As discussed below, this Kat suspects that in Painer the Court also chose to answer a question it was not asked: just what did it mean by its earlier Infopaq decision - did it harmonise the level of creativity for all copyright works or not? Recall that the UK Court of Appeal held in NLA v Meltwater that Infopaq had no effect on the UK's traditional and minimal requirement of originality for copyright works.
|The six German and Austrian newspaper titles |
which published either Ms Painer's photos or
simulated photo-fits created from those photos,
“it is important to point out that the Court has already decided, in [Infopaq], paragraph 35, 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.”
|Crouching down is strong evidence that a photographer |
is exercising creative freedom deserving of copyright.
Choosing to use a tripod clinches the deal.
[Photo: Michael Henderson]
Starting in paragraph 87 we see the Court noting that it had "already decided, in [Infopaq], paragraph 35, 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". The Court then immediately explains what this phrase means:
88 As stated in recital 17 in the preamble to Directive 93/98, an intellectual creation is an author’s own if it reflects the author’s personality. [emphasis added]89 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 […].90 As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production…
Although the Court [in Infopaq] refers to an 'intellectual creation' it does so in the context of paragraph 35 which clearly relates such creation to the question of origin not novelty or merit. Accordingly, I do not understand the decision of the European Court of Justice in Infopaq to have qualified the long standing test” [i.e. the very low originality standard established by University of London Press and by Ladbroke v William Hill].
|Self-criticism -- and a wholly favourable review|
|Public security poster, Victor Keppler, 1944|
|A good alternative to challenging a Court's |
jurisdiction is simply to find a cunning spot to
hide out until the other side loses interest.