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European Intellectual Property Review

2013

The "sweat of the brow" is not enough! - more than a blueprint of the
European copyright term "work"
Dr Christian Handig*
Subject: Intellectual property . Other related subjects: European Union.
Keywords: Copyright works; EU law; Harmonisation; Morality
Legislation:
Directive 2009/24 art.1
Directive 2006/116 art.6
Directive 96/9
Copyright, Designs and Patents Act 1988 (c.48)
Cases:
Painer v Standard Verlags GmbH (C-145/10) [2012] E.C.D.R. 6 (ECJ (3rd Chamber))
Football Association Premier League Ltd v QC Leisure (C-403/08) [2012] Bus. L.R. 1321; Times,
November 23, 2011 (ECJ (Grand Chamber))
*E.I.P.R. 334 In recent cases the CJEU clarified some aspects of the term "copyright work". Most
important is the fact that it has to be interpreted uniformly, despite its being used in several copyright
directives, of which only some contain a definition. A "copyright work", as an "own intellectual creation
of its author", should be stamped by the author’s "personal touch" by expressing his "free and creative
choices" in the production of a work. Thus the uniform interpretation throughout the EU of the term
"copyright work" means that products of "labour, skills or effort" lacking the author’s "personal touch"
will no longer receive copyright protection.

Introduction
It takes a "copyright work" to receive copyright protection; hence the meaning of the term "(copyright)
work" is of utmost importance. Given that fact and that the European Union established the first
copyright provisions more than two decades ago, it comes rather as a surprise that the first
substantial decisions on this issue were brought before the Court of Justice of the European Union
(CJEU) recently. Though late, a small bundle of decisions gave the CJEU the opportunity to do more
than just to lay a foundation in this field.

A single European level of harmonisation

On many occasions the CJEU stated that terms of the acquis communautaire have to be interpreted
as "autonomous and uniform" throughout the European Union.1 This is the cornerstone of the court’s
legal arsenal to promote harmonisation. The terms of the copyright directives are no exceptions,2 and
the CJEU clarified that by interpreting copyright terms like "communication to the public"3 or "fair
compensation".4
However, concerning the term "copyright work", things are not that straightforward, as there are
definitions only for three categories of works—namely computer programs,5 databases6 and
photographs.7 The definition of computer programs reads as follows: "A computer program shall be
protected if it is original in the sense that it is the author’s own intellectual creation."8 The very same
(Software) Directive also says: "No other criteria shall be applied to determine their eligibility for that
protection".9
The three above-mentioned kinds of works and their definition are laid down in three directives. While
the wording in these directives is not entirely identical, the remaining differences are insignificant.
Those can be attributed to the European legisprudence, which is not as accurate as it is in many
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national legal systems of the Member States.10 In later copyright directives11 the European legislators
did not even bother using the definition again.12
Many experts doubted that the term "copyright work" should be interpreted uniformly. Some of their
doubts were based on the fact that the European copyright law defined three categories of works, but
not others such as, for instance, books, films, paintings and architecture. *E.I.P.R. 335 13 Some
experts argued that in the later directives, there are no more definitions because the Member States
could not agree on an implantation to avoid a harmonisation.14
As these intentions did not enter the Recitals of the directives—in the author’s view—they will not
prevent a uniform harmonisation. Even if the CJEU took care of historical aspects as it interprets the
term—which it usually does not—there would be no point of contact. And a uniform harmonisation is
very likely, since in the decision Football Association Premier League (aka Murphy)15 the CJEU
clarified:
"[G]iven the requirements of unity of the European Union legal order and its coherence, the concepts
used by that body of directives must have the same meaning, unless the European Union legislature
has, in a specific legislative context, expressed a different intention." 16

International law
More than once, the CJEU has stated that a legal term "must, so far as possible, be interpreted in a
manner that is consistent with international law, in particular taking account of the Berne Convention
and the Copyright Treaty".17 But concerning the content of the term "copyright work", the international
treaties provide little information.
Unfortunately, the same holds true with the Berne Convention18: art.2 of the Berne Convention offers
barely more than a list of categories of works,19 e.g. books, choreographic works, maps and plans as
well as derivative works as translations and arrangements of music.20 Regarding the necessary
quality, art.2 of the Berne Convention reads: "The protection of this Convention shall not apply to
news of the day or to miscellaneous facts having the character of mere items of press information".21
Obviously, this is not sufficient—but there are no other rules determining the necessary level. This
leaves "precise contours of originality to the national determination".22 That range of interpretation
and—as well—sphere of influence is going to be significantly reduced since the CJEU is setting out
European standards.

