Consumers’ FAQs on copyright: the principle of automaticity of copyright protection

There has been published a very useful guide for consumers and for anyone who is curious about copyright. This guide explains different things, relating to IP rights, in simple way. The project has been commissioned by the European Union intellectual property office.

The Guide aims to give ‘answers to the most frequently asked questions (FAQs) average consumers have in relation to copyright for all twenty-eight EU Member States.’ The present Summary Report highlights the convergences and differences in national copyright laws in relation to the 15 consumer questions.

Most Member States require that a work present a degree of ‘originality’ in order to qualify for copyright protection. Usually, there is no statutory definition in this regard, but courts have established a number of criteria that can be applied to an individual case; these criteria may vary from Member State to Member State.

However, many experts refer to the threshold of protection as defined by the CJEU, suggesting that a work must be the ‘author’s own intellectual creation’. Variations of that wording include ‘personal intellectual creation’ (DE), ‘original creation’ (ES), ‘own individual creation’ (LT), or the threshold of ‘peculiarity’ (AT). Some experts state that a work is original when it reflects the author’s own creative choices (e.g. DK, HR, the Netherlands (NL), AT, UK), or the author’s personality (e.g. FR).

Traditionally, the threshold of protection has been lower in copyright systems mainly based on the common-law tradition, as confirmed by the experts from Cyprus, Malta, Ireland and the United Kingdom. In Cyprus, for example, a photograph is protected when a consumer has ‘not copied it from another work. It does not further need to express creativity.’ In Malta, a photograph will be protected ‘provided that the author can demonstrate some degree of time, skill and labour in producing the photograph’.

As regards copyright protection for photographs, some criteria may suggest that a photograph is an author’s own intellectual creation: in Denmark, for example, a photographer’s creative choices may be shown by ‘such issues as the background, the subject’s pose, the lighting, the framing, the angle of view and the atmosphere created’. Creative choices can also be made by using particular developing techniques. In one of its opinions, the Finnish Copyright Council held that ‘a photo was considered original when the end-result was a dramatic feeling that the photographer had created through creative choices in his use of lighting, timing, composition and demarcation.’

Apart from copyright protection, in some Member States ‘special rights’ or related rights protection is also available for photographs (DK, DE, ES, IT, AT, Slovak Repulic (SK), FI, SE). This entails that non-original photographs or photographs with a very low degree of originality (e.g. ‘snapshots’) also enjoy protection. The scope of protection is often narrower and the term of protection is shorter.

In Spain, for example, ‘mere photographs are granted fewer rights (the exploitation rights of reproduction, distribution and communication to the public – no right of transformation, no moral rights, and no remuneration rights) and for a shorter term (25 years from its making) than photographic works’. In Germany, a related right protects simple photographs ‘to the same extent as authors’ rights’. In Bulgaria, there is a special regime for portrait photography, providing that the consent of the photographed person does not affect the copyright of the photographer.

No registration is necessary in order for copyright protection to arise. Protection usually arises ‘at the moment of creation of a work’, that is to say, usually the ‘moment of expression of the work in any objective form that allows its perception and copying’. Sometimes, the exercise of certain moral rights, for example, the right to be identified as the author or director may require prior assertion by the author.

Different possibilities for voluntary deposit or registration exist in several Member States. Such an act of ‘registration’ exclusively serves administrative or evidential purposes; it has no effect on copyright protection itself. The possibilities suggested include deposit with a notary public (BG, CZ), CRMO (CZ, EE, IT, LT), IP offices (Benelux, DE – for anonymous and pseudonymous works, ES – general IP Registry, HU, RO, SI), different public and private institutions (EL – National Library, the Parliament Library and Public Libraries, HR – Croatian Copyright Agency, IT, LT, PT, SK), online repositories/registries, or individual measures such as adding a note or sending oneself an email or a telefax or by ‘sending and receiving by registered mail a self-addressed letter containing the author’s work’.