Skill: Originality and Concept of Work in European Copyright (CJEU)

Purpose

To build a methodical analysis of the question whether a concrete object (text, photograph, software, database, utilitarian article, sound recording, design, …) is protected by copyright under EU law, based on the case law of the Court of Justice of the European Union. The skill produces a developed argumentation from one of two positions:

• Pro-rightsholder — argue why the object qualifies as a work and is original
• Pro-alleged-infringer — argue why the object does not qualify as a work or is not original

Version 1.0 — first public release. Integrates the EU statutory harmonization framework for originality: verbatim citations of the four directive provisions that explicitly address originality:

• Art. 1(3) Directive 2009/24/EC (computer programs — "author's own intellectual creation" + "no other criteria")
• Art. 3(1) Directive 96/9/EC (databases — "author's own intellectual creation" by "selection or arrangement" + "no other criteria")
• Art. 6 Directive 2006/116/EC (photographs — "author's own intellectual creation" + "no other criteria" + optional protection of "other photographs")
• Art. 14 Directive (EU) 2019/790 (DSM) (works of visual art in the public domain — anti-reviving regime)

These provisions constitute the statutory floor of the Cofemel two-step test. The common "no other criteria shall be applied" clause in three of the four provisions is the doctrinal basis for the Cofemel rule (C-683/17, paragraph 29) that Member States may not impose additional requirements. The skill makes the doctrinal connection between primary EU law and CJEU case law explicit in a dedicated section "The EU harmonization framework for originality" in 01-originality-test.md. Verbatim texts are also included in the relevant sectoral modules (02-photography.md, 03-software.md, 04-databases.md, 07-derivative-works.md).

The doctrinal core consists of fifteen key CJEU judgments and one footnote judgment (Top System): Infopaq (C-5/08), Painer (C-145/10), BSA (C-393/09), FAPL (C-403/08 & C-429/08), Football Dataco (C-604/10), SAS Institute (C-406/10), Levola Hengelo (C-310/17), Cofemel (C-683/17), Brompton (C-833/18), Funke Medien (C-469/17), Renckhoff (C-161/17), Sony/Datel (C-159/23), Mio/Konektra (C-580/23 + C-795/23), Călinescu/FNSA (C-649/23) and Nintendo/PC Box (C-355/12), with Top System (C-13/20) as a footnote mention.