A Comparative Consideration of the Originality Standard for Copyright in the Common-Law and Civil Law Systems of the United Kingdom and United States, with France and Germany
The question of creativity in copyright frequently sees the common-law system opposed to the civil law systems, regarding their traditional standards. However, it is insufficiently appreciated that over centuries these standards have converged now to be substantially similar. Not only that, but it is sometimes overlooked that the common-law jurisdictions of the UK and USA arrived at this position through quite different paths. In this blog we shall attempt to trace the development, and the current position of the originality standard in those two major common-law jurisdictions alongside that of the two representative civil law jurisdictions of France and Germany.
Infopaq[1]profoundly impacted copyright/authors’ rights systems under the EU, or as with the UK, in assimilated EU law, regarding the originality standard. Similarly, the earlier US decision of Feist[2] had a profound impact in reshaping the standard of originality in the US. These decisions have had a significant impact across all the jurisdictions of the UK, France, Germany, and US in clarifying, or, as the case may be, changing subject matter protection.
- Common-Law Prior Position
As a general point, Abrams has rightly stated that since originality is the “core” of copyright protection, a fixing or a change in its definition, will change the type and number of works able to be protected because of the defining standard being lower or higher than before.[3] This is clearly seen in the US and UK.
United Kingdom: “labour, judgment or skill”
Origination from an author under the standard of “labour, judgment or skill” to be determined on the facts of a particular case was the pre-Infopaq rule.[4] Here a “substantial degree” of labour or “experience”, that is skill, was to be applied, but the required substantiality was nevertheless of a minimal level such that a high quality anthology received the same protection as a goods catalogue.[5] To gain protection only a lack of copying was necessary, and therefore products which did evidence significant labour, judgment or skill would be unprotected because they were essentially copies.[6] Lord Oliver in Interlego gave the example of a “well executed tracing” as failing to be protected, which demonstrates a significant difference from the old US standard as we shall see.[7] Perhaps the most famous example of the old standard in action is Walter v Lane in the House of Lords.[8] Their Lordships held that originality required no literary merit, but only a demonstration of labour, judgment or skill in transcription of an oral speech into writing.[9] This understanding of originality applies, even though there was some judicial uncertainty as to whether following the 1956 Act, and Lord Halsbury’s insistence that originality was not required under the 1842 Act for copyrightability, whether Walter v Lane was good law.[10] Walter v Lane led to the result that the initial intellect who formulated, or created, the speech enjoyed no copyright, but the transcriber did, which is perhaps the most striking example of how the old standard differs from the new.[11] Derivative works were judged on a different basis, that of there being “material alteration”, which was likewise a bare minimum standard.[12] In all, the very low standard required no element of intellectual creation and afforded databases and mere compilations to be copyrightable.[13]
United States: “sweat of the brow”
Whereas the UK had a generally uniform standard, the United States several federal circuits had generated some chaos in what standard, whether one approximating the UK or one requiring creativity similar to civil law jurisdictions, was to be applied before Feist definitively settled the question.[14]
The “sweat of the brow” standard was persistently applied, specifically in relation to compilations, across the majority of circuits before Feist.[15] Under this standard it was only necessary to prove that the compiler of a work exerted labour in the production of a work, with no requirement of creativity.[16] The sort of subject matter protected here included white pages directories where mere information was uncreatively arranged but which required labour, alongside novels where significant creativity and labour was expended.[17] Nevertheless, the Second Circuit (which originated the test), followed by three other circuits, later repudiated it in favour of a standard requiring a minimum of creativity, and so creative selection for compilations, to qualify for copyright protection.[18]
However, across the circuits the application of the originality standard as regards artistic reproductions seemed to have been uncertain. Catalda seemed to suggest that copying from one medium to another evinced sufficient originality inasmuch as it was above a merely trivial variation on the work copied.[19] However later cases, e.g., Tomy, indicate that copying between mediums evinced not artistic skill but only physical skill, and so was insufficiently original.[20] Yet a later case, suggests that exact copies made as scale reproductions may be copyrightable if they required skill and originality though leaves what precisely originality there means undefined, except that it is conditioned by the exactitude of the reproduction.[21] It is submitted that this de minimis standard is difficult to distinguish from the “sweat of the brow” approach, because originality here seems to be conflated with the expending of labour in seeking exact reproduction. It should be noted here that it was under the jurisdiction of the Second Circuit where this case-law was developed, and where the “creative selection” approach was first formulated when it repudiated the “sweat of the brow” doctrine it had previously formulated. We shall discuss the case-law here comparatively in a later section. It should however be clear that the disparities among the circuits made the question ripe to be resolved by the Supreme Court.
- Civil Law Pre-Infopaq
Now we take a trip across the Channel, onto continental Europe to consider what standards France and Germany had before the European Court of Justice handed down its harmonizing decision.
France
It is an “author of a work of the mind” who is given rights in that work under the French Code, if that work be original.[22] To establish originality, only real artistic choices must be made.[23] That is, the mode of expression must communicate what “creative contribution” the author made.[24] This was so broadly applied that perfumes were potentially protectable.[25] The standard was low, but labour was in itself insufficient.[26] Instead, the bare minimum required was for an author of a compilation to have made a choice of method.[27] Thus, the French courts broadly interpreted the originality requirement to protect comparative tables, and specialised telephone directories.[28] In France, a mark of the “personal character” of the author was required for a work to have author’s rights subsist in it.[29]
Germany
Similar to France, Germany’s originality standard protects only those works which are the “author’s own intellectual creations”. However, this standard was differently applied depending on the subject matter. The standard test was the very low intensity one of “kleine Münze”, that is, small change, whereby even “non-original” writings, particularly databases, and also compilations, and instruction manuals were protectable,[30] which is strikingly similar to the breadth of subject matter protection in France.[31] In this connexion, the selection and arrangement of information to create alphabetically arranged booking entries was held sufficient to meet the requirement for a work to be the author’[32] In contrast, for works of applied art the “Schöpfungshöhe”, that is, level of creativity, test applied which required. [33][34]
Both considered together vis-à-vis computer programs and databases
The personality-theory derived civil law standards struggled to give databases and computer software appropriate protection. In Germany, the “kleine Münze” requirement itself was not inimical to protecting software, but was inconvenient inasmuch as it generally precluded programs from protection by being too high a standard.[35] In France, similar problems existed until Pachot which accommodated, as a matter of domestic law, the requirement that the work reflect the personality of the author, by requiring that it show a mark of his intellectual contribution, e.g., by choosing, selecting, and arranging matter.[36] It was only thus that France could give adequate protection to computer software, while Germany struggled to accommodate; the UK faced no such problems.[37] That is, there were struggles here until the Union-level Software and Database Directives harmonized the law in these areas, itself strikingly similar to the approach in Pachot, as Rahmatian has noted.[38] It would be right to note that the civil law standard of originality overall shifted, more particularly in the developments in France, to reflect less a subjective romantic notion of authorship (e.g., in Diderot)[39] to a more objective one, and we thus hold back from saying it reflects novelty.[40] This seems to be reflected in the civil law influenced EU jurisprudence also.[41] It will therefore not be necessary to discuss this aspect of subject matter, that is software and databases, in its post-Infopaq stage, as it remains substantially similar to the position before the CJEU’s harmonization.
