, it is worth looking back at the outcome of the NPG & Wikipedia dispute from six years ago. According to the Wikipedia article referred to above, it would appear that the NPG resolved from an early stage not to resort to litigation, and the status quo today is that Wikimedia continues to host the images at the heart of the dispute. No money appears to have changed hands, so are we to conclude that the NPG effectively lost the battle? They have certainly amended their conditions of access allowing a large number of low resolution images to be freely accessed, and have made higher resolution images available 'for free' to the academic community. But it remains to be seen whether the Reiss Engelhorn will be forced to adopt a similar outcome.

There is without doubt a valid argument that works in the public domain should be readily accessible by the public, especially in the digital age, but where each work is unique and often very valuable (such as art), can such access invariably be free? There is considerable expense involved in the digitisation process itself, in preserving, restoring and protecting the original artworks, and in making them available to be viewed in person as well as online. Museums and art galleries cannot be expected to absorb this cost without passing at least some of it on to the public, although many institutions seek to offset these costs by charging commercial publishers and the like for access to high resolution images, rather than by charging higher public entry fees. But should copyright be used, possibly fraudulently, to underpin this business model? And if so, how can any work of art which is not already sited in a public place, ever be said to be truly in the public domain? And given that the EU has recently given museums, libraries and archives greater ability to make their orphan works available to the public, while recouping no more than the cost of digitization, how does this new right sit with the less justifiable (ab)use of copyright in cases where the copyright in the original is known to have expired long ago?

Painer: pain for the press?

On 1 December the Court of Justice delivered its 150-paragraph ruling in Case C-145/10 Eva-Maria Painer v Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, SPIEGEL-Verlag Rudolf AUGSTEIN GmbH & Co KG and Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG (Opinion of AG Trstenjak noted by the IPKat back in April here).

As our readers may remember, this case was a reference for a preliminary ruling from the Handelsgericht Wien (Austria), in the context of proceedings for copyright infringement brought about by photographer Eva-Marie Painer against some Austrian and German newspaper and magazine publishers.

Ms Painer is a freelance photographer and took several photographs of Natascha Kampusch  designing the background, deciding the position and facial expression, and producing and developing them. Ms Painer sold the photographs which she produced, but without conferring on third parties any rights over them and without consenting to their publication. After Natascha Kampusch was abducted in 1998, the competent security authorities launched a search appeal in which the photographs by Ms Painer were used. Following Natascha’s escape from her abductor in 2006 and prior to her first public appearance, the defendants in the main proceedings published such photographs in newspapers, magazines and websites without, however, indicating the name of the photographer, or indicating a name other than Ms Painer’s as the photographer. They claimed that they had received the contested photographs from a news agency without Ms Painer’s name being mentioned or with a name other than Ms Painer’s name being indicated as the photographer’s. Several of those publications also featured a portrait, created by computer from the contested photographs, which, since there was no recent photograph of the girl until her first public appearance, was a photo-fit of Natascha.

In 2007, Ms Painer sought an order that the defendants in the main proceedings immediately cease the reproduction and/or distribution, without her consent and without indicating her as author, of the contested photographs and the contested photo-fit. The Oberster Gerichtshof held that the defendants in the main proceedings did not need Ms Painer’s consent to publish the contested photo-fit. Despite being the contested photograph which had been used as a template for the contested photo-fit a photographic work protected by copyright, the production and publication of the contested photo-fit was not an adaptation for which the consent of Ms Painer was needed. Anyway, the court decided to stay the proceedings and revert to the Court of Justice, seeking clarification of four questions:

(1) Is Article 6(1) of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [aka Brussels I] to be interpreted as meaning that its application and therefore joint legal proceedings are not precluded where actions brought against several defendants for copyright infringements identical in substance are based on differing national legal grounds the essential elements of which are nevertheless identical in substance – such as applies to all European States in proceedings for a prohibitory injunction, not based on fault, in claims for reasonable remuneration for copyright infringements and in claims in damages for unlawful exploitation?

The Court held that Article 6(1) must be interpreted as not precluding its application solely because actions against several defendants for substantially identical copyright infringements are brought on national legal grounds which vary according to the Member States concerned. It is for the referring court to assess, in the light of all the elements of the case, whether there is a risk of irreconcilable judgments if those actions were determined separately.

(4) [which the Court deemed it appropriate to address after Question 1] Are Article 1(1) of Directive 2001/29 in conjunction with Article 5(5) thereof and Article 12 of the Berne Convention, particularly in the light of Article 1 of the First Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 17 of the Charter of Fundamental Rights of the European Union, to be interpreted as meaning that photographic works and/or photographs, particularly portrait photos, are afforded “weaker” copyright protection or no copyright protection at all against adaptations because, in view of their “realistic image”, the degree of formative freedom is too minor?