"Free and creative choices"

In the Painer decision23 the court began to frame a concept of the standards of the European
copyright work. According to art.6 of the Term of Protection Directive24 a work has to be an "author’s
own intellectual creation". Thus the work has to "reflect [the author’s] personality",25 or should be
stamped by the author’s "personal touch".26 This could be achieved by "expressing his free and
creative choices in the production" of that work.27 As the court introduced this legal proposition, it
clarifies in detail what "free and creative choices" in the case of portrait photography mean:
"In the preparation phase, the photographer can choose the background, the subject’s pose and the
lighting. When taking a portrait photograph, he can choose the framing, the angle of view and the
atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a
variety of developing techniques the one he wishes to adopt or, where appropriate, use computer
software." 28
Therefore, in all three phases, an author has the possibility of several choices. This decision focused
on portrait photographs of kindergarten and pre-school children.29 In practice, the conditions leave
little scope for creative design: the parents (and grandparents) of the children want to buy only well-lit,
sharp portrait shots of their children, who should smile at the viewer (or at least look friendly). In order
to sell the photographs, it makes sense—from the perspective of the photographer—to fulfil these
requirements entirely. Anyhow, the remaining small scope for individual design is apparently enough
to create copyright works.30
As in most preliminary ruling procedures, the CJEU provided only the criteria and left it to the national
court to decide whether the facts of case fulfil the given criteria.31 Still, some questions are waiting for
preliminary rulings: e.g. whether a certain degree of originality is required—in other words: how much
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significance has to *E.I.P.R. 336 be attributed to the "creative" part of the choices?32 It is also not
evident if the mass of private photographs (e.g. holiday snapshots) are protected by copyright or not.
33

High premises
These "free and creative choices" set the European level of necessary originality for a copyright work.
Thus, for instance, the Austrian jurisdiction, granting copyright to "outstanding creations setting off
against mundane and commonplace products", does not seem to be in line with these new European
standards.34 German jurisdiction demands:

•
a personal creation;

•
an intellectual content;

•
a form which can be perceived through the senses; and

•
a minimum level of individuality.35

Notwithstanding that the wording is not identical to that of the European premises, they could be
interpreted accordingly.
One aspect within this area is the German way of dealing with works of applied art: for such works the
demanded level of individuality is higher than for other kinds of copyright works. This difference is
founded on the basis that works of applied art can be protected by design law, even if they are not
protected by copyright law.36 A. Dietz once put it pointedly: "Should any new designed pressure
cooker, any new designed bike, any screw with a special type of thread, any new designed shoes,
any new wheel chair be protected by copyright?"37 (It could be added that even under the Copyright,
Designs and Patents Act 1988 (CDPA 1988) an ordinary commercial suite of furniture might not
qualify as copyright work.)38
In the author’s view this does not comply with the decisions of the CJEU as it had not only rejected
discrimination of works of applied art in the field of copyright law,39 but held that there is also just one
level for a copyright work, as the term has to be interpreted "autonomous and uniform".

This is Europe’s "Feist"!

This UK level of necessary originality is—compared with the standards of other Member
States—rather low.40 Thus it is likely that a harmonised standard has to be higher. But the same holds
true for all categories of works, especially "tables or compilations", usually lacking originality. Such a
table—actually, it was a database—was put to the test in the Football Dataco case. This concerned
fixture lists of the English and Scottish football leagues, which are quite elaborate as they have taken
into account not only certain rules for fixture lists, but also all sorts of requests for fixed dates. In
short, they represent a piece of work—or of "labour, skills or effort" ("sweat of the brow").41 However,
this was not enough, as the CJEU decided that "the significant labour and skill required for setting up
that database cannot as such justify a copyright protection if they do not express any originality in the
selection or arrangement of the data which that database contains".42 For a copyright work something
is missing, as it takes "an intellectual creation if it reflects the personality of its author, which is the
case if the author was able to make free and creative choices in the production of the work".43 Unless
these criteria are fulfilled, copyright protection must not be granted (within the scope of the directives).
44
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It does not seem to be a coincidence that the United Kingdom’s jurisdiction was put to the test in a
database case, because in this field doubts—whether the provisions were in line with the Database
Directive —occurred as soon as the harmonisation took place.45
At this point it should be remembered the CJEU clarified that for all categories of works a modicum46
of originality is necessary. Thus this decision is likely to generate a similar effect on the jurisdiction in
the United *E.I.P.R. 337 Kingdom as the Feist 47 decision had in the United States,48 in which the US
Supreme Court rejected the "sweat of the brow" doctrine explicitly.
However, the standard for originality might not be very high: The CJEU ruled in the first Infopaq
International case49 that even an extract of 11 words might contain sufficient originality for copyright
protection.50 Given the small number of words, it should not be overlooked that the court only
articulated a possibility of copyright protection, but not a necessity.