- EU-level Harmonization
The harmonization of copyright in the EU saw Directives protecting computer programs[42] and databases[43] by requiring them to be original, and setting the standard of originality as that of the author’s own intellectual creation, which already modified, and arguably raised, the test in these areas for the UK pre-Infopaq. As we have seen, the French and German systems were consonant with this in their standards and subject matter protection. The low British standard however required statutory modification here to include the “author’s own intellectual creation” in judging cases of databases.[44] This created uncertainty in the academic commentariat about whether mere lack of copying, as was previously sufficient, was an acceptable standard.[45]
With Infopaq the activist CJEU harmonized the copyright standard writ large, defining originality across all subject matter categories as that of an expression of the author’s own intellectual creation.[46] The author must, in an original way, “express his creativity” and thus alone is an “intellectual creation” constituted. Here AG Mengozzi has argued that the CJEU adopted the more intense civil law standard over the lower British standard.[47] Indeed, Bently, Sherman et al. concur in noting that the Infopaq standard is substantially that of the droit d’auteur jurisdictions who require an expression of the author’s personality to be established for rights to subsist.[48] How does this concern subject matter? Written works satisfy the standard by expressing the authors “choice, sequence and combination” of words.[49] As regards clothing design, a work must express the author’s “free and creative choices” reflecting his personality,[50] which is the same for photographs to reflect the author’s “personal touch”.[51]
Before proceeding we must observe the following. First, whereas the UK and US historically derived their copyright systems from the same tradition,[52] the development of their originality standards has been different. Considering that the UK standard is derived from the EU, and the US standard from O’Conner J.’s construction of Art. I, § 8, cl. 8 of their Constitution, it is appropriate to analyse the UK standard in relation to the other EU jurisdictions, with a view to how, as regards subject matter and intra-jurisdictional rationale for protection, this dialogues with the US.[53] Second, we shall observe that even though the CJEU seemed to prefer the civil law standard,[54] its harmonizing jurisprudence has had a considerable impact on the subject matter protections in the UK, but also, to a limited extent, to those in France and Germany.
United Kingdom post-Infopaq
The changed originality standard had a confused reception in the British copyright system. For example, Rahmatian has echoed[55] the view of Morritt C. that Infopaq’s requirement of an intellectual creation did not materially affect the old “long standing test” inasmuch as Infopaq apparently only meant that the work originated from the author, as the UK jurisprudence established.[56] In Temple Island, the court treated the old test as interchangeable with the Infopaq test.[57] In SAS Institute, however,Arnold J. chose to directly apply the CJEU guidance in applying the intellectual creation standard.[58] Thus, in Meltwater, Proudman J. rightlyobserved that Infopaq then did “sit awkwardly” with the established British jurisprudence and law.[59] This disparity in application causes uncertainty, and as such this may be a reason for some judges to attempt a return firmly to the old standard post-Brexit.[60] Arnold LJ has, for the present, resolved this uncertainty in Sheridan and in Lidl v Tesco by affirming that the “more demanding” intellectual creation test constitutes the governing law.[61] Sir Richard, however, failed to note that the standard is not uniformly higher in that previously unprotected subject matter, because it was trivial or was an incorrect type of contribution, is now protectable.[62] His resolution is not certainly established either, as we shall see.
Artistic merit remains irrelevant to assessing originality,[63] and thus, both the old and new standards pose a low threshold to be met.[64] The old standard protected databases alongside other literary subject matter alike under the de minimis standard of significant labour,[65] whereas now sui generis protection is required to protect them.[66] Furthermore, whilst photographs that are intellectual creations are protected,[67] it is unlikely that non-creative photographs taken merely using judgement are copyrightable.[68] For such photographs creating a sui generis right may be advisable,[69] because under the CJEU standard requiring creative choices, they would be unprotectable.[70] Indeed, since reporting a speech verbatim would require no creative choices, it seems, Sir Richard argues, that Walter v Lane is now bad law concerning originality.[71] Indeed, the fact that technical considerations dictate such works directly contradicts the precedent in Football Dataco and Cofemel,[72]which would likewise preclude the recording of an audiences reactions from copyright also. [73]
One quite obvious area where artistic merit is of little concern is that of computer generated works.[74] Presently an author of a computer generated work is deemed to be the person who made the necessary arrangements for the creation of the work to happen.[75] The statutory provision sits most comfortably with the old “judgment, skill or labour” standard in that to arrange for something, as Pumfrey J. has noted, allows for one’s skill and labour to be exercised.[76] It is an odd provision, for if it requires originality then it is redundant, because if originality exists then the work falls under the s.1(1) categories.[77] Presently, irrespective of what the statute seems to imply, it is the intellectual creation test which ought to be applied.[78] Indeed, in Sheridan where a s.9(3) factual matrix existed, the court considered the question as an ordinary LDMA matter, and thus first impliedly supported our contention that s.9(3) is redundant. Second, as to the application of the originality requirement, it was easily done in Sheridan because the facts clearly indicated that claimant’s employee was the human author of the work.[79] Should a more difficult case arise where Infopaq originality does not arise, a different court may choose to follow what the statute seems to require regarding computer generated works, where the work would only be original in the sense of a person being the source in a more minimal sense.[80] It is likely that works produced by generative artificial intelligence models would not be protected by s. 9(3) in any case. However, the wording of the statute leaves open the possibility for the “judgment, skill or labour” standard to return in limited circumstances, and to thus expand subject matter to computer generated works that are not intellectual creations, but the arrangement of which production was done by human labour.[81] This will become useful in our discussion of such subject matter in the United States.[82]
However, it would be false to suggest that the new standard merely increases scrutiny, because it also lowers the standard expanding subject matter in some areas, such as titles of works.[83] To protect literary works, literary composition was necessary, and, in this vein, the work had to be substantial, and titles were generally considered not to meet these conditions.[84] However, now it is sufficient that the author reflects his personality via making a choice, and combination of words in a sequence, and this constitutes an intellectual creation.[85] Here we may note that a recording of someone’s spontaneous speech might be copyrightable should the courts follow the persuasive Dutch precedent, and hold that in the facts of a particular case, the speaker thus recorded produced an intellectual creation.[86]
Previously, there was inconsistency in the application of the three old considerations for assessing originality.[87] Despite the initial uncertainty as to the effect of Infopaq, recent decisions indicate that the CJEU’s harmonization,[88] requiring a uniform application of the test, will create greater consistency in the UK regarding originality jurisprudence.[89] It is to be hoped also that following Lenova Hengelo the courts may cease to be so literal in adhering to the statutory list of protected works,[90] on which basis, for example, they denied the stormtrooper helmet protection as a sculpture.[91] On a textual stautory analysis, the categories are arguably open-ended[92] and Lenova Hengola may open the door for more flexibly assessing protection under these categories on the basis of an item being precisely and objectively discernible, whilst still not defeating the intent of the statutory listing.[93] In this way the post-Infopaq jurisprudence clarifies the objectivity standard’s application to subject matter, making it more consistent and also more demanding in some areas, but, simultaneously allows courts in the future to perhaps be more flexible in determining subject matter protection.[94] It remains to be seen how the courts will develop the law in this area in their continuing dialogue with assimilated EU law.
