Originality in EU Copyright
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Originality in EU Copyright

Full Harmonization through Case Law

Eleonora Rosati

Full harmonization of the copyright laws of EU Member States has long been a holy grail for copyright lawyers, but with the reality thus far being only limited harmonization resulting from ad-hoc legislative interventions, there are serious questions over the feasibility and indeed desirability of this goal. Notwithstanding, as this book makes eloquently clear, whilst legislative initiatives have been limited, the CJEU has been acting proactively, establishing through its decisional practice the de facto harmonization of an important principle of copyright: the originality requirement.
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Chapter 5: Challenging the UK understanding of copyright: Originality and subject-matter categorization at the forefront of the debate

Full Harmonization through Case Law

Eleonora Rosati


On 12 January 2012 Judge Birss QC (as he then was) gave judgment in Temple Island Collections Ltd v New English Teas Ltd and Nicholas John Houghton. This was an action for copyright infringement brought by the owner of copyright in a photograph of a red London Routemaster bus travelling across Westminster Bridge in London. Apart from the red bus, the rest of the photograph was black and white. The Houses of Parliament and the bridge itself were shown in grey, against the backdrop of a white sky, with no clouds visible. The photograph at stake in the present case was taken in 2005 by the managing director of Temple Islands. He manipulated the photograph on his computer using Photoshop software, taking the idea of making the red bus standing against a black and white background from Steven Spielberg’s 1993 film Schindler's List. In particular, the photograph was subject to the following manipulations: firstly, the red colour of the bus was strengthened; then, the sky was removed completely by cutting electronically around the skyline of the buildings; thirdly, some people present in the foreground of the original photograph were removed, and the rest of the image was turned to monochrome, save for the bus; finally, the whole original image was stretched somewhat to change the perspective so that the verticals in the buildings were truly vertical. The photograph was published in 2006.

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