Copyright and Civil law countries’ “Author’s right” are usually presented as having opposite views on the access to protection. Copyright law, lists exhaustively the type of protectable works, which could explain that the concept of originality is interpreted in a more flexible way by the English or American jurisdictions. On the contrary, in French Author’s right law the list of protectable works is not exhaustive (Article L. 112-2 of the French intellectual property code); the French judge should therefore be much more demanding regarding originality.
However, this opposition is largely false as of today. The different concepts of originality have converged1. As regards the list of works, it does not have the same meaning in English law or American law. The American copyright has never considered the list of eight series of works as restrictive2. This position comes from the texts and the jurisprudence and is approved without reserve by the doctrine. The American copyright is however very demanding about the fixation of the work as shows, notably, a decision of the Court of Appeal of the 7th federal circuit of February 15th, 2011, refusing the protection of a garden3.
The solution is quite different in the British copyright as shows the famous decision “Creation Records” of 19974. Let us specify here that the English law of 1988 Copyright, Designs and Patents Act (CDPA) lists eight classes of protectable works: Literary, dramatic and musical works, Databases, Artistic works, Sound recordings and Films, Broadcasts, Cable programmes, Published editions. The category in which the work falls determines a specific legal regime: the application of exceptions (fair dealing, for example, does not apply for all the categories of works), the granting of a privilege… The categorization of the work has a real impact.
What was the subject of the decision “Creation Records” ? This case concerned the sleeve of the disk “Be here Now” of the band Oasis. For those who do not know this sleeve, the photography represents the musicians around a swimming pool in which there is a Rolls Royce, as well as a range of objects arranged next to the pool in a rather ill-assorted way: a clock without needle, a scooter, a huge calendar… This arrangement was imagined by one of the members of the group ( Noël Gallager) and reproduced by a photographer for the cover of the album. Even though the public could not access this photography session, fans were present as well as a photographer of the English newspaper The sun.
This photography has then been published in the newspaper, without the authorization of the copyright holders5, with, moreover, an offer of sale of the poster of this photography. The question brought to the judge was the following: Can this arrangement of artistic objects be considered as a work of art by the English law of 1988? The answer is negative. According to the judge, the scene did not fall in one of the eight categories of works. It could not be considered as an artistic work (as a sculpture, a collage) nor a dramatic work. However the record company, owner of the rights, won on the basis of breach of confidence6.
This decision, which was confirmed7, is in total contradiction with the current position of the Court of justice of the European Union. Indeed, the Court of justice requires8 the demonstration of an intellectual creation (and secondly of its originality: the freedom of creative choices) by the ones claiming the existence of a copyright.
The CJUE recognised the protection by copyright of a graphic interface but not the protection of a soccer game9. As for the “Creation Records” case, it does not make any doubt that the photography realized for this album would be considered as an intellectual creation today.
The CJUE jurisprudence seems to question the entirety of the categorization of works of art as established by the English law. This has been established clearly by judges (including by the CJEU)10. However, the English doctrine is much more reserved on this question11. Considering these case law hesitations and the current uncertain position of the English doctrine towards the position of the CJEU, it is recommended to demonstrate that, the creation for which we seek protection in London or in Belfast, belongs to one of the eight categories of works.
To be or not to be, it is better to be on the list, even if it will not be easy for some unusual creations12.
1 See one of the next news flash
2 The Copyright Act of 1976 aims in its article 102 eight classes of protectable works: the literary, musical, dramatic, choreographic, plastic, media, architectural works and the recordings of sounds.
3 Chapman Kelley v fusses. Chicago Park District (N 08-3701 and 08-3712) We can read in this decision that: " Although the planting material is tangible and can be perceived for more than a transitory duration, it is not stable or permanent enough to be called “fixed.” Seeds and plants in a garden are naturally in a state of perpetual change (…). The essence of a garden is its vitality, not its fixedness. It may endure from season to season, but its nature is one of dynamic change.". Author’s right legislations ignore largely this requirement of fixation. The restoration of a garden, to stay on this example, was considered as protectable. Paris Court of Appeal, 11 Feb. 2004, D. 2004. 1301, note S. Choisy.
4 Creation Records v. News Group Newspapers [1997] E.M.L.R. 444 Ch D
5 We shall leave aside the question of who could be considered as the creator of this work: Christmas Gallager himself, author of the arrangement of objects? Or the photographer?
6 The breach of confidence (which is a “torts” i.e. a specific offence) is the violation of an obligation of confidentiality There is a "Duty of confidence” every time a person receives an information that she knows she must consider as confidential. Here security measures surrounding the event easily let the public present think that the grip of photography was not authorized.
7 Nova Productions v Mazooma Games & Ors [2006] EWHC 24 (Ch), aff’d by [2007] EWCA Civ 219 about a video game.
8 C-393/09 Bezpečnostní softwarová asociace – Svaz softwarové ochrany CJEU 22 December 2010
9 C-604/10, Football Dataco v. Yahoo UK CJEU March 1st 2012
10 C-406/10 SAS Institute Inc. v. World Programming Ltd CJEU 2 May 2012
11 See in particular the developments dedicated to this question in the reference book of L. Bentley and B. Sherman " Intellectual property law " Oxford University Press 4 th Edition(Publishing) p. 61 and
12 A video game for example.