France and Germany post-Infopaq
Despite the CJEU’s preferring the civil law standard, France and Germany are materially affected by Infopaq.[95] Regarding Germany, two things may be said. First, by force of the harmonization caused by Infopaq, requiring a uniform standard of originality, the “Schöpfungshöhe” standard is impermissible as a matter of Union law.[96] Second, and independetly, as a matter of German domestic law the Geburtstagszug case establishes that in relation to registered designs there is no such thing as a work of applied art to which the “Schöpfungshöhe” doctrine would apply.[97] Therefore in German law the standard is that of “kleine Münze”, but now conditioned by the CJEU jurisprudence on originality.[98] It is useful here to develop our point made in relation to the UK and photographs which are not intellectual creations. For, Germany has instituted sui generis protections for such works, which may be a comparative model the UK may have heed to in creating parallel protections.[99]
As with Germany, so with France it seems that Infopaq has raised the bar for originality. Whereas in the UK titles were generally unprotectable,[100] in France the old position was that even titles of a single word had author’s rights in them because they could be sufficiently creative, but on indeterminable grounds.[101] Now the grounds are clear, and as a single word is inherently not a “sequence and combination”, it is precluded from protection.[102] Interestingly then, the French civil law standard has been increased here. Other areas too were indeterminate in the French author’s rights, particularly fragrances. Some courts considered them productions of an author’s mind,[103] whereas others did not.[104] As a matter of Union law following Lenova Hengelo, it is established now that taste, and thus smell by analogy, is too imprecise and subjective to be protectable.[105] Next, following Cofemel one may argue that perfume production is dictated by technical considerations and thus fragrances are not protected.[106] This second argument finds some support in one strain of the old French jurisprudence which held that fragrances, being made by the “mere implementation of knowhow” could not have author’s rights inhere in them.[107]
It is interesting to note how both in Germany and France the transformed standard of originality has imposed greater consistency in subject matter protection. In Germany it prevents the unequal treatment of ordinary subject matter and works of applied art.[108] In France it resolves uncertainty as to fragrance protection, as well as tightening the ambit of subject matter, by eliminating single word titles from protectability.[109] We have noted already how the common law UK system is affected and made more consistent by Infopaq. The UK may still stand to learn from Germany’s sui generis protections of photographs, considering that its originality standard is now substantially similar to continental systems.[110]
United States post-Feist
Previously courts considered that the sweat standard accorded compilations copyright because it was the only meaningful protection they could be given.[111] Feist rejected that argument,[112] and held that as a matter of both constitutional and statutory construction, it is necessary for a modicum of creativity to be demonstrated for copyright to inhere in a work.[113] For compilations, this would be reflected by the independent selection and arrangement of matter, such that a yellow pages directory may be copyrightable, but a white pages directory cannot be.[114] For, facts are unprotectable, but it is the independent selection and arrangement in which the copyright inheres.[115]
The Feist doctrine initially had a mixed reception among the circuits.[116] The Fourth and Fifth Circuits are notable in this regard by conflating mere labour with Feist originality.[117] In Payphone, the Fourth Circuit conflated investment of significant time, analysis, and bare interpretation of facts with a modicum of creativity in selecting, coordinating, and arranging information.[118] The reasoning plainly contradicts Feist’s prevention of copyright in works with only a “garden-variety” work that is simple and easy to read, which the Circuit nonetheless ignored.[119] The Fifth Circuit in Mason likewise wrongly used such reasoning to effectively smuggle the sweat of the brow doctrine in the unconvincing garb of Feist.[120] However, the Fourth Circuit in iParadigms reaffirmed the requirement of a minimal degree of creativity,[121] and in a later case applied this to a database, effectively departing from Payphone, by noting that routine categorisation is an insufficiently creative form of selection and arrangement to attract copyright.[122] The Fifth Circuit similarly now correctly applies Feist in that it has held that a work, i.e., a blank data-entry form, which is the product of significant labour is unprotectable unless it also involves selection and arrangement of some information which allows its effective use.[123] Such reasoning, it is submitted, mirrors the yellow pages cases as regards selection and arrangement.[124]
As regards digital databases, and other printed databases where there must be creative selection and arrangement involved also, and the majority in the Bender case which denied copyright to the plaintiffs drew comparisons to the yellow page case of BellSouth in laying down the law, noting that their selection and arrangement of facts could not reasonably be held to be creative.[125] However, star pagination, in Mead has been considered copyrightable though on dubious reasoning merging minimal labour understandings with minimal creativity, which is to falsely equivocate the sweat standard with creativity.[126] Bender which disagreed with Mead as being overruled by Feist, is a better representative of the law post-Feist.[127] Thus, throughout the United States now, uncreative works, such as databases with no modicum of creativity, are unprotectable.[128]
A fortiori, animal,[129] mechanical, or artificial intelligence[130] produced photographs, artworks or software cannot be protected under the current standard, and probably also under the sweat of the brow doctrine too, because both presume human involvement either by creativity or effort. Legislation protecting these latter valuable assets, it is submitted, would have to be under a different sui generis right created under the Commerce Clause.[131] Under such a scheme white papers directories could also be protected, if monopoly protection is the best way of protecting such uncreative works,[132]because such rights must not necessarily invoke creativity but could apply under a standard akin to the sweat of the brow and thus reflect the historic Anglo-American protections for such subject matter.[133] Related rights, assessed by a new standard to be determined by Congress, could be created for works where no human input is involved.