No rules and therefore no games?

In the decision Football Association Premier League (Murphy) the CJEU ruled:
"Sporting events cannot be regarded as intellectual creations classifiable as works … That applies in
particular to football matches, which are subject to rules of the game, leaving no room for creative
freedom for the purposes of copyright." 51
It does not really come as a surprise that football games are not copyright works, as there is broad
consent about this.52 While this holds true for the result, it does hold true not for the argumentation:
most man-made works emerge from an environment of tradition, knowledge, or specifications of the
client sponsor. All these conditions are functionally similar to rules as they narrow the space for "free
and creative choices", too. Furthermore, in many instances even rules are applied; e.g. literary works
usually follow the rules of grammar and orthography. In order to develop the thought, a traditional
haiku,53 for instance, has not just a narrow frame of issues it deals with, but also a defined number of
17 morae 54 in three phrases of five, seven and five morae. In spite of these tight rules the outcome
is—at least in many cases—a copyright work. In the author’s humble opinion it is the artful interplay of
rule application and rule breaking that creates not only copyright work, but masterpieces.55
Thus it is more likely that one should draw from this issue of the case that sporting events are not
protected by European copyright law.56

Unprotectable or copyrightable?
In the case of separating unprotectable from copyrightable elements, the foremost international
provisions are art.2 of the WTC57 and art.9(2) of the TRIPS Agreement.58 As the EU is a contact
partner of both of these treaties,59 they both are part of the acquis communautaire of the EU. Hence,
in interpreting EU directives, the CJEU takes those provisions into consideration.60 Both treaties
stipulate that copyright protection extends to expressions but not to ideas, using almost identical
wording.61
This principle was inducted into the (European) Software Directive: "Logic, algorithms62 and
programming languages comprise ideas and principles, those ideas and principles are not protected
under this Directive."63 On this basis, the CJEU draw the conclusion that:
"[N]either the functionality of a computer program nor the programming language and the format of
data files used in a computer program … constitute a form of expression of that program and, as
such, are not protected by copyright." 64
The functionality is not protected in order to prevent a monopolisation of ideas, and thus "the
detriment of technological progress and industrial development".65 Algorithms and formulae are also
excluded from copyright protection:
"[B]ecause they are the equivalent of the words by which the poet or the novelist creates his work of
literature. However, the way in which all of these elements are arranged, like the style in which the
computer program is written, will be likely to reflect the author’s own intellectual creation and therefore
be eligible for protection. *E.I.P.R. 338 " 66
The idea (and "implementation tools" such as, e.g., algorithms and words) cannot always be so
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clearly distinguished from its expression—on the contrary, as many creative processes are
continuous developments. Within these processes there is no obvious fault line or border between the
idea and the final work. To decide whether a product has acquired protectability, the one and only
criterion is originality. It is uncertain whether the boundary laid down by the national jurisdictions
would meet the decisions of the CJEU. To put these national jurisdictions to the test might be
interesting for industries, particularly, those which were previously unsuccessful in obtaining copyright
protection for their cost-intensive products before their national courts, such as television formats67
and advertising concepts.68
The concept of originality is based on a plurality of options, where an author has the possibility of
selection, as the CJEU illustrated in the case of photography (in Painer); exactly the same is true for
computer programs. This complies with the intention of the European Commission, when it proposed
the Software Directive, pointing out that the main advantage of copyright protection is "that such
protection covers only the individual expression of the work and thus leaves other authors the desired
latitude to create similar or even identical programs provided that they refrain from copying".69
The concept of originality with its free and creative decisions is emphasised in the recent decisions of
the CJEU. If technical considerations, rules or constraints leave no room for freedom and choice, this
essential condition is not available, as a case concerning the creation of databases70 or the provision
of schedules for football matches71 demonstrated.
But there is another aspect: in the interests of third parties (e.g. other creative professionals and the
general public) ideas must not be monopolised. These interests are weighed against those of the right
holders. Also, this balancing of interests can—in the opinion of the author—utilise the concept of
originality though "free and creative choices": e.g. if there is just a small number of existing design
options, there is narrow space for "free and creative choices", as a consequence copyright protection
should be refused.72

