Quality, Merit, Aesthetics and Purpose: An Inquiry into EU Copyright Law's Eschewal of Other Criteria than Originality

Revue Internationale du Droit d’Auteur (RIDA), no. 236 (April 2013), pp. 100-295

Amsterdam Law School Research Paper No. 2013-51

Institute for Information Law Research Paper No. 2013-03

40 Pages Posted: 16 Sep 2013

See all articles by Stef van Gompel

Stef van Gompel

University of Amsterdam - Institute for Information Law (IViR)

Erlend Lavik

University of Bergen

Date Written: September 16, 2013

Abstract

This article examines the rule that no other criteria than originality shall be applied to determine the eligibility for protection of works, as contained in a few EU Directives on copyright (i.e. the Computer Programs Directive, the Term Directive and the Database Directive). While aimed to preclude criteria such as quality, merit, aesthetics and purpose from the subject-matter definition of copyright, the legal significance and practical implications of this rule is not entirely clear. Analysing the legislative history of the ‘no other criteria’-clause in EU copyright law and its equivalent in the national laws of four EU Member States (i.e. France, Germany, the Netherlands and the United Kingdom), the article observes that the objective of the rule is to prevent the grant or refusal of copyright by the courts from being dependent on subjective evaluative judgments about a work’s intrinsic value or worth. Judges are not supposed to assess whether a work aesthetically or commercially stands out, but only need to determine whether it meets the originality threshold. In practice, however, while the courts practically always refrain from using the lack of success, merit or quality as an argument to withhold copyright from a creation, they do not necessarily ignore a work’s success, merit or quality when granting protection to it. Moreover, the article finds that genres and categories of works are not always definable on formal properties alone and that judges sometimes cannot escape making qualitative or aesthetic considerations when determining the eligibility for protection of low original works. The article concludes that, since judges sometimes cannot make a clear distinction between protectable and non-protectable subject-matter on the basis of the originality criterion alone, copyright law’s concept of originality would fail to adequately serve its discriminatory function, should the ‘no other criteria’-clause always be taken literally.

Keywords: copyright, originality, subject-matter, quality, merit, aesthetics, purpose, European Union

JEL Classification: O34

Suggested Citation

Gompel, Stef van and Lavik, Erlend, Quality, Merit, Aesthetics and Purpose: An Inquiry into EU Copyright Law's Eschewal of Other Criteria than Originality (September 16, 2013). Revue Internationale du Droit d’Auteur (RIDA), no. 236 (April 2013), pp. 100-295; Amsterdam Law School Research Paper No. 2013-51; Institute for Information Law Research Paper No. 2013-03. Available at SSRN: https://ssrn.com/abstract=2326425

Stef van Gompel (Contact Author)

University of Amsterdam - Institute for Information Law (IViR) ( email )

Kloveniersburgwal 48
Amsterdam, 1012 CX
Netherlands

Erlend Lavik

University of Bergen ( email )

Muséplassen 1
N-5008 Bergen, +47 55 58
Norway

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