In Kregos, the Second Circuit has given further guidance, persuasive across other circuits, on determining whether selection is creative.[134] If taste and personal opinion is involved, copyright inheres, whereas if it is a technical task then it does not.[135] Kregos clarifies the statement in Feist by insisting that a work must exceed the negative standards of being “garden-variety” or “practically inevitable”.[136] Following Feist and the Kregos guidance we may consider some more subject matter categories. Whereas the question of taste and smell copyright is now settled in the EU, it is not in the US.[137] It has been argued that the creativity requirement may be satisfied by such subject matter.[138] However, we submit that Feist would likely preclude such protections if the court considered taste and smell as being “practically inevitable” consequences of a technical process,[139] if this is interpreted in a way similar to the EU case-law in Cofemel which precludes protection for works where there is no creative freedom because a technical process dictates the result.[140] It would therefore not surpass bare minimum, thus uncreative, mental contribution, and be unprotectable following Kregos.[141] Alternatively, protection could be refused on an alternate basis in that, following Mazer v Stein (1954), any statutory requirements of perception are implied to be objectively tangible (as a constitutional condition), but whereas smell and taste are subjective, ipso facto they cannot be copyrighted.[142] Thus, Feist would provide a new ground in originality to refuse such works protection, whereas previously they would probably also not be protectable but based strictly on subject matter grounds. It is notable that Mazer mirrors in some respects the later EU reasoning on subjectivity of perception precluding copyright, in Lenova Hengola.[143] Our comparative suggestions stem from the similarity of the standards as they now exist, and the possibility for cross-pollination to develop the US jurisprudence in these areas of subject matter which have not been judicially considered in the US before but have in the EU.
Regarding derivative works, Catalda is most certainly bad law now since it treats originality as no more than actual copying, and derives its test for reproductions from that basis.[144] As such a meticulous engraving would likely not be protected under the more rigorous Feist standard. It is more likely that the creativity-based Tomy standard is consonant with Feist.[145] That said, reproductions of works like Rodin’s ‘Hand of God’ protected in Winninger would not be protectable if a simple application of Feist’s preclusion of practical inevitability is applied in the way we have suggested.[146] This anticipates Leaffer’s argument justifying Winninger, in that it does not answer objections based on practical inevitabile results satisfactorily.[147] Creative authorship is necessary in subject matter writ large.[148]
The issue of computer-generated works has not been statutorily treated in the US as it has been considered “obvious” that the person directing a computer would be the original creator of a work, for the purposes of copyright.[149] However, the National Commission’s suggestion in this respect was based on the now irrelevant low sweat standard in Catalda.[150]It is notable that in this regard the position is similar to that of s. 9(3) of the UK CDPA 1988, as our prior discussion has shown, concerning the UK’s similar old originality standard. However, there is no specific statutory basis in the US for rights in computer-generated works, and so it is more straightforwardly suggested that Feist raises the standard for such works uniformly. No “harder” subject matter cases need arise in the US here, though might in the UK.[151] That said, Leaffer would be wrong if he meant to suggest that the US might take s. 9(3) of the UK Act as a model for its own protection of computer-generated works because, first, it would unconstitutionally reintroduce the sweat doctrine. Second, it would be unnecessary as a human author may partially own copyright in an AI generated work where he has added his own original authorship to the AI generated matter.[152] Third, we submit that sui generis protections could be created for specific sorts of computer-generated subject matter in certain circumstances (to be determined by the legislature) more easily under the Commerce Clause than in copyright, where creativity would prevent such protections from being effectual.
- Final Comparative Consideration of All Jurisdictions
The originality standard across all the jurisdictions we have considered has undergone significant modification, most so in the common law jurisdictions. The old British “labour, judgment or skill” standard and the old US “sweat of the brow” standard are now defunct.[153] These was a greater amount of subject matter protected generally, including non-creative databases, and lists, which were valuable commercial assets, but are no longer protected due to the higher standard.[154] In the UK, the standard was not uniform and had special categories of protection, such that titles were not generally protectable, but now under Infopaq they are.[155] The US and UK standards have now shifted to a more subjectivist civil law-style standard where the emphasis is more on the touch of personality an author imparts on a work, than on objective labour.[156] This need not be overemphasised because the civil law systems, particularly France following Pachot, were shifting more to an objective assessment.[157] This was crystallized in the EU (and UK) with Infopaq’s objective test for establishing creative authorship,[158] and the US Feist modes of assessing originality, in terms of selection and arrangement are substantially similar to the objective EU approach.[159] Rahamatian notes that the standard is now slightly higher in the UK and US,[160] and it should be observed it is also higher in France.[161] However, the standard is slightly lower now in Germany concerning works of applied art.[162] It is not only “[b]orderline cases” which are now without protection though.[163] The matter no longer protected in the US and UK, and even regarding fragrances in France, constitute significant and valuable assets. Why then, for example, are most useful databases now unprotected, but potentially useless but arbitrarily creative databases protected in the US, EU, and UK?[164] In regards to such uncreative subject matter, some regard may be had to Germany.[165] German protection of uncreative photographs may be a model for the UK, but also the other countries we have discussed.[166] Such sui generis protections, we submit, may be extendable to other valuable subject matter such are non-creative databases, and fragrances. In the UK, the courts could also interpret s. 9(3) of the CDPA more expansively post-Brexit to assist towards expanding subject matter protections.[167] The modification in the originality standard across the several jurisdictions at hand is surely a significant change as we have discussed. So, while a small number of things may fall out of protection, this change in itself is economically significant and thus the changes in terms of copyright protection cannot reasonably be said to be minimal.