Immoral and illegal works

Not very often, but from time to time the question occurs, how to deal with immoral works.73 One
possibility is to deny copyright for (grossly) immoral works.74
Actually, this is the case in some fields of intellectual property. For instance, on the ground of
principles of morality registration of national75 and Community76 trade marks has to be refused. The
same holds true for patents in national law77 and in the European Patent Convention.78 Therefore, it
could be assumed that principles of morality do matter when it comes to grant copyright protection,
too.
But even if morality should be decisive, the question arises as to which country’s morality should
prevail. In cases where a legal instrument does not refer to the Member States, it is very likely that the
CJEU will interpret a term uniformly throughout Europe. Besides, there are few examples where the
EU legislator has taken regional differences into account, e.g. in the Unfair Commercial Practices
Directive, where the directive is not applied on "legal requirements related to taste and decency which
vary widely among the Member States … Member States should accordingly be able to continue to
ban commercial practices in their territory …".79
However, from the Austrian and German viewpoint, immoral and even illegal works enjoy copyright
protection80 (even when same authors state that there should be limitations in exercising and
defending the rights in such cases).81 It has to be mentioned that these viewpoints consider only the
national laws.
Concerning the European provisions, from the author’s viewpoint the main difference between
copyright law and trade mark law is that trade mark law entitles the registration authority82 to decide in
every case whether a trade mark is immoral or not, whereas there is no such rule in (European)
copyright. Lacking any point of contact *E.I.P.R. 339 in the directive, it is rather unlikely that the
CJEU would deny copyright for immoral (or illegal) works. Such a denial might take place, e.g., in rare
cases of serious infringement of a right of the Charter of fundamental rights of the EU.

Consequences for the CDPA 1988

The European term has effects on Member States as well, on both the copyright law of the Member
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States and on their jurisprudence, including the CDPA 1988 and the national jurisdiction. Therefore
the question emerges whether they are still in line with the European copyright directives.
The required scrutiny should first of all focus on crucial terms, such as "copyright work", to decide
what falls under copyright protection.83
For the CDPA 1988 this is, for instance, more than doubtful for an element such as the preclusion of
works which cannot be filed into the categories of copyright works.84 By contrast, e.g. in Germany, the
list of the categories of copyright works is exemplary.85 As the term "work" is harmonised, the
harmonisation is likely to comprise the categories of copyright works, too. Consequently, a decision
whether a recipe86 can be a copyright work cannot vary within the Member States of the EU. This
leaves no space for differentiating between the Member States. Therefore it is likely that the
harmonised list of copyright works’ categories is not exhaustive.
Doubts also arise on the premise of the tangible form: the Berne Convention leaves it to the
contracting states whether the copyright protection requires that works "have been fixed in some
material form".87 Whereas most copyright laws do not demand such a fixation, CDPA 1988 88 does. As
it is also likely that this aspect is covered by a harmonisation, too, it is disputable whether the CDPA
1988 still can keep up such a fixation89 (although the practical impact would rather be limited).90
In the United Kingdom copyright is used as "a remedy against unfair competition",91 which "exists to
prevent others from taking unfair advantage of a person’s creative efforts".92 Thus, in the medium
term, the question will emerge whether to introduce an unfair competition law covering those fields
where copyright protection can no longer be obtained.93 A debate might not only take place at a
national level in Member States where there is no unfair competition law yet (like the United
Kingdom), but also at the European level. This is now more likely as the director general (DG)
responsible for the important Unfair Commercial Practices Directive94 has changed from DG
Consumer Protection to DG Justice. While the former responsible DG focused—unsurprisingly—on
consumer protection,95 not dealing with the protection of the competitor,96 the viewpoint of the DG
Justice might be broader and more integrative.97

Conclusions
Like many other legal areas, copyright is in a transitional phase as national legal systems are being
transformed to (partially) harmonise with the European one. Within this setting, the court, essentially,
functions as a catalyst accelerating this process. The crucial term "copyright work" is simply one
element in this context, and as its harmonisation has just begun, it is still fragmentary. Many aspects
of the term "copyright work" (as well as other terms) are still interpreted by continuing national
jurisdictions. Therefore further preliminary rulings will show whether the established law jurisdictions
are consistent with the CJEU’s viewpoint.
However, the harvest of the recent CJEU cases for the development of the undetermined European
term "copyright work" has been considerable: the term has to be interpreted uniformly throughout in
the EU, irrespective of the category of work. Furthermore, the CJEU has clarified that it is necessary
that an "own intellectual creation of its author" should be stamped by the author’s "personal touch" by
expressing his "free and creative choices" in the production of a work. This might be the case with
regard to portrait photographs of kindergarten and pre-school children, but it is not, when it comes to
football games and fixture lists of football leagues. *E.I.P.R. 340
As products of "labour, skills or effort" lacking the author’s "personal touch" will receive copyright
protection no more, it is open to discussing whether another legal protection is necessary. Unfair
competition law might be an option.
Dr Christian Handig
E.I.P.R. 2013, 35(6), 334-340

*. Senior Consultant of the Legal Department of the Wirtschaftskammer Wien (Austria), Academic Adviser of the
Veranstalterverband Österreich and editor of the legal journal ipCompetence.

