Der europäische Werkbegriff

The CJEU has harmonized copyright subject matter and the main conditions of copyright protection (i.e. the concept of copyright works) in its recent case law. Methodologically, this specification of the concept of work of authorship has been criticized but can be accepted. The European concept of copyright protected work is based on a concept of work which is not limited to the straightjacket of an enumerative catalogue of protectable creations (such as in the U.K.and Ireland). Instead, with regard to work categories it is an open-ended concept (such as in the Continental European jurisdictions). The substantive condition of protection is that the work is original in the sense that it constitutes the author's own intellectual creation and thus expresses the personality of the author. This presupposes that there is sufficient leeway for free and creative choices by the author. This criterion will not be satisfied if the choices of the author are characterized by technical or functional considerations which leave no room for creative freedom. Against this background, mere skill, judgment and labour will not suffice for copyright protection. In some judgments, these exclusions from copyright protectable subject matter are based quite transparently on the underlying interest in technological and industrial progress which demands freedom of competition with regard to certain technical and functional solutions. Thus, in the Court's recent case law, the comparatively low protection threshold is balanced by a robust exclusion of creations which are characterized by technical or functional considerations. Certain aspects of the standard of copyright work still remain unspecified by the Court. This concerns e.g.the condition of a specification of a work which is potentially perceptible to human senses. But these are not the central aspects of the work standard. More importantly, the Court has not yet developed a doctrine of free transformative use with regard to creative adaptations. This might be due to the fact that horizontal harmonization is hitherto limited to the right of reproduction, the right of distribution and the right of public communication (including the making available right). However, inevitably the harmonization of copyright subject matter will have to bring about the development of a doctrine of free creative use or a functional equivalent. The Cour's case law has not only established a structural framework of elements for the assessment of the substantive condition of copyright protection but has also developed certain guidelines for the specification of these elements, and namely the condition of originality with regard to different categories of works. In certain cases this has even been taken so far as to practically decide on the facts which had been established by the referring national court. However, the structural elements of assessment as well as the interpretational guidelines of the Court still leave sufficient leeway for the national courts in further specifying and applying the new standard to the cases before them. With regard to German law the new standard of European copyright protection should lead to the definitive abandonment of the additional criterion of a substantial level of creativity (Gestaltungshöhe) with regard to certain categories of work. Although European law does not definitely demand this, the criterion should also be given up in the field of the applied arts. This is because, the application of the European criteria of sufficient leeway for free and creative choices and in particular the exclusion of functional and technical creativity provide for concepts which will allow to establish the necessary strict conditions in this particular field on the basis of the application of harmonized European legal notions. Ideally, this should allow to establish adequately strict standards with regard to the applied arts (and more practical works in general) throughout the Union. N