AG Spielmann advises CJEU to rule that a derivative work may be original and protection could also stem from efforts to reconstruct missing parts in someone else’s work
AG Spielmann advises CJEU to rule that a derivative work may be original and protection could also stem from efforts to reconstruct missing parts in someone else’s work
International copyright law (Article 2(3) of the Berne Convention) mandates the protection of “[t]ranslations, adaptations, arrangements of music and other alterations of a literary or artistic work” as “original works without prejudice to the copyright in the original work.”
So: when is a derivative work original and, thus, protected by copyright on its own right?
This, in a nutshell, is the question at the centre of the Romanian referral in Institutul G. Călinescu, C-649/23. As I wrote when the referral was made, this is the first opportunity that the CJEU has been given to tackle derivative works (in the background proceedings: a critical edition of a Latin text in the public domain based on a manuscript discovered at Harvard in 1984) from the perspective of copyright subsistence rather than infringement – as it instead did, e.g., in Painer (photo-fit), Deckmyn (parody), as well as (from the perspective of incorporation) Pelham I (music sampling) and Renckhoff (downloading and use of photograph).
This morning, Advocate General Spielmann issued his Opinion (not yet available in English), advising the CJEU to rule (unsurprisingly) that a derivative work is protected by copyright subject to satisfying the originality requirement.
Let’s see in greater detail how the AG reasoned.
The AG Opinion
First of all, the AG rejected the proposal of the European Commission’s Legal Service to reformulate the referred question as being relevant, not to Article 2 of the InfoSoc Directive, but rather to Article 5 of the Term Directive. Among the reasons given, there is an obvious one: Romania did not take advantage of the option afforded by Article 5, with the result that this provision is of no relevance to the background national proceedings 😊 Furthermore, even if a Member State had taken advantage of this option, that would not preclude the possibility of copyright protection, subject to fulfilling the relevant requirements thereunder.
Following this, the AG delved into the notion of ‘work’, finding that it encompasses both primary and secondary (derivative) works, including in principle a work like the one at issue in the Romanian litigation.
Hence, the “issue” is not whether a derivative work is a work – obviously, it is – but rather whether it satisfies the originality requirement, in the sense of being the result of both free and creative choices on the side of its author, which are such as to reflect the author’s own personality. As AG Szpunar also recently recalled in his Opinion in Mio/konektra [IPKat here], the freedom and creativity of the choices made must be intended as a set of cumulative requirements.
Until this point, the Opinion is rather unremarkable.
The interesting bit starts at paragraph 62, when the AG considers that an attempt to reconstruct the complete text of a third-party work in a way that is as close as possible to that third-party’s intention may be an expression of creativity, and not a mere research effort (insofar as the choices made are not purely technical):
When the author of the critical edition draws not only on their own craft and knowledge of the author, the language, the period and the original work, but also on their own imagination, intuition and sensitivity to invent or reinvent lost or incomprehensible elements, while trying to remain faithful to the spirit of the original work, they carry out a creative activity and impress their own personality on the work of others, thus creating a derivative work.
Similarly, critical notes and explanations, like the composition of the critical edition itself, are also elements that may confer originality on the derivative work in question.
So, in a nutshell, the answer to question of copyright subsistence is “it depends”. On what though? According to the AG, account should be taken of the derivative work’s author creative process, the type of work in question, and the specific competences and skills of comparable researchers. All these elements would help separate autonomous (and original) works from mere scientific re-editions of public domain information.
Furthermore, copyright could subsist in a critical edition considered in its entirety: there may be no need to distinguish between the parts that conform to the original, third-party work and the parts that have been created by the author of the critical edition, said the AG.
In any event, contrary to the concerns expressed by the European Commission, holding that a critical edition may enjoy a new copyright does not entail eroding the public domain and bringing items that appeared to have fallen there back into a monolithic, proprietary logic: that is why, noted the AG, a fair balance mandate is present under copyright law.
Comment
One banal thing to note at the outset is that copyright minimalists and public domain crusaders will most likely hate – not be simply critical of – this Opinion.
Yet, the reasoning of AG Spielmann is premised on a basic consideration and truth: the possibility of protection of works – whether primary or secondary/derivative – subject to satisfying a requirement of originality and without discrimination between more and less deserving works. As noted, this is an incontestable fact. Insofar as EU copyright is concerned, it has become even more apparent over the past several years and the string of referrals and decisions concerning works of applied art: little by little, the CJEU has made it clear that these works are no less deserving of protection than other works.
If the above is now established, why should the contrary be true of derivative works, also considering that the vast majority of the things we deem original are inherently derivative? After all, the death of the (Romantic) author was proclaimed a while ago.
Nevertheless, contrary to the AG’s conclusions, I am not convinced that there can be imagination and creativity in trying to be as close as possible to someone else. While imitation may be the sincerest form of flattery, in copyright law that might and should not be enough.
I struggle to see how, in a situation like the one considered by the AG, the choices made by the author of the derivative work could be truly regarded as both free and creative if the goal of the classicist in question was to reconstruct the missing bits in someone else's text. Instead, I would imagine such choices to be closer to choices that lack freedom or are of a technical kind. Either way: choices that are not suitable to warrant a finding of originality.
Opining otherwise would have two dangerous consequences:
- First, it could flatten the EU originality criterion onto a standard of skill, labour and effort. Yet, the CJEU expressly rejected the appropriateness of such an approach as early as in the Football Dataco decision. Incidentally, at the national level (in the UK, but also in France) such an understanding of originality allowed Dr Sawkins (well before Infopaq and its progeny) to succeed in his copyright claim relating to his reconstruction work of a baroque music score.
- Second, it would greatly reduce the scope of application of provisions like the one contained in Article 14 of the DSM Directive [IPKat here] up to the point of their irrelevance.
In all of this, one might also wonder why military reports (at the centre of Funke Medien), which the AG cited as an example of unprotected work, would be after all less deserving of protection than a work in which the effort made was merely to reconstrue another reality, one that appeared lost forever.
Let’s now wait and see what the CJEU thinks and how it decides. As usual: stay tuned!
[Originally published on The IPKat on 26 June 2025]