1. For the first time in Ekro BV Vee- en Vleeshandel v Produktschap voor Vee en Vlees (327/82) [1984] E.C.R. 107 at
[11].
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2. The CJEU does not limit itself to construe the terms of the EU, but it also sets out the terms of international treaties
such as TRIPS, if the provisions "relate to a field in which the [EU] has already adopted legislation and which therefore
falls within the scope of [EU] law"; cf. Anheuser-Busch Inc v Budejovicky Budvar Narodni Podnik (C-245/02) [2004]
E.C.R. I-10989; [2005] E.T.M.R. 27 at [36]. Since the terms must be interpreted in the harmonised areas without this
uniform, this is only logical.

3. e.g. SGAE v Rafael Hoteles SL (C-306/05) [2006] E.C.R. I-11519; [2007] Bus. L.R. 521 at [31].

4. e.g. Padawan SL v SGAE (C-467/08) E.C.R. I-10055; [2011] E.C.D.R. 1 at [32].

5. Directive 2009/24 on the legal protection of computer programs [2009] OJ L111/16 art.1(3); originally, Directive 91/250
on the legal protection of computer programs [1991] OJ L122/42.

6. Directive 96/9 on the legal protection of databases [1996] OJ L 77/20 art.3(1).

7. Directive 2006/116 on the term of protection of copyright and certain related rights (codified version) art.6, [2006] OJ
L372/12 art.6; originally, Directive 93/98 harmonising the term of protection of copyright and certain related rights,
[1993] OJ L 290/9. The directive is sometimes also called the "Duration Directive".

8. Software Directive art.1(3).

9. Software Directive art.1(3); Term of Protection Directive art.6 and Database Directive art.3(1).

10. This might be partly due to the multitude of languages in the EU and hasty translations in the making of the provisions.

11. These are the Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of
intellectual property [1992] OJ L 346/61 in the codified version: Directive 2006/115 on rental right and lending right and
on certain rights related to copyright in the field of intellectual property [2006] OJ L376/28; Directive 93/83 on the
co-ordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting
and cable retransmission [1993] OJ L248/15; the Copyright Directive, which is Directive 2001/29 on the harmonisation
of certain aspects of copyright and related rights in the information society [2001] OJ L167/10, and Directive 2001/84 on
the resale right for the benefit of the author of an original work of art [2001] OJ L272/32.

12. Ch. Handig, "The Copyright Term ‘Work’—A European Harmonisation at an Unknown Level" [2009] I.I.C. 665, 669 et
seq; Ch. Handig "Is the Term ‘Work’ of the CDPA 1988 in Line with the European Directives?" [2010] E.I.P.R. 53, 54 et
seq.

13. cf. Berne Convention for the Protection of Literary and Artistic Works art.2.

14. A. Firth and F. Gotzen, "Towards a single EU concept of originality?", ALAI congress, Dublin, June 30, 2011.

15. While the court calls it Football Association Premier League, in the media it is mostly referred to as Murphy.

16. Football Association Premier League Ltd v QC Leisure (C-403/08 and C-429/08) [2012] Bus. L.R. 1321 at [188]. Even
so, there is some resistance; e.g. M. Walter wants to reduce the harmonisation to a basic level. M. Walter [2012] M.R.
82-83.

17. e.g. Football Association Premier League [2012] Bus. L.R. 1321 at [189]; SGAE v Rafael Hoteles [2006] E.C.R.
I-11519, [2007] Bus. L.R. 521 at [35].

18. Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886.

19. These works are bundled as, e.g., "literary, scientific and artistic domain" or "works of applied art".

20. Thereby it is clear that adaptations can also be copyright works.

21. Berne Convention art.2(8).

22. S. Ricketson and J. Ginsburg, International Copyright and Neighbouring Rights, 2nd edn (Oxford: Oxford University
Press, 2006), p.406.

23. Painer v Standard Verlags GmbH (C-145/10) [2012] E.C.D.R. 6.

24. Originally, Directive 93/98 harmonising the term of protection of copyright and certain related rights [1993] OJ L 290/9,
now Directive 2006/116 on the term of protection of copyright and certain related rights (codified version) [2006] OJ
L372/12. The directive is sometimes also called the "Duration Directive".

25. Painer [2012] E.C.D.R. 6 at [88], referring to Recital 17 of the Term of Protection Directive.

26. Painer [2012] E.C.D.R. 6 at [92].

27. Painer [2012] E.C.D.R. 6 at [94].

28. Painer [2012] E.C.D.R. 6 at [91].

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29. These are pictures of the later well-known Austrian kidnap victim Natascha Kampusch; her story has recently been
depicted in the movie 3096 days.