By referring to the ruling in Infopaq (noted in this Blog here), the Court first recalled that copyright is liable to apply only in relation to a subject-matter, such as a photograph, which is original in the sense that it is its author’s own intellectual creation, i.e. if it reflects the author’s personality. That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices (see, a contrario, Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑0000, paragraph 98).

As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production. In the preparation phase, the photographer can choose the background, the subject’s pose and the lighting. When taking a portrait photograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the one he wishes to adopt or, where appropriate, use computer software. By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’. Consequently, as regards a portrait photograph, the freedom available to the author to exercise his creative abilities will not necessarily be minor or even non-existent.

In view of the foregoing, a portrait photograph can be protected by copyright if – which it is for the national court to determine in each case – such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph.

Coming to the question whether such protection is inferior to that enjoyed by other works, particularly photographic works, the Court observed that nothing in Directive 2001/29 or in any other directive applicable in this field supports the view that the extent of such protection should depend on possible differences in the degree of creative freedom in the production of various categories of works. Therefore, as regards a portrait photograph, the protection conferred by Article 2(a) of Directive 2001/29 cannot be inferior to that enjoyed by other works, including other photographic works.

(3)(a) [which the Court decided to address next] Is Article 5(3)(e) of Directive 2001/29, in the light of Article 5(5) thereof, to be interpreted as meaning that in the interests of criminal justice in the context of public security its application requires a specific, current and express appeal for publication of the image on the part of the security authorities, i.e. that publication of the image must be officially ordered for search purposes, or otherwise an offence is committed?

(b)If the answer to question 3a should be in the negative: are the media permitted to rely on Article 5(3)(e) of [Directive 2001/29] even if, without such a search request being made by the authorities, they should decide, of their own volition, whether images should be published “in the interests of public security”?

(c)If the answer to question 3b should be in the affirmative: is it then sufficient for the media to assert after the event that publication of an image served to trace a person or is it always necessary for there to be a specific appeal to readers to assist in a search in the investigation of an offence, which must be directly linked to the publication of the photograph?

As a preliminary point, the Court observed that the provisions of Directive 2001/29 do not expressly address the circumstances in which the interests of public security can be invoked with a view to the use of a protected work, meaning that, though the Member States which decide to enact such an exception enjoy a broad discretion in that respect, such discretion must comply with the need for legal certainty for authors with regard to the protection of their works and, in any case, is limited by Article 5(5) of the Directive. The Court held that the media, such as, in this case, newspaper publishers, cannot be allowed to confer on themselves the protection of public security. Only States, whose competent authorities are provided with appropriate means and coordinated structures, can be regarded as appropriate and responsible for the fulfillment of that objective of general interest by appropriate measures including, for example, assistance with a search appeal. Such a publisher cannot, therefore, of its own volition, use a work protected by copyright by invoking an objective of public security. However, the Court added that it is conceivable that a newspaper publisher might, in specific cases, contribute to the fulfilment of such an objective by publishing a photograph of a person for whom a search has been launched. In any case, it should be required that such initiative is taken, first, within the framework of a decision or action taken by the competent national authorities to ensure public security and, second, by agreement and in coordination with those authorities, in order to avoid the risk of interfering with the measures taken by them, without, however, a specific, current and express appeal, on the part of the security authorities, for publication of a photograph for the purposes of an investigation being necessary.

(2)(a) Is Article 5(3)(d) of Directive 2001/29, in the light of Article 5(5) of that directive, to be interpreted as meaning that its application is not precluded where a press report quoting a work or other protected matter is not a literary work protected by copyright?

(b) Is Article 5(3)(d), in the light of Article 5(5) thereof, to be interpreted as meaning that its application is not precluded where the name of the author or performer is not attached to the work or other protected matter quoted?

The Court observed – inter alia - that Article 5(3)(d) of Directive 2001/29 sets out a series of conditions for its application which do not include a requirement that a work or other protected subject-matter must be quoted as part of a literary work protected by copyright. Therefore the proviso must be interpreted as not precluding its application where a press report quoting a work or other protected subject-matter is not a literary work protected by copyright. As a consequence, it must be interpreted as meaning that its application is subject to the obligation to indicate the source, including the name of the author or performer, of the work or other protected subject-matter quoted. However if, in applying Article 5(3)(e) of Directive 2001/29, that name was not indicated, that obligation must be regarded as having been fulfilled if the source alone is indicated.

The decision of the Court may lead the readers of this Blog to engage in reflections and comments upon the well-known tendency – at the level of EU judiciary – to tackle the concept of originality as a means to define the scope of protection. This case may also raise observations as to the related issue of copyright limitations …

Murphy’s law of licensing?

