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Latreille, Antoine --- "From Idea to Fixation: A View of Protected Works" [2009] ELECD 165; in Derclaye, Estelle (ed), "Research Handbook on the Future of EU Copyright" (Edward Elgar Publishing, 2009)

Book Title: Research Handbook on the Future of EU Copyright

Editor(s): Derclaye, Estelle

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847203922

Section: Chapter 6

Section Title: From Idea to Fixation: A View of Protected Works

Author(s): Latreille, Antoine

Number of pages: 15

Extract:

5 The requirement of originality
Ramón Casas Vallés



1. Introduction
The requirement of originality is common in copyright. Overarching, sine qua
non, essence of copyright, touchstone, cornerstone etc. these are terms often
used by specialists. It is understandable, originality being the criterion or
concept that normally defines the borders of this institution, both internally (to
distinguish copyright from neighbouring rights ­ where admitted) and exter-
nally (to distinguish it from other forms of protection ­ proprietary or not ­ of
intangible goods). It is also used to establish the degree of protection, albeit
this may cause some problems to the extent that it implies fragmenting a
regime which is theoretically envisioned as unitary, hence without granting
more or fewer rights depending on the degree of originality. In any case, both
the law and the case law agree to grant it a decisive role. Originality is the
evidence and materialization of authorship and what justifies the granting of
copyright. Paraphrasing Plato's Academy motto `Let no one ignorant of geom-
etry enter here', the threshold of Copyright's citadel could read: `Let nothing
non-original enter here' . . . although originality, like geometry, can be ulti-
mately variable.
The central role assigned to the requirement of originality does not corre-
spond to the doubts it generates. This is a striking and uncomfortable issue. On
the other hand, courts have been relatively at ease when dealing with this
requirement, under the interpretative latitude afforded by imprecise legal
terms. For judges ­ and others ­ the difficulty is ...