|Silke: "We still don't have
100% harmonisation, if
we have it at all" ..."
First to speak was Dr Silke von Lewinski, who addressed the position of protected subject-matter under the European Union's laws and judicial rulings. Silke reviewed the provisions of the Software Directive, the Database Directive and the Term Protection Directive which addressed specific cases in which protection was to be accorded to "the author's own intellectual creation", on what was initially been assumed by all (especially in the light of Recital 16 to the Term Protection Directive) to be the basis that in all other situations the definition of protectable subject matter
Dr Karl-Nikolaus Peifer then reviewed the concept of individuality/originality in German law. Unlike "the author's own intellectual creation", Germany requires "personal intellectual creation". Evidently these terms do not match. Karl-Nikolaus looked at the term "original" in other jurisdictions: depending on the country, it was interpreted as "personal impression" or "not copied". Case C-145/10 Painer appears to support the requirement of there being a need for a "personal touch"; AG Mengozzi in Case C-604/10 Football Dataco addressed this contrast, effectively making a choice in favour of the (continental) personal input approach over the "not-copied" approach.
Said Karl-Nikolaus, there were five tests to be satisfied before a work was protected in German law: 'fixation' (a better word might be "expression"), 'intellectual content', 'creation' (meaning something that does not exist in nature and is not an objet trouve), 'personal input' and 'level of creativity'. He sought to explain each of these and to pin them, where possible, to CJEU. Karl-Nikolaus then took the example of a Mondrian painting: would every painter, seeking to achieve the same effect, reach the same solution? If so, there would be no personal level of originality in it. He concluded that the German law fits well with the EU standards, though conceptually "personal" may mean more than "own".
Next to speak was Professor Antoon Quaedvlieg, speaking on the position under Dutch law, addressing minimal originality and technical exclusion. His paradigm case was S&S v Esschert, Hoge Raad, 25 October 2013, involving an action for infringement of copyright in a fire basket (left). Three criteria in particular were cited: was there a "personal stamp"? Does the work have its "own original character", and is it not dictated by technical criteria? On this basis, the Dutch ruling on copyright protection for scents fits with Case C-145/10 Painer and is probably right -- unless the French are right when their Cour de Cassation say that a scent is a single application of a piece of know-how.
What is better, a unitary approach, recognising one set of criteria for protection, or a categorised one? Mr Justice Laddie favoured the former, while Sir Robin Jacob preferred the latter. Eleonora illustrated the problem by reference to two "works" -- the set from which an Oasis album cover shot was taken and the Star Wars Storm Troop helmet (which was not a "sculpture").
Following these presentations and a refreshing cup of coffee, a panel discussion ensued and a good time was had by all. JIPLP says "Thanks" to everyone concerned, and especially to our German hosts.