I have been thinking about the practical ramifications of ECJ’s decision in MPS v Murphy and FAPL v QC Leisure (see previous posts) and the impact of the over arching principle that EU competition law should ‘trump’ copyright. I am not sure the decision should have come as that much of a surprise – all Member States are part of a ‘common market’ and the principle of the free movement of people, labour, capital, goods and services is at the heart of that. The ‘Television Without Frontiers' Directive provides for this in the audio visual sphere, and, with certain riders, looks for the free movement of television programmes within the internal market. For those nor familiar with the background to this case I have put some very brief reference materials at the foot of this blog.

So where do rights owners and broadcasters go from here?

- In the long term it may be prudent to treat the EU as ‘one’ territory. It would seem odd to licence audio and audio visual rights for ‘Utah’ or ‘Salt Lake City’ in the USA or for just ‘Essex’ or ‘Colchester’ in the UK – but not impossible. But if Europe is one market with one currency (as it almost is at the moment) then the concept of inter-EU territorial licensing on a country by country may fade.

- That doesn’t mean that Coditel is necessarily bad law. But it is bad law in certain circumstances and might well be decided differently now.

- If a licensor licences say a film for a German TV station then that Licensor have to accept that if anyone in Europe wishes to access that service – whether its free to air or by paying a relevant subscription fee, the they can so do from anywhere within the EU, if it is technically possible – and that will be legal.

- Licensors cannot use contractual terms to restrict inter-EU access, whether such terms restrict access to services or to physical goods such as decoders. With decoders it seems that a system of exclusive licences is contrary to Article 101(1) of the Treaty of Functioning of the the European Union if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcasts within the EU but outside the Member State for which the licence is granted. These agreements are restrictive agreements contrary to 101(1).

- There can only be ‘one’ price structure for Europe from a pay TV provider. So if say a customer in Spain wishes to watch Sky TV then they can – provided they pay the relevant subscription fee – and that fee must be the same for all EU consumers.

- Territorial partitioning and in particular artificial price differences between the partitioned national markets are irreconcilable with the fundamental aim of the Treaty, which is completion of the internal market.

- The ECJ said that “The licence agreements must not prohibit the broadcasters from effecting any cross-border provision of services that relates to the sporting events concerned, because such an agreement would enable each broadcaster to be granted absolute territorial exclusivity in the area covered by its licence, would therefore eliminate all competition between broadcasters in the field of those services and would thus partition the national markets in accordance with national borders.” But this doesn’t matter if there is only one broadcaster by satellite – more on that later!

- If a EU customer wishes to watch a Greek service, whatever it contains and wherever they are in the EU, then they can provided again they pay the relevant subscription fee. The decoder is not illicit! A service cannot discriminate on price across Europe – competing services of course can offer different prices – even for the same content.

- As an aside, in my opinion some of the earlier judgments were just plain wrong on whether the Nova signal containing English Premiership football was from the United Kingdom or Greece. It was a Greek service and a Greek programme – not only as a fact as it was uploaded from Greece, but it was a licensed service – licensed by the FAPL, in effect legally licensed by the Claimants themselves.

- And talking of asides, don’t get too waylaid by whether or not there is a ‘copyright’ in a football match. This is all about competition law and the common market. That said, whatever we think about the definition of protected works in the UK, and even if Infopaq means that its all to do with an author’s intellectual creation now, live sport cannot be a ‘work’ or qualify for copyright protection as a work. That is the law now and even accepting that football can be like ballet, I doubt if even Infopaq can be stretched to cover live sport. That said, at one recent seminar on Murphy a very amusing quip came from the audience that surely a ‘fixed’ cricket match must have a script (hehe!). And even if logos and national anthems can be protected by copyright law, does it matter? Not really, no.

- Copyright MIGHT protect the FAPL though - for the protected elements of any programme: I am not convinced Karen Murphy is safe to show the NOVA feed in public as the ECJ said that this is communicating the public and a pub screening would be an unlawful, profit-making communication to the public of copyright works it would not have been taken into account or considered by the authors of the protected works. She can own the decoder and buy the NOVA service for her private use. But enough of copyright, We need to look at the bigger picture!

- I am not sure Sky have been damaged at all, except perhaps in the short term. In fact they may be quite happy! Sky have the potential to do rather well out of this judgment in the long term. Firstly they can insist that all those expats Brits in Spain and Portugal PAY for their decoders and PAY for the Sky service – and they might well end up as the sole European FAPL licensee – for more on that see below.

- So what should the FAPL do? Well in the short term they may well have to re-negotiate their existing licences with Sky and other broadcasters across Europe as these agreements have been ruled anti-competitive if they have the effect of partitioning the internal market: Clauses contained in those agreements which relate to territorial exclusivity cannot now be enforced or relied upon.

