Closed Subject-Matter Systems are No Longer Compatible with EU Copyright

Abstract

So far legislative harmonisation of the copyright laws of EU Member States has left general subject-matter categorisation untouched. Yet recent case law of the Court of Justice of the European Union (CJEU) suggests that under EU law copyright protection should arise any time a work is its author’s own intellectual creation. This questions the compatibility of enumerated systems like the UK one with EU law.

After recalling that EU legislation does not provide a general definition of ‘work’, this contribution reviews a number of CJEU decisions and concludes that: first, the Court has de facto harmonised the notion of ‘work’ under Directive 2001/29/EC (the ‘InfoSoc Directive’); secondly, in relevant instances this piece of EU legislation is bound to displace ad hoc directives, like Directive 98/71/EC (the ‘Design Directive’) and Directive 2009/24/EC (the ‘Software Directive’); thirdly, automatic protection under the InfoSoc Directive means – among other things – that this might have stronger harmonisation effects than what has been understood so far. The latter appears confirmed by the Court’s increasing reliance on the internal market objective, and diminished tolerance for diverging approaches at the national level in areas affected by the InfoSoc Directive. The article then reviews UK position in relation to subject-matter categorisation and the different legal treatment of the various categories of works. It discusses recent judicial dicta that may pave the way to a new approach to subject-matter categorisation in this Member State, possibly following a specific reference for a preliminary ruling that would ask the CJEU to clarify – once and for all – whether closed systems of copyright-protected works are (still) compatible with EU law.

Keywords: EU copyright, UK copyright, subject-matter, Infopaq, BSA, Flos, FAPL, Nintendo, Pinckney, Hi Hotel, WPL v SAS, Abraham Moon, InfoSoc Directive