CJEU rules that derivative works enjoy copyright protection if they are … original

Article 2(3) of the Berne Convention mandates the copyright protection of derivative works like “translations, adaptations, arrangements of music and other alterations of a literary or artistic work” upon them being sufficiently original. It follows that, under international law, a derivative work enjoys copyright protection if it is sufficiently original.

Does the same apply in EU copyright law? Unsurprisingly, yes.

This is what the Court of Justice of the European Union (CJEU) held in this week’s decision in Institutul G. Călinescu, C-649/23, a referral from Romania that The IPKat has closely followed over time [here and here].

The judgment mirrors the key tenets of Advocate General (AG) Spielmann’s earlier Opinion [here]. So, if you liked that, you’ll like the CJEU judgment too. And vice versa, of course.

Background

By way of recap, the Romanian case relates to Dan Slușanschi’s critical edition of a book written in Latin by Prince Dimitrie Cantemir at the beginning of the 19th century (thus no longer protected by copyright), and the unauthorized incorporation thereof in a book published in 2015 by the Romanian Academy/National Foundation for Science and Art.

The key issue in the pending appeal before the High Court of Cassation and Justice is the copyright status of Slușanschi’s work. The defendants argue that in ‘reconstructing’ the text to reflect Cantemir’s original intentions as closely as possible, Slușanschi did not exercise the requisite freedom and creativity to express his own personality.

The Court of Cassation referred the following question to the CJEU:

Must Article 2(a) of Directive 2001/29/EC be interpreted as meaning that a critical edition of a work, the purpose of which is to produce an authoritative version of the text of an original work, by consulting the manuscript, accompanied by comments and the requisite critical apparatus, may be regarded as a work protected by copyright?

Judgment

The CJEU began by recalling the autonomous nature of the concept of ‘work’ and that originality is a “both necessary and sufficient” condition for copyright protection. The Court emphasized that determining whether “the subject matter in question reflects the personality of its author, by expressing his or her free and creative choices, constitutes a decisive factor of the concept of ‘originality’ and, consequently, of the protection of that subject matter by copyright in EU law.”

In sum, as AG Spielmann had also suggested (though by offering more extensive guidance than what the CJEU judgment does), the referring court must determine if Slușanschi was able to make free and creative choices that were the expression of his personality. While “the grammatical, lexical, literary and stylistic choices made by the author of a critical edition” may be technical choices and, therefore, unable to confer originality, “the composition of the critical edition in question, the structuring of the edition concerned, the form given to it and the arrangement of the original text in relation to the comments and critical apparatus” might reflect the author’s personality.

Admittedly, Slușanschi’s goal was to reconstruct the initial text and, thus, be as close as possible to the intention of Dimitrie Cantemir. However, Slușanschi added comments and critical apparatus explaining his corrections, word replacements and additions. He could have in fact made free and creative choices, which is nevertheless for the referring court to assess.

As regards the scope of protection of any potential copyright, this would only extend to Slușanschi’s original parts and certainly not to the parts authored by Dimitrie Cantemir or parts by Slușanschi that are not original.

Comment

As mentioned, the judgment broadly aligns with AG Spielmann’s Opinion.

Like the AG, the CJEU was right to note that protecting a derivative work does not mean eroding or contradicting the notion of ‘public domain’, as the Legal Service of the European Commission had instead argued.

The IPKat's own Puss in Boots

Importantly (and unsurprisingly), the protection of derivative works is limited to the original contribution of their authors and is separate from and independent of the copyright status of the initial work and/or that of other derivative works. If one wishes to make a couple of perhaps less erudite examples than what is at issue before the Romanian court: Perrault’s Puss in Boots is in the public domain, but Shrek’s own Puss in Boots is not; Louisa May Alcott’s Little Women is in the public domain, but Greta Gerwig’s own adaptation is not; etc.

That said, as I noted in my comment on the AG Opinion, I remain unconvinced that an effort that consists of reconstructing someone else’s work and is thus aimed at being as close as possible to the ‘missing’ parts may be regarded as original and such as to display one’s own personality. In this sense, I think that this is a technical contribution that should be treated like, say, military reports, which the CJEU expressly mentioned as an example of unprotected work (they were at the centre of Funke Medien).

Finally, it may be relevant to note that the decision does not reference Mio/konektra. That may be due to a number of reasons, and the primary one might be that CJEU judgments are usually finalized several weeks before their release date, to allow enough time for language translations.

In any event, the Institutul G. Călinescu decision does not say anything regarding originality and copyright subsistence that contradicts Mio/konektra. On the point of infringement (tackled at para 67), the Court does however overlook to mention recognizability, which did play a key role in the Mio/konektra reasoning [here]. Still, since Institutul G. Călinescu expressly addresses subsistence rather than infringement (as per the referred question), it is too early to conclude that the CJEU is shifting back to an originality‑only infringement test. So, we will need to wait and see.