Conclusion
To conclude, the changes in subject matter protection across the US, UK, and EU, including France and Germany, have been significant. Valuable assets once protected no longer are due to the creativity requirement, which is substantially similar, now existing across those jurisdictions. It is, of course, in a sense beneficial that over the course of several decades, even centuries (depending on how long a perspective you are taking), that we have achieved this similarity. For one it provides rights owners with greater certainty as to their position in any given jurisdiction, rather than having to figure out their rights across multiple different countries with vastly different standards of originality protecting different subject matters. This convergence across the standards is without a doubt a benefit to those in the creative arts and entertainment industry seeking to sell their products, or protect their rights, in foreign jurisdictions to know their position. Thankfully it does not seem that the position is likely to change in the future.
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Case C-5/08 Infopaq International AS v Danske Dagblades Forening [2009] EU:C:2009:465, [2009] ECR I-6569 [27], [37], [39], [45].
Case C-145/10 Eva-Maria Painer v Standard Verlags GmbH and Others [2011] EU:C:2011:798 [87], [91].
Football Dataco Ltd v Yahoo UK Ltd (C-604/10) [2012] EU:C:2012:115 [AG 36], [AG 41].
Case C-310/17 Lenova Hengelo BV v Smilde Foods BV [2018] EU:C:2018:899 [23].
Case C- 683/17 Cofemel – Sociedade de Vestuário SA v G-Star Raw CV [2019] EU:C:2019:721 [30], [37].
Articles and Blogs
Rosati, E, ‘Can the taste of a cheese be copyrighted?’ (OUP Blog, 26 Apr 2019) <https://blog.oup.com/2019/04/taste-cheese-copyrighted/> accessed 29 Apr 2025.
France
Code
Code de la Propriété Intellectuelle (1992) Art L 111-1.
Cases
Cass crim, 18 May 1938: Gaz Pal 1938 2 311.
Clochemerle Lyon (CA Lyon, 5 July 1979) 102 RIDA 147.
Pachot Cass ass, 7 March 1986.
Cass crim, 2 May 1990: JCP G 1990 II 21392.
Coprosa RIDA 1/1990 309.
Thierry Mugler Parfums v SA GLB Molinard (2001) 188 RIDA 3, 8, 30, 33.
Sawkins v Harmonica Mundi (2006) 37 IIC 116, 119
Société Bellure v Société L’Oréal (CA Paris, 4e ch, 25 Jan 2006) RIDA 286; [2006] ECDR 16.
Bsiri-Babir v Harmaan et Remir, Cass 1e Civ, 13 June 2006, [2006] ECDR 380.
Articles and Blogs
Derclaye, E, ‘One on the nose for Bellure: French appellate court confirms that perfumes are copyright protected’ [2006] JIPLP 377
Gervais, D J, ‘Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law’ [2002] 49 Journal Copyright Soc USA 949, 969.
Seville, C, ‘Copyright in Perfume: Smelling a Rat’ [2007] 66 CLJ 49, 51.
Sterling, J A L, Cook, T, (eds), Sterling on World Copyright Law (6th edn, Sweet & Maxwell 2022) s 1.84, s 6.50, s 6.108, s 6.157(n171).
Spitz B, ‘Originality of a computer program under French law’ (Kluwer Copyright Blog, 9 Jan 2013) <https://copyrightblog.kluweriplaw.com/2013/01/09/originality-of-a-computer-program-under-french-law/> accessed 29 Apr 2025.
Germany
Cases
Dirlada, BGH 26.09.1980 – I ZR 17/78
BGH – Inkasso-Programm (BGH, 9 May 1985) GRUR 1985 1041.
LG Düsseldorf 2 Feb 1968 (booking-entry databases).
BVerfG, 26 Jan 2005 – 1 BvR 1571/02 [4], [7].
Geburtstagszug (I ZR 143/12) Urteil des I Zivilsenats v 13 Nov 2013.
Articles and Blogs
Clark, B, ‘BGH abandons distinction between works of applied and purpose free art’ (IPKat, 16 Nov 2013) <https://ipkitten.blogspot.com/2013/11/bgh-abandons-distinction-between-works.html> accessed 29 Apr 2025.
Rahmatian, A, ‘Originality in the United Kingdom: The Old “Skill and Labour” Doctrine Under Pressure’ [2013] 44 IIC 4, 21–25.
United States of America
Constitutional Provision
US Constitution Art I, § 8, cls 3, 8.
Statute
17 U.S.C. § 102(a)
Cases
Jeweler’s Circular Publishing Co v Keystone Publishing Co 281 F 83, 88 (2d Cir 1922).
Alfred Bell & Co v Catalda Fine Arts, Inc 191 F.2d 99 (2d Cir 1951).
Mazer v Stein 347 US 201, 214 (1954).
Alva Studios, Inc v Winninger 177 F Supp 265, 267 (SDNY 1959).
Rosemont Enterprises, Inc v Random House, Inc 366 F.2d 303, 150 USPQ 715 (2d Cir 1966).
Durham Industries v Tomy Corp 630 F.2d 905 (2d Cir 1980).
National Business Lists v Dun & Bradstreet, Inc 552 F Supp 89, 95 (ND Ill 1982).
West Publishing Co v Mead Data Central, Inc 799 F.2d 1219, 1223, 1226–27 (8th Cir 1986).
Matthew Bender & Co v West Publishing Co 158 F.3d 678, 682 (2d Cir 1988).
Feist Publications, Inc v Rural Tel Serv Co 499 US 340, 348, 350–51, 357–58, 362, 471–72. (1991)
Kregos v Associated Press 937 F.2d 700, 704, 707 (2d Cir 1991).
US Payphone, Inc v Executives Unlimited of Durham, Inc 931 F.2d 888 (4th Cir 1991).
Hodge E Mason & Hodge Mason Maps, Inc v Montgomery Data, Inc 967 F.2d (5th Cir 1992).
BellSouth Advertising & Publishing Corp v Donnelley Info Publishing Inc 999 F.2d 1436 (11th Cir 1993).
Engineering Dynamics, Inc v Structural Software, Inc 26 F.3d 1335, 1344 (5th Cir 1994); 46 F.3d 408, 409 (5th Cir 1995).
Naruto, a Crested Macaque v Slater 888 F.3d 418 (9th Cir 2018).
A V v iParadigms, LLC 562 F.3d 630 (4th Cir 2009).
AHRN, LLC v Realtor.com, Inc 983 F.3d 664 (4th Cir 2020).
