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.

Subject-matter categorisation under EU copyright: a poll

Surely thinking who owns the copyright in this pic
(but is it sufficiently original?) ...
From L to R: Prof Peifer, Eleonora, Jeremy
and the legendary Adolf Dietz

I have just returned from a great trip to beautiful and sunny Munich, where I felt somehow at home and also attended the 4th JIPLP/GRUR Int Joint Seminar, which this time was devoted to discussing "The different notions of copyright-protected work in Europe" [see JIPLP coverage here].

As readers may imagine, among other things, the various speakers reviewed the post-Infopaq [here] string of cases, notably Case C-393/09 BSA [here], Joined Cases C-403/08 and C-429/08 FAPL [here], Case C-145/10 Painer [here], and Case C-406/10 SAS [here]. 

I presented on the UK situation, and concluded that in light of recent EU copyright developments [or, rather, the understanding that the Court of Justice of the European Union (CJEU) has of EU copyright] it is arguable that closed systems of subject-matter categorisation may no longer be compliant with EU law. 

This is the case of the UK, where the relevant provision is s.1(1) of the Copyright Designs and Patents Act 1988, which so states: "Copyright is a property right which subsists ... in the following descriptions of work— (a) original literary, dramatic, musical or artistic works, (b) sound recordings, films or broadcasts, and (c) the typographical arrangement of published editions."

Florence ...

As Cornish, Llewlyn and Aplin explain in the latest edition of their IP textbook, this means that creative intellectual activity must produce "the right kind of work". 

The result? There have been instances when highly creative unconventional works, such as the assembly of a scene or a Stormtrooper helmet, were not found eligible for copyright protection because they could not be pigeon-holed within any of the eight categories of works that UK law protects.

Having said this, it would now seem that compliance with EU law requires adoption of open-ended subject-matter categorisations, as is already the case under, say, French, German and Italian laws. 

This follows especially from the CJEU decisions in Infopaq [para 35], BSA [paras 45-46], FAPL [para 97], and Painer [para 87]. The most explicit statement is probably the one that the CJEU made in BSA:

"[C]opyright within the meaning of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author’s own intellectual creation ... Consequently, the graphic user interface can, as a work, be protected by copyright if it is its author’s own intellectual creation."

... and Munich (the Munich one seems to
have longer legs)

Mr Justice Arnold in his 2013 decision in SAS v WPL also conceded [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. Nevertheless, it remains clear that the putative copyright work must be a literary or artistic work within the meaning of Article 2(1) of the Berne Convention ... While the definition of "literary and artistic works" in Article 2(1) is expansive and open-ended, it is not unlimited. For example, it is conventionally understood not to include sound recordings or broadcasts".

However, there were eminent speakers who did not agree with this conclusion and argued that such interpretation is way too far-reaching. 

This is why The 1709 Blog has decided to launch a poll asking its enthusiastic readers to answer the following question:

DO YOU THINK THAT CLOSED SUBJECT-MATTER SYSTEMS ARE NO LONGER ACCEPTABLE UNDER EU COPYRIGHT?

You can vote by hitting your preferred option on the right hand side of the 1709 Blog's sidebar poll. You have time until Sunday 6 April to let us know what you think!