Originality in European Union Copyright Law

AuthorEugene Lau
PositionUniversity of Southampton
[2015] Southampton Student Law Review Vol.5
Originality in European Union Copyright Law
Eugene Lau
University of Southampton
This essay concerns the harmonisation of the originality requirement for copyright
protection in the European Union (EU) and its impact on United Kingdom (UK)
copyright law. The issue will be approached from the interpretation of EU directives
by the Court of Justice of the EU (CJEU) in its case law, and the application in UK
case law, as well as reference to relevant academic journals and textbooks. First, the
Infopaq,320 and Meltwater decisions will be discussed321 ; secondly, the approach of
the English Court of Appeal to the CJEU understanding of originality, in Meltwater,
will be reviewed; thirdly, the subsequent decision in Temple Island Collections is
considered and how it crystallises the UK judiciary’s understanding of originality, in
light of the EU approach322; fourthly, the role of the Court of Justice (CJ) in copyright
harmonisation will be discussed in terms of the relevant cases and academic
commentary. This contribution holds the view that the decisions of the CJEU in
Infopaq, and its progeny have affected the traditional UK standard of originality.
Originality and the Infopaq/Meltwater Decisions
riginality is a crucial concept in copyright regimes, and “forms part of the
underlying justification for the statutory system of copyright protection for
authors”.323 Yet it is a concept that is inherently vague, and one commentator
320 Judgment in Infopaq International A/S v Danske Dagblades Forening, C-5/08, EU:C:2009:465.
321 Newspaper Licensing Agency Ltd v Meltwater Holding BV [2010] EWHC 3099 (Ch); Newspaper
Licensing Agency Ltd and others v Meltwater Holding BV and others [2011] EWCA Civ 890
322 Temple Island Collections v New English Teas Ltd [2012] EWPCC 1.
323 Commission, Commission Staff Working Paper on the review of the EC legal framework in the
field of copyright and related rightsSEC (2004) 995, 13.

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