Southern Credentialing Support Services, LLC v Hammond Surgical Hospital, LLC No 18-31160 (5th Cir 2020) 4.
Thomson Reuters Enterprise Centre GmbH & West Publishing Corp v Ross Intelligence Inc [2025] WL 458520 (D Del, Case No 1:20-cv-613-SB) 2–3 (Reported on WestLaw).
Commentary & Reports
CONTU Final Report, ‘Final Report of the National Commission on New Technological Uses of Copyrighted Works’ (1978) 45.
Field, T G Jr, ‘Copyright Protection for Perfumes’ (2004) 45 IDEA J L & T 19.
Ginsburg, J C, ‘A Tale of Two Copyrights: Literary Property in Revolutionary France and America’ [1990] Tul. L. Rev. 991
Leaffer, M A, Understanding Copyright Law (Carolina Academic Press 2024) 71, 125 n 64–65.
Meade, T L, ‘Ex-Post Feist: Application of a Landmark Copyright Decision’ [1994] 2 Journal of Intellectual Property Law 245, 248–51, 256–68.
Nagpal, Y, ‘Perfume as an Artistic Expression: Scope of Intellectual Property Rights in Perfume’ (Fashion & Law Journal, 3 Oct 2021) <https://fashionlawjournal.com/perfume-as-an-artistic-expression-scope-of-intellectual-property-rights-in-perfume/> accessed 1 May 2025.
Reese, T, ‘Congressional Powers and Limitations Inherent in the Copyright Clause’ [2007] 30 Colum L J & Arts 259, 276.
FOOTNOTES
[1] Case C-5/08 Infopaq International AS v Danske Dagblades Forening [2009] ECR I-6569
[2] Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)
[3] Howard B Abrams, ‘Originality and Creativity in Copyright Law’ [1992] 55 Law and Contemporary Problems 3, 4-5
[4] Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 279, 282, 283, 289 (Lord Reid and Lord Devlin)
[5] ibid 289-290 (Lord Devlin)
[6] ibid 291 (Lord Pearce); University of London Press v University Tutorial Press [1916] 2 Ch 601, 608
[7] Interlego AG v Tyco Industries [1989] AC 217, 262-263
[8] Walter v Lane [1900] AC 539.
[9] ibid 551-552 (Lord Davey)
[10] Lady H Roberton v Harry Lewis (t/a Virginia Music) [1976] RPC 169, 175
[11] Walter v Lane (n8) 556-557 (Lord Brampton); Infopaq (n1) [37]
[12] Interlego (n7) 262-263
[13] British Horseracing Board v William Hill Organization Ltd [2005] EWCA Civ 863
[14] Tracy Lea Meade, ‘Ex-Post Feist: Application of a Landmark Copyright Decision’ [1994] 2 Journal of Intellectual Property Law 245, 248-251; cf. 17 U.S.C. § 102(a)
[15] Jeweler’s Circular Publishing Co. v. Keystone Publishing Co., 281 F. 83, 88 (CA2 1922); cf. Feist (n2) 352-353
[16] Feist, ibid
[17] ibid
[18] Rosemont Enterprises, Inc. v Random House, Inc., 366 F.2d 303, 150 USPQ (BNA) 715 (2d Cir. 1966); cf. Tracy Lea Meade, (n14) 245, 247n16; Howard B Abrams (n3) 8-9
[19] Alfred Bell & Co. v. Catalda Fine Arts, Inc. 191 F.2d 99 (2d Cir. 1951)
[20] Durham Industries v. Tomy Corp. 630 F.2d 905 (2d Cir. 1980); cf. L. Batlin Son, Inc. v. Snyder 536 F.2d 486, 492 (2d Cir. 1976)
[21] Alva Studios, Inc. v. Winninger 177 F. Supp. 265, 267 (SDNY 1959)
[22] Code de la Propriété Intellectuelle 1992 Art. L111-1
[23] Thierry Mugler Parfums v SA GLB Molinard (2001) 188 R.I.D.A. 3, 8, 30, 33; cf. Sterling on World Copyright Law (J.A.L. Sterling and Trevor Cook eds., 6th edn, Sweet & Maxwell 2022) s. 1.84
[24] Société Bellure v Sociéte L’Oréal (2006) R.I.D.A. 286, [2006] E.C.D.R. 16; cf. Sterling on World Copyright Law, ibid s. 6.50
[25] ibid
[26] Cass. 1e. Civ., May 2, JCP G 1990, II, 21392, note A. Lucas; Coprosa, RIDA 1/1990, 309; cf. Daniel J. Gervais, ‘Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law’ [2002] 49 Journal of the Copyright Society of the USA 949, 969
[27] Cass. crim. May 18, 1938: Gaz. Pal. 1938, 2, p.311; Cass. Civ., May 27, 1942: S.1942, 1, 124; cf. Daniel J. Gervais, ibid.
[28] Daniel J. Gervais, ibid; cf. CA Paris, 1e ch., May 22, 1990: Légipresse 1990, I, 67; CA Paris, Dec. 18, 1924: DH 1925, 30
[29] Sawkins v Harmonica Mundi (2006) 37 IIC 116, 119; cf. Lionel Bently, Brad Sherman, Dev Gangee, and Philip Johnson, Intellectual Property Law (6th edn, OUP 2023) 126.
[30] Dirlada, BGH 26.09.1980 – I ZR 17/78
[31] cf. Daniel J. Gervais (n26) 969
[32] LG Düsseldorf 2 February 1968; cf. Sterling on World Copyright Law (n23) s. 6.108
[33] [34] BVerfG, Decision of the 3rd Chamber of the First Senate of 26 January 2005 – 1 BvR 1571/02 [4], [7]
[35] Bundesgerichtshof, 9 May 1985, GRUR 1985, 1041 – Inkasso-Programm; Andres Rahmatian ‘Originality in the United Kingdom: The Old ”Skill and Labour” Doctrine Under Pressure’ [2013] 44 IIC 4, 21
[36] Pachot, Cass. ass., 7 March 1986; Andreas Rahmatian, ibid 25
[37] cf. Independent Television Publications Ltd v Time Out Ltd [1984] FSR 64; Andreas Rahmatian, ibid 20
[38] Andreas Rahmatian, ibid 25
[39] cf. Sterling on World Copyright Law (n23) s. 2.41
[40] cf. Brad Spitz, ‘Originality of a computer program under French law’ (Kluwer Copyright Blog, 9 January 2013) <https://copyrightblog.kluweriplaw.com/2013/01/09/originality-of-a-computer-program-under-french-law/> accessed 29 April 2025
[41] Case C-604/10 Football Dataco Ltd v Yahoo UK Limited [2011] EU:C:2012:115 [AG36], [AG41]
[42] Art. 1(3), Directive 91/250/EEC of May 14, 1991, [1992] OJ L346, 61.