30. Ch. Handig, "EuGH zum Werkbegriff und zu den freien Werknutzungen" [2012] ecolex 58, 58.

31. What the CJEU does in most case, only in few cases it states that it can decide the case by itself, when it has all the
evidence necessary in relation to the case; e.g. Societa Consortile Fonografici (SCF) v Del Corso (C-135/10) [2012]
Bus. L.R. 1870 at [93].

32. The Football Dataco case demonstrated that—at least—a certain amount of creativity is necessary; see below.

33. Actually, there is a related right for producer of photographs, even if they are not copyright works; German Copyright
Act §72 and Austrian Copyright Act §74; this related right is possibly due to Recital 16 of the Term of Protection
Directive.

34. Schokoladeschuh (Chocolate Shoe) (Austrian Supreme Court 4 Ob 162/08i) [2009] Ö.Bl. 202 (M. Büchele); Fotostrecke
(Photo Series) (Austrian Supreme Court 4 Ob 175/08a) [2009] M.R. 81 (M. Walter). Concerning photography, the
Austrian jurisdiction lowered the standard owing to the expectation of the interpretation of the CJEU—in this field it was
enough if the used design elements which produce distinctness; cf. Eurobike (Austrian Supreme Court 4 Ob 179/01d)
[2003] Ö.Bl. 39 (H. Gamerith).

35. e.g. U. Loewenheim in G. Schricker and U. Loewenheim (eds), Urheberrecht, 4th edn (Munich: C.H. Beck, 2010),
para.2, Nos 8-41; Ch. Handig, "Ähnlich, aber nicht ident!" [2010] UFITA 385, 390.

36. Metallbett (Metal Bed) (German Supreme Court I ZR 142/01) [2004] GRUR 941.

37. A. Dietz, "Aktuelle Herausforderungen des geistigen Eigentums" in J. Straus (ed.), Festschrift für F. Beier zum
70.Geburtstag (Cologne: Carl Heymanns, 1996), p.355 at p.360.

38. cf. Hensher v Restawile [1976] A.C. 64 HL; Merlet v Mothercare [1986] R.P.C. 115 CA (Civ Div).

39. Flos SpA v Semeraro Casa e Famiglia SpA (C-168/09) [2011] E.C.D.R. 8 at [37-44].

40. P. Masiyakurima, "The Futility of the Idea/Expression-Dichotomy in the UK Copyright Law" [2007] I.I.C. 548, 549.

41. The "sweat of the brow" doctrine simply demands not enough "creativity"; cf. S. Lai, "Database Protection Directive in
the United Kingdom: The New Deal and its Effects on Software Protection" [1997] E.I.P.R. 32, 32-33; there is a similar
argument in S. Chalton, "Effect of the E.C. Database Protection Directive on the U.K. Copyright Law" [1997] E.I.P.R.
278, 281.

42. Football Dataco Ltd v Yahoo! UK Ltd (C-604/10) [2012] Bus. L.R. 1753 at [46].

43. Football Dataco [2012] Bus. L.R. 1753 at [40].

44. Football Dataco [2012] Bus. L.R. 1753 at [52].

45. e.g. Lai, "Database Protection Directive in the United Kingdom" [1997] E.I.P.R. 32, 32 et seq.; and Ch. Simon, "The
Effect of the E.C. Database Directive on United Kingdom Copyright Law in Relation to Databases: A Comparison of
Features" [1997] E.I.P.R. 278, 279.

46. M. Perry and T. Marghoni, "Ownership in Complex Authorship: A Comparative Study of Joint Works" [2010] E.I.P.R. 22,
29.

47. Feist Publications, Inc v Rural Telephone Service Co, Inc 499 U.S. 340 (1991); [1991] P.T.C.J. 453.

48. cf. T. Sinodinou, "Databases: sui generis protection and copyright protection" (December 2011),
http://kluwercopyrightblog.com/2011/12/20/databases-sui-generis-protection-and-copyright-protection/ [Accessed April
8, 2013].

49. Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2009] E.C.D.R. 16.

50. This view also corresponds to the earlier decision of the Austrian Supreme Court, in which it even granted copyright
protection to seven words of a song’s lyrics "So ein Tag, so wunderschön wie heute" (meaning: "such a day, as
beautiful as it is today"); cf. So ein Tag (Such a Day) (Austrian Supreme Court 4 Ob 136/90) [1991] Ö.Bl. 42.

