Le critère d’originalité civiliste au Royaume-Uni : une transposition inachevée

Translated title of the contribution: The Civilian Criterion of Originality in the United Kingdom: An Incomplete Transplant

Research output: Contribution to journalArticlepeer-review

Abstract

The present article focuses on the impact of the Court of Justice of the European Union case law on the UK criterion of originality, at a time when Brexit has just come into effect. Traditionally, under UK copyright law, a work was original if it was not copied, and if the author had exercised sufficient skill, labour, and judgment. According to the continental approach (at least in France and Belgium), origina- lity is a subjective notion which requires the imprint of the author’s personality. In Infopaq, the CJEU harmonized the originality criterion in the EU, holding that a work is original if it constitutes the author’s own intellectual creation. Initially, this test was compatible with both the common law and the civil law. However, in four subsequent cases, the CJEU appears to have adopted the civilian understanding of originality, which now indirectly applies in the UK.

In practice, the reactions of the UK courts to this paradigm shift have been inconsistent. Today, the notion of “author’s own intellectual creation” is starting to gain broader acceptance among UK judges. Yet, none of them has expressly adopted the continental approach, most likely because it is incompatible with the philosophy of the UK copyright system. To date, the civilian understanding of originality has therefore only been partially transplanted. With Brexit, any change is likely to come from the UK courts rather than the legislature, but no scenario can entirely be ruled out.
Translated title of the contributionThe Civilian Criterion of Originality in the United Kingdom: An Incomplete Transplant
Original languageFrench
Pages (from-to)229-250
JournalCahiers de propriété intellectuelle
Volume33
Issue number1
Publication statusPublished - 2021

Fingerprint

Dive into the research topics of 'The Civilian Criterion of Originality in the United Kingdom: An Incomplete Transplant'. Together they form a unique fingerprint.

Cite this