[43] Art. 3(1), Directive 96/9/EC of March 11, 1996, [1996] OJ L077, 0020-0028.
[44] Copyright, Designs and Patents Act 1988 s. 3A
[45] Daniel J. Gervais (n26) 960
[46] Infopaq (n1) [37], [39]
[47] Football Dataco Ltd (n40) [AG36], [AG41]
[48] Bently, Sherman, et al. (n29) 107.
[49] Infopaq (n1) [37]
[50] Case C-683/17 Cofemel – Sociedade de Vestuário SA v G-Star Raw CV [2019] EU:C:2019:721 [30]
[51] Case C-145/10 Eva-Maria Painer v Standard Verlags GmbH and Others [2011] ECR I-00000
[52] cf. Jane C Ginsburg, ‘A Tale of Two Copyrights: Literary Property in Revolutionary France and America’ [1990] Tul. L. Rev. 991
[53] Cf. Daniel J. Gervais (n26) 957-958; cf. Daniel J. Gervais, ‘Transmission of Music on the Internet: An Analysis of the Copyright Laws of Canada, France, Germany, Japan, the United Kingdom, and the United States’, [2001] 34 Vand. J. Trans. L. 1363, 1403-7.
[54] Football Dataco (n40) [AG36], [AG41]
[55] Andreas Rahmatian (n34) 31-32
[56] The Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890 [20]
[57] Temple Island v New English Teas [2012] UKPCC 1 [27], [31], [34], [53]
[58] SAS Institute Inc v World Programming Ltd [2013] EWHC (Ch) 69
[59] The Newspaper Licensing Agency Ltd v Meltwater Holding BV [2010] EWHC 3099 (Ch) [81]
[60] Bently, Sherman et al. (n29) 128
[61] THJ Systems Ltd v Sheridan [2023] EWCA Civ 1354 [23]; Lidl Great Britain Limited & Anor v Tesco Stores Limited [2024] EWCA Civ 262 [42]
[62] Bently, Sherman et al. (n29) 115-116
[63] Sheridan (n60) [24]; Copyright Designs and Patents Act 1988 s. 4(1)(a)
[64] Technomed v Bluecrest Health Screening [2017] EWHC 2142 (Ch) [89]
[65] cf. CDPA 1988 s.3(1)(b); Waterlow Directories Ltd v Reed Information Services Ltd [1992] FSR 403
[66] CDPA s.3(A); British Horseracing Board v William Hill [2005] EWCA Civ 863; cf. Directive 96/9/EC on the legal protection of databases [1996] art. 7(1)
[67] Painer (n50) [87]
[68] cf. Antiquesportfolio.com plc v Rodney Fitch & Co Ltd [2001] FSR 345
[69] cf Bently, Sherman et al. (n29) 127
[70] Painer (n50) [91]
[71] Richard Arnold, ’Walter v Lane Revisited (again)’ [2021] 2 IPQ 67
[72] ibid
[73] Bently, Sherman et al. (n29) 127
[74] cf. CDPA s. 9(3)
[75] ibid.
[76] cf. Navitaire Inc v Easyjet Airline Co & Another [2004] EWHC 1725 (Ch) [98]
[77] Patrick Goold, ‘The Curious case of computer-generated works under the Copyright, Designs and Patents Act 1988’ [2021] 2 IPQ 120, 124
[78] Sheridan (n60)
[79] Sheridan, ibid [25]-[28]
[80] cf. Patrick Goold, ‘The Curious Case of Computer-Generated Works (CGW) in THJ Systems v Sheridan’ (City Law Forum, 17 April 2024) <https://blogs.city.ac.uk/citylawforum/2024/04/17/the-curious-case-of-computer-generated-works-cgw-in-thj-systems-v-sheridan/> accessed 1 May 2025
[81] ibid
[82] cf. Marshall A. Leaffer, Understanding Copyright Law (Carolina Academic Press 2024) 125n65
[83] cf. Infopaq (n1) [27]
[84] Francis, Day & Hunter Ltd v Twentieth Century Fox Corp [1939] UKPC 68, 123-4
[85] Infopaq (n1) [45]; cf. Meltwater Holding BV (n58) [19]-[22]
[86] Zonen Endstra v Nieuw Amsterdam [2008] EIPR N73; cf. Bently, Sherman et al. (n29) 119
[87] Estelle Derclaye, ‘Assessing the impact and reception of the Court of Justice of the European Union case law on UK copyright law: what does the future hold?’ [2014] <https://nottingham-repository.worktribe.com/output/998300/assessing-the-impact-and-reception-of-the-court-of-justice-of-the-european-union-case-law-on-uk-copyright-law-what-does-the-future-hold> accessed 29 April 2025
[88] cf. Sheridan (n60); Tesco v Lidl (n60)
[89] cf. Infopaq (n1) [27]
[90] CDPA s.1(1)
[91] Lucasfilm Limited v Ainsworth [2011] UKSC 39
[92] Poorna Mysoor, ‘Does the UK Really Have a ’Closed’ List of Works Protected by Copyright?’ [2019] 41 EIPR 474, 479
[93] cf. Elenora Rosati, ‘Can the taste of a cheese be copyrighted?’ (OUP Blog, 26 April 2019) <https://blog.oup.com/2019/04/taste-cheese-copyrighted/> accessed 29 April 2025
[94] cf. Ibid; Poorna Mysoor (n91) 475-479; Bently, Sherman et al. (n29) 66
[95] cf. Football Dataco (n43)
[96] Infopaq (n1) [27]
[97] Urteil des I. Zivilsenats vom 13 November 2013 – I ZR 143/12 – Geburtstagszug; cf. Birgit Clark, ‘BGH abandons distinction between works of applied and purpose free art’ (The IPKat, 16 November 2013) <https://ipkitten.blogspot.com/2013/11/bgh-abandons-distinction-between-works.html> accessed 29 April 2025
[98] cf. Infopaq (n1) [27]; Cofemel (n49) [37]
[99] cf. Bently, Sherman et al. (n29) 127
[100] Francis, Day & Hunter Ltd (n83) 123-4
[101] Clochemerle Lyon, 1 Ch., 5 July 1979 (2979) 102 RIDA 147; cf. Sterling on World Copyright Law (n23) s.6.157(n171)
[102] Infopaq (n1) [45]
[103] Société Bellure v Société L’Oréal CA Paris Ch. 4, 25 January 2006; cf. Estelle Derclaye, ‘One on the nose for Bellure: French appellate court confirms that perfumes are copyright protected’ [2006] JIPLP 377
[104] Bsiri-Babir v Harmaan et Remir, Cass. 1 civ. 13 JUne 2006, [2006] ECDR 380
[105] Case C-310/17 Lenova Hengelo BV v Smilde Foods BV [2018] ECLI:EU:C:2018:899; cf. Sterling on World Copyright Law (n29) 6.53
[106] Cofemel (n49) [31]
[107] C Seville, ‘Copyright in Perfume: Smelling a Rat’ [2007] 66 CLJ 49, 51
[108] Infopaq (n1) [27]; cf. Geburtstagszug (n96)
[109] Clochemerle Lyon (n100); Société Bellure (n102); Bsiri-Babir (n103)
[110] cf. Bently, Sherman et al. (n29) 127
[111] National Business Lists v. Dun & Bradstreet, Inc. 552 F. Supp. 89, 95 (N.D. Ill. 1982)
[112] Feist (n2) 350
[113] ibid, 351, 357-8, 362; cf. 17 U.S.C. § 102(a)
[114] ibid, 348; cf. BellSouth Advertising & Publishing Corp. v. Donnelley Info. Publishing Inc., 999 F.2d 1436, 28 USPQ.2d. (BNA) 1001 (11th Cir. 1993), cert. denied, 114 U.S. 943 (1994).