51. Football Association Premier League [2012] Bus. L.R. 1321 at [98].

52. G. Korn in G. Kucsko, urheber.recht (Wien: Manz, 2008), p.126; S. Krumow, Der Schutz artistischer und sportlicher
Leistungen in der EU (Berlin: Mensch & Buch, 2005), p.30; A. y Berbel and S. Engels; "Hörfunkrechte—ein
eigenständiges Wirtschaftsgut" [2005] W.R.P. 191, 191. Only choreographic elements of sports events can obtain
copyright protection; cf. M. Walter, Österreichisches Urheberecht (Wien: Medien und Recht, 2008), no.184.

53. A haiku is a very short form of Japanese poetry.

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54. A mora is not identical to a syllable—a syllable usually contains one mora or two morae.

55. Ch. Handig, "Durch ‘freie kreative Entscheidungen’ zum europäischen urheberrechtlichen Werkbegriff" [2012] GRUR
Int. 973, 974.

56. Additionally, the CJEU surprisingly did not bother to consider whether the film of the football match might be a copyright
work—this would have been a much obvious choice. However, the court only picked out some copyrighted elements,
such as graphics and hymns.

57. World Intellectual Property Organization Copyright Treaty.

58. i.e. Trade-Related Aspects of Intellectual Property Rights.

59. e.g. in case of the WCT, the EU signed it in 1996, ratified it in 2009 and put it into force in 2010.

60. cf. the decisions of the ECJ in Commission v Germany (C-61/94) [1996] E.C.R. I-3989, [1997] 1 C.M.L.R. 281 at [52];
Anheuser-Busch (C-245/02) [2004] E.C.R. I-10989, [2005] E.T.M.R. 27 at [57].

61. The model in both cases was 17 Copyright Law of the USA §102(b); cf. A. Leenen, Urheberrecht und
Geschäftsmethoden (Baden-Baden: Nomos, 2005), p.45.

62. "This is particularly important because the number of available algorithms on which computer programs are based is
considerable but not unlimited"; cf. SAS Institute Inc v World Programming Ltd (C-406/10) [2012] 3 C.M.L.R. 4, Opinion
of A.G. Bot at [56], where he refers to point 3.7 of the Proposal for a Directive on the legal protection of computer
programs COM(1988) 816.

63. Recital 11 of Directive 2009/24 on the legal protection of computer programs (formerly Recital of 14 Directive 91/250).

64. SAS Institute [2012] 3 C.M.L.R. 4 at [46].

65. SAS Institute [2012] 3 C.M.L.R. 4 at [40].

66. cf. SAS Institute (C-406/10) [2012] 3 C.M.L.R. 4, Opinion of A.G. Bot at [55].

67. A. Pühringer, "Der urheberrechtliche Schutz von Fernsehformaten" [2005] M.R. 22, 22 et seq.; C. Thiele, "Nochmals:
Der (urheber-)rechtliche Schutz von Fernsehformaten" [2006] M.R. 314, 314 et seq.

68. G. Schricker, "Der Urheberrechtsschutz von Werbeschöpfungen, Werbeideen, Werbekonzeptionen und

Werbekampagnen" [1996] GRUR 815, 815 et seq.; P. Hertin, "Zur urheberrechtlichen Schutzfähigkeit von
Werbeleistungen unter besonderer Berücksichtigung von Werbekonzeptionen und Werbeideen" [1997] GRUR
799-816.; A. Pühringer, "Der urheberrechtliche Schutz von Werbung nach österreichischem und deutschem Recht"
(Munich: C.H. Beck, 2002), pp.62-82.

69. cf. point 3.7 of the Proposal for a Directive on the legal protection of computer programs COM(1988) 816.

70. Bezpe#nostní softwarová asociace—Svaz Softwarove Ochrany v Ministerstvo Kultury (C-393/09) [2011] E.C.D.R. 3 at
[49].

71. Football Dataco [2012] Bus. L.R. 1753 at [39] et seq.

72. cf. Ch. Handig, "Einfach originell … muss eine Idee sein—Die Schutzfähigkeit von Ideen nach dem UrhG" [2010] Ö.Bl.
52-57.

73. e.g. A. Sims, "The denial of copyright protection on the public policy grounds" [2008] E.I.P.R. 189; C. Davies, "A
Scandalous Affair: The Disparity in the Application of Morality to Trade Marks, Patents and Copyright" [2012] E.I.P.R. 4
referring inter alia to Attorney General v Guardian [1990] 1 A.C. 109 HL.

74. On the other hand, there is an example where copyright is used as a tool to repress the dissemination of immoral
works, e.g. thus Bavaria restrains the dispersal of Adolf Hitler’s infamous book Mein Kampf (My Struggle); cf. Sweden’s
Supreme Court (B 4367-97) [1999] G.R.U.R. Int. 625.