- Exclusive broadcast licences based on a language (German, Greek, English) remain a possibility as does the possibility of limiting a broadcast licence to non-commercial (eg private home) use only. Whether the latter is practical remains to be seen.

- But laws meant to regulate a market often end up fitting the ‘law of unintended consequences’ model. Whilst some commentators see the decision as a win for the consumer, resulting in more competition which usually results in more choice and cheaper prices for consumers, I am not so sure.

- As the UK is by far the most important economic driver, surely the FAPL should / could licence JUST Sky – who can then offer the (same priced) service to consumers across Europe – setting whatever price they feel consumers can bear as a pan-European monopoly. The ECJ accepted that “European Union competition law does not, in principle, preclude a right holder from granting to a sole licensee the exclusive right to broadcast protected subject-matter by satellite, during a specified period, from a single Member State of broadcast or from a number of Member States of broadcast”. And I’m not sure who else could compete with Sky who have very deep pockets for English football rights! But I have no idea what EU regulators might think of this!!

- A single license would also allow the FAPL to control the broadcast of live fooball matches in England - a stated core concern as the FAPL need to protect the revenues from the paying audience for live football matches. And they need a new system and it may be one where nobody in Europe gets to see live matches from the Premiership!

- It won’t stop at TV! Neelie Kroes, previously the EU Competition Commissioner and now the Commissioner for the Digital Agenda said this about music and entertainment: “Too many barriers still block the free flow of online services and entertainment across national borders. The Digital Agenda will update EU Single Market rules for the digital era. The aims are to boost the music download business, establish a single area for online payments, and further protect EU consumers in cyberspace. She told the Guardian “"If I can buy a music CD online from a company in the Netherlands and have it posted to me here in Belgium, why can't I buy a digital download from the same company? If I can watch my local team's football matches using online pay-per-view in one member state, why not in 27? This situation does not make much sense to the man on the street. To be honest, it is not a situation that makes much sense to me. And we need to fix it".

- Unless a valid justification for partitioning the single market can be found, new business models will have to be adopted in Europe and many existing licensing arrangements may simply be held invalid as they be contrary to European competition law. I suspect this applies in particular to the pan-European satellite broadcasts and the internet. Is there any future in pan-European internet geo-filtering now? I suspect the answer is 'no'.

- The full effect of the case will become clear when the High Court gives its judgment applying the ECJ's ruling to the facts of the case.

- Of course Greece may have the final word if the EU doesn't sort out the current debt crisis ...... !!!


Tuesday 25 October 2011

BLACA & the BCC have a joint meeting on Tuesday 25th October looking at the communication to the public right in the light of the ECJ decision. This will be a panel discussion led by Professor Paul Torremans with Ted Shapiro (Senior Vice President, General Counsel Motion Picture Association, Brussels) and Jenine Hulsmann (Partner, Clifford Chance) contributing as panellists: VENUE: Reed Smith, The Broadgate Tower 20 Primrose Street EC2A 2RS: 17.45 signing in - 18.00-20.00 pm panel discussion. If you wish to attend you MUST register in advance by emailing emma.rumens@blplaw.com or by telephone on: 020 3400 4983.



Karen Murphy v Media Protection Services Ltd / Football Association Premier League Ltd v QC Leisure and others Joined Cases C-403/08 and 429/08 http://www.bailii.org/eu/cases/EUECJ/2011/C42908.html

Directive 89/552/EEC - "Television Without Frontiers"
The Directive aims are to ensure the free movement of broadcasting services within the internal market and at the same time to preserve certain public interest objectives, such as cultural diversity, the right of reply, consumer protection and the protection of minors. It is also intended to promote the distribution and production of European audiovisual programmes, for example by ensuring that they are given a majority position in television channels' programme schedules. The Directive establishes the principle that Member States must ensure freedom of reception and that they may not restrict retransmission on their territory of television programmes from other Member States. They may, however, suspend retransmission of television programmes which infringe the Directive's provisions on the protection of minors.

C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16
The Court emphasised that the author’s right to authorise or prohibit reproduction applies to a "work", i.e. the author’s own intellectual creation - "the expression of the intellectual creation of their author"

Coditel SA and others v Ciné-Vog Films SA (No 1) [1980] ECR 881 62/79 and Coditel SA and others v Ciné-Vog Films SA (No 2) 262/81 [1982] ECR 3381
This case established that exclusive national licences of broadcasting or cable rights in films were not of themselves inimical to EU rules on free movement and anti-competitive agreements with the ECJ saying “The provisions of the Treaty relating to the freedom to provide services do not preclude an assignee of the performing rights in a cinematographic film in a Member state from relying upon his right to prohibit the exhibition of the film in that State without his authority, by means of a cable diffusion if the film so exhibited is picked up and transmitted after being broadcast in another Member State by a third party with the consent of the original copyright owner”