Research Handbooks in Intellectual Property series
Edited by Estelle Derclaye
Chapter 6: From Idea to Fixation: A View of Protected Works
5 The requirement of originality Ramón Casas Vallés 1. Introduction The requirement of originality is common in copyright. Overarching, sine qua non, essence of copyright, touchstone, cornerstone etc. these are terms often used by specialists. It is understandable, originality being the criterion or concept that normally defines the borders of this institution, both internally (to distinguish copyright from neighbouring rights – where admitted) and externally (to distinguish it from other forms of protection – proprietary or not – of intangible goods). It is also used to establish the degree of protection, albeit this may cause some problems to the extent that it implies fragmenting a regime which is theoretically envisioned as unitary, hence without granting more or fewer rights depending on the degree of originality. In any case, both the law and the case law agree to grant it a decisive role. Originality is the evidence and materialization of authorship and what justifies the granting of copyright. Paraphrasing Plato’s Academy motto ‘Let no one ignorant of geometry enter here’, the threshold of Copyright’s citadel could read: ‘Let nothing non-original enter here’ . . . although originality, like geometry, can be ultimately variable. The central role assigned to the requirement of originality does not correspond to the doubts it generates. This is a striking and uncomfortable issue. On the other hand, courts have been relatively at ease when dealing with this requirement, under the interpretative latitude afforded by imprecise legal terms. For judges – and others – the difficulty is not deciding but rather explaining it. To...
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