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Global Media and Communications Watch The International Legal Blog for the Tech, Media and Telecoms Industry
Posted in Copyright Diana EttigTheresa HousePatsy Wilson

TMT2020: Comparing EU and U.S. Copyright Protection Frameworks for Non-literary Texts

GMCQ WatchEditor’s note: We are excited to present this first entry in our new TMT2020 series, which reflects the key technology, media, and telecoms legal issues that are expected to impact today’s organizations and tomorrow’s marketplace. It also provides an opportunity to highlight contributions by TMT associates across our global offices and practice areas.

In today’s business world, non-literary texts are of great economic value. They often hold know-how and reflect the specific skill and competence a company offers to its customers. Thus, the question how to adequately protect non-literary, functional texts is more important than ever. In this post, we shine light on whether and to which extent copyright protection is available for this kind of texts both within the European Union and the United States.

EU Framework. Although literary works undoubtedly enjoy copyright protection under European law, the protectability of non-literary texts such as user manuals, legal texts, and advertisement slogans, can be more questionable. For instance, German courts traditionally have held that non-literary texts must fulfil higher standards for creativity than literary works like classic novels or poetry before they can be subject to the protections of copyright law. However, in a noteworthy recent decision, the Regional Court of Hamburg deviated from this established law and adopted a new rule holding that the same requirements for copyright protection apply to all works, regardless of the intended function of the text at issue. The court based its decision, inter alia, on the concept of an autonomous European definition of a copyright protected work that is independent from the legal requirements established in the Member States of the European Union. In this context, the judges relied on several decisions handed down by the European Court of Justice (CJEU) in recent years, which applied uniform, low thresholds for copyright protection to both literary and non-literary works (see CJEU, judgment of 16 July 2009, Rs. C-5/08 – Infopaq/DDF and judgment of 1 December 2011, Rs. C-145/10 – Panier/Standard).

When taking a closer look at the CJEU case law we must appreciate that the Court has not yet explicitly adopted any autonomous definition of what constitutes a “work” nor is there any legislation that defines that term under EU law. For example, the Copyright Directive 2001/29/EC does not include any provision setting forth specific requirements that a work must meet before it can qualify for copyright protection. That said, whenever the European Union has harmonized the provisions applying to particular types of works – e.g., computer programs, databases, or photographs – it has applied the same, less demanding standard for copyright protection, namely, that a work shall be protected so long as it is original in the sense that it is the author’s own intellectual creation. Furthermore, Art. 1(3) of Dir. 2009/24/EC or Art. 3(1) of Dir. 96/9/EC, for example, prohibits the application of other criteria for the determination of the work’s eligibility for protection.

Against this background, one could argue that the European legislator wants to apply the same – rather moderate – requirements for all types of works. This line of reasoning is supported by several CJEU decisions which refer, at least indirectly, to the same definition (i.e., copyright based on independent intellectual creation, rather than heightened creativity) with respect to other types of works, such as news articles (see CJEU, judgment of 16 July 2009, Rs. C-5/08 – Infopaq/DDF).

On the other hand, the CJEU has recently emphasized that the objective of the Copyright Directive 2001/29 is not to remove or to prevent any differences between the national laws. Rather, the Copyright Directive only requires the harmonization of copyright and related rights as far as it is necessary for the proper functioning of the internal European market (CJEU, judgment of 26 March 2015, Rs. C-279/13 – C More Entertainment AB/Sandberg). This raises the question of whether or not a harmonized definition of a “work” protected under copyright is of relevance for the internal market. In the case of databases, computer programs, and photographs, the European legislator apparently considered such harmonization necessary. Also, in a single European market, it is difficult to justify a system that permits a work to enjoy copyright protection in one member state, but not in another one. Thus, the better result may be for national courts to not only apply an autonomous European definition of a copyright protected work, but for this matter soon to be referred to the CJEU in order to obtain legal certainty .

U.S. Framework. By contrast, in the United States, copyright law is well-settled on these points. American copyright law is governed by the U.S. Copyright Act, 17 U.S.C. §101 et seq., which is a federal statute that pre-empts contrary state law. Furthermore, federal courts enjoy exclusive jurisdiction over interpretation of the Copyright Act; as a result, there is a robust body of federal case law that exclusively governs its meaning and application, which has clearly addressed questions of how and to what extent non-literary works are protected under U.S law.

In general, any original work of authorship is entitled to copyright protection, and this standard applies to all works regardless of genre. Rather than excluding certain kinds of works from copyright protection by reference to the purpose of the work, U.S. law applies the same standards for originality to all works. Nevertheless, there are other limitations on U.S. copyright protection that can apply with greater force to non-literary works, resulting in more limited protection against copying than applies to more expressive works. For example, U.S. law makes a distinction called the “idea/expression dichotomy” which holds that facts and ideas are not protected, but original expression of them is. Under this rule, facts and ideas cannot be copyrighted, but their original arrangement and selection is protected by copyright, Feist Publications, Inc. v. Rural Telephone Service Co., Inc,. 499 U.S. 340 (1991). This rule applies to all works, regardless of subject matter. But as a practical matter, the result of this rule is that works that are highly factual in nature, such as instructional texts, enjoy what is called “thinner” protection. This is not because U.S. law requires a higher degree of creativity for such works to qualify as a work protected by copyright. Rather, it is the natural result of the fact that greater portions of such works are factual (and thus unprotected). Under this idea/expression dichotomy, greater portions of such works can be freely copied, as compared to works that are more expressive.