[115] Feist (n2) 471-2
[116] Tracy Lea Meade (n14) 256-267
[117] ibid, 267-8
[118] U.S. Payphone, Inc. v. Executives Unlimited of Durham, Inc., 931 F.2d 888 (4th Cir. 1991)
[119] ibid; Feist (n2) 362
[120] Hodge E. Mason and Hodge Mason Maps, Inc. v Montgomery Data, Inc., et al. 967 F.2d (5th Cir. 1992); Tracy Lea Meade (n14) 268
[121] A.V. v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009)
[122] AHRN, LLC v. Realtor.com, Inc., 983 F.3d 664 (4th Cir. 2020)
[123] Southern Credentialing Support Services, LLC., v. Hammond Surgical Hospital, LLC., No. 18-31160 (5th Cir. 2020) 4; cf. Eng’g Dynamics, Inc. v. Structural Software, Inc. 26 F.3d 1335, 1344 (5th Cir. 1994); Eng’g Dynamics, Inc. v. Structural Software, Inc. 46 F.3d 408, 409 (5th Cir. 1995)
[124] cf. BellSouth (n113)
[125] Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 678, 682 (2d Cir. 1988)
[126] West Publ’g Co. v. Mead Data Central, Inc. 799 F.2d 1219, 1223, 1226-1227 (8th Cir. 1986)
[127] Bender (n124) 707-8; cf. Thomson Reuters Enterprise Centre GmbH and West Publishing Corp. v. Ross Intelligence Inc. 2025 WL 458520 (Case No. 1:20-cv-613-SB, US District Court, D. Delaware) 2-3
[128] cf. Feist (n2)
[129] cf. Naruto, a Crested Macaque v. David John Slater 888 F.3d 418 (9th Cir. 2018)
[130] cf. Leaffer (n81) 125-126
[131] U.S. Const. Art. I §8 cl. 3; cf. Daniel J. Gervais (n26) 957
[132] cf. National Business Lists (n110) 95
[133] cf. Jane C Ginsburg (n51); Tracy Lea Meade (n14) 248-9
[134] Kregos v Associated Press, 937 F.2d 700 (2d Cir. 1991).
[135] ibid, 707; cf. Tracy Lea Meade (n14) 261
[136] Tracy Lea Meade (n14) 262; Feist (n2) 362-3; Kregos (n133) 704
[137] cf. Thomas G Field, Jr ‘Copyright Protection for Perfumes’ [2004] 45 Idea J.L.T. 19; Yashika Nagpal, ‘Perfume as an Artistic Expression: Scope of Intellectual Property Rights in Perfume‘ (Fashion & Law Journal, 3 Oct 2021) <https://fashionlawjournal.com/perfume-as-an-artistic-expression-scope-of-intellectual-property-rights-in-perfume/> accessed 1 May 2025
[138] ‘Congressional Powers and Limitations Inherent in the Copyright Clause‘ [2007] 30 Colum. L.J. & Arts 259, 276 (Tony Reese).
[139] Feist (n2) 363
[140] Cofemel (n49) [31]
[141] Kregos (n133) 704
[142] Mazer v Stein, 347 U.S. 201, 214 (1954)
[143] Lenova Hengola (n104) [23]
[144] Catalda (n19) 103
[145] Tomy (n20)
[146] Winninger (n21) 267; Feist (n2) 363
[147] Leaffer (n81) 71
[148] Feist (n2) 362
[149] ‘Final Report of the National Commission on New Technological Uses of Copyrighted Works’ (’CONTU Final Report’) (1978) 45
[150] ibid
[151] Patrick Goolde (n79)
[152] Leaffer (n81) 125, 125n64
[153] Infopaq (n1) [27]; Sheridan (n60); Feist (n1)
[154] cf. Ladbroke (n4); Catalda (n19)
[155] Infopaq (n1) [27]
[156] cf. Abrams (n3) 972-3
[157] Pachot (n35); Rahamatian (n34)
[158] cf. Sheridan (n60) [24]
[159] Feist (n2) 348; cf. Andreas Rahmatian (n34) 15
[160] Andreas Rahmatian (n34) 30-32
[161] cf. Lenova Hengola (n104) [23]
[162] cf. Geburtstagszug (n96); Infopaq (n1) [27]; Cofemel (n49) [37]
[163] cf. Andreas Rahmatian (n34) 32
[164] cf. Rebecca Dimaridis, ’Feist: the feisty copyright debate’ [2010] 5 Journal of Intellectual Property Law and Practice 818, 820
[165] cf. Bently, Sherman et al. (n29) 127
[166] ibid
[167] cf. Patrick Goolde (n79)
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