75. Directive 2008/95 to approximate the laws of the Member States relating to trade marks [2008] OJ L299/25 art.3(1)(f).

76. Regulation 207/2009 on the Community trade mark [2009] OJ L78/1 art.7(1)(f).

77. e.g. Austrian Patent Law 1970 §2(1)(1); German Patent Law §2(1), Irish Patents Act 1992 s.10(a); and Patents Act
1977 (of the UK) s.1(3)(a).

78. Convention on the Grant of European Patents art.53(a). As the EU Patent Law contains almost no detail provisions it
does not comprehend an equivalent provision; cf. Regulation (EU) No 1257/2012 implementing enhanced cooperation
in the area of the creation of unitary patent protection), [2012] O.J. L 361/1.

79. Recital 7 of Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market
(Unfair Commercial Practices Directive) [2005] OJ L149/22.
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80. e.g. W. Bullinger in A. Wandtke and W. Bullinger (eds), Praxiskommentar zum Urheberrecht, 3rd edn (Munich: C.H.
Beck, 2009), §2 No.32; H. Schack, Kunst und Recht (Tübingen: Mohr Siebeck, 2004), No.223; U. Loewenheim in
Urheberrecht (2010), §2 No.48.

81. e.g. C. Thiele and B. Laimer, "Urheberrechte an gesetz- oder sittenwidrigen Werken—Grenzen des Schöpferprinzips?"
[2004] Recht der Wirtschaft 718.

82. So did the Office for Harmonization in the Internal Market (OHIM), for instance, in the case of the words "SCREW
YOU", OHIM (R 495/2005-G); "HIJOPUTA", OHIM (R 0175/2010); and "FUCKING FREEZING!", OHIM (R 168/2011).

83. E. Rosati, "Originality in a Work of Originality: The Effects of the Infopaq Decision" [2011] E.I.P.R. 756, 754.

84. CDPA 1988 s.1(1); P. Masiyakurima, "The Idea/Expression Dichotomy in the UK Copyright Law" [2007] I.I.C. 548, 550.

85. A. Wandkte in A. Wandkte and W. Bullinger (eds), Praxiskommentar zum Urheberrecht, 2nd edn (Munich: C.H. Beck,
2006), p.6. In Austria, it is disputed whether a work has to be subsumed under the recognised categories to obtain
protection; e.g. On the one hand (pro), G. Kucsko in urheber.recht (2008), p.99 and W. Dilenz and D. Gutmann, UrhG &
VerwGesG, 2nd edn (Vienna: Springer, 2004), p.16; on the other hand (contra) M. Walter, Österreichisches
Urheberrecht, Teil I (Vienna: Medien und Recht, 2008), p.91.

86. T. Cheng, "Copyright Protection of Haute Cuisine: Recipe for Disaster?" [2008] E.I.P.R. 93.

87. Berne Convention art.2(2).

88. cf. CDPA 1988 s.3(2); likewise the Irish Copyright Act, Copyright and Related Rights Act 2000 s.18(1).

89. Handig "Is the Term ‘Work’ of the CDPA 1988 in Line with the European Directives?" [2010] E.I.P.R. 53, 55 et seq.

90. Of course there are also other aspects, too; as, e.g., Rosati pointed out, decisions like Sawkins v Hyperion Records Ltd
[2005] E.M.L.R. 29 CA (Civ Div) should be abandoned; cf. Rosati, "Originality in a Work of Originality" [2011] E.I.P.R.
756, 754.

91. C. Colston and K. Middleton, Modern Intellectual Property, 2nd edn (London: Cavendish Publishing, 2005), p.262.

92. D. Bainbridge, Intellectual Property, 6th edn (London: Pearson Longman, 2007), p.35.

93. cf. E Derclaye, "Wonderful or Worrisome? The Impact of the ECJ ruling in Infopaq an UK Copyright Law" [2010]
E.I.P.R. 247, 249.

94. Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market [2005] OJ
L149/22.

95. Concerning business-to-business transactions there is another directive with a limited scope: Directive 2006/114
concerning misleading and comparative advertising.

96. cf. Ch. Handig, "The Unfair Commercial Practices Directive—A Milestone in the European Unfair Competition Law?"
[2006] E.B.L.R. 1117, 1128 et seq.

97. Actually, the DG Justice evaluated both directives by consulting the stakeholders in 2011. Currently, there is also a
consultation about an extension of Directive 2006/114 concerning misleading and comparative advertising; cf.
Communication from the Commission about protecting businesses against misleading marketing practices and
ensuring effective, COM(2012) 702.

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