How does the EU Law protect literary works and their translations?

The EU legal framework for the copyright has been established through a number of directives. However, it does not provide for a list of protected works as enshrined in the Berne Convention. With regard to the question of originality of the work, the EU law gained clarity over time through the recognition of some specific criteria.

Legal protection of databases

Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases established a dual system of database protection: (1) a sui generis right granted to database makers, valid for 15 years, to protect their work, irrespective of its originality. This protection applies on the condition that substantial financial, technical or human investment was made in establishing the content of the respective database; (2) the harmonized copyright law that may apply to the structure of databases and with regard to the originality of the content. Directive 96/9/EC provides for that no criterion other than originality in the sense of the author’s intellectual creation should be applied to determine the eligibility of a given database for the copyright protection, and that in particular no aesthetic or qualitative criteria should be applied. The scope of protection of databases had not been clarified until the respective case-law of the Court of Justice of the European Union (CJEU) was established.

Ryanair vs. PR Aviation

In its judgment in Ryanair vs. PR Aviation on the use by PR Aviation of data from the Ryanair’s website for commercial purposes, the CJEU held that Directive 96/9/EC must be interpreted in this way that it does not apply to a database that is not protected under the Directive or under the copyright law, or by the sui generis right. In consequence, Article 6 para. 1, Article 8 and Article 15 do not preclude the limitation to use the database by third parties, which is introduced by the creator in the way of an agreement – without prejudice to the applicable national law.

In the context of a dispute concerning the application of a search engine that allows for searching third party websites from the webpage containing collections of ads on car sales , the CJEU had to answer the question whether within the meaning of Article 7 para. 1 of Directive 96/9/EC a secondary use (making available) by a third party of all or a substantial part of the content of the online database made available on the website occurs when the third party through a search engine allows the public for searching within the content of the database. According to the CJEU, Article 7(1) of Directive 96/9/EC must be interpreted as follows: an entity that provides on the Internet a targeted search engine, makes reuse of all or a substantial part of the content of a database protected under Article 7 of Directive 96/9/EC, if the word-oriented search engine meets conditions as specified in this judgment.

Regarding the dispute concerning intellectual property rights to the fixture lists of the English and Scottish soccer leagues , a question was raised concerning the interpretation of the term “database” under Directive 96/9/EC. According to the CJEU, on the basis of this Directive a database is protected by the copyright, provided that the selection or arrangement of the data that this database contains constitutes an original expression of the creative freedom of the database author. The evaluation in this regard is the domain of a national court .

Harmonization of certain aspects of the copyright and related rights in the information society

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of the copyright and related rights in the information society was adopted in order to transpose into the European Union law the general international obligations in this matter. Its objective is to harmonize certain aspects of the copyright “in the information society”, which stresses the digital character of the Community. The Member States are required to implement a catalogue of exclusive rights , i.e. (1) reproduction right – to authorize or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part; (2) right of communication to the public – to authorize or prohibit any communication of works to the public, by wire or wireless means, including making works available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them; (3) distribution right – to authorize or prohibit any form of distribution to the public. Directive 2001/29/EC provides for an exhaustive catalogue of optional exceptions that the Member States may decide to implement into their national law . The Directive does not refer to the originality criterion. However, the CJEU clarified the originality requirement concluding that a work which is original in the sense that it is the author’s own intellectual creation, is protected as work in the meaning of the Directive . To generalize the existing definition of originality contained in the EU Directives, the CJEU relied on the Berne Convention and on the notions of “work” and “intellectual creation”.

Enforcement of intellectual property rights

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights was adopted to implement the TRIPS Agreement at the EU level. Article 11, similarly to Article 44 of TRIPS, concerns injunctions. It determines, inter alia, that where a judicial decision confirming an infringement of an intellectual property right is taken, judicial authorities may issue a permanent injunction against the infringer aimed at prohibiting the continuation of the infringement. Permanent injunctions can also be issued against intermediaries, irrespective of their potential liability. Injunctions against intermediaries constituted a new element, which had to be introduced into the national laws of the Member States. It requires the Member States to apply effective and proportionate remedies and penalties against those engaged in counterfeiting and piracy.

Term of protection of the copyrigh

Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of the copyright and certain related rights harmonizes the period of protection of the copyright and related rights. Authors of protected works benefit from the copyright during their entire life. The act establishes further duration of protection at 70 years after the death of the author or 70 years after the work is lawfully made available to the public, and for the related rights at 50 years after the event that sets the term running. After this period works fall into the public domain, which means that they can be freely exploited, reproduced or executed without any authorization. Directive 2006/116 also deals with the protection of previously unpublished works. It determines that any person who, after the expiry of the copyright protection, for the first time lawfully publishes or lawfully communicates to the public a previously unpublished work, benefits from economic protection. The term of protection is 25 years from the time when the work was first lawfully published or lawfully communicated to the public.

Legal protection of computer programs

Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs repealed Directive 91/250/EEC which was the first copyright instrument adopted according to the White Paper on completing the Single Market by 1992 . Directive 2009/24/EC created a harmonized framework for the protection of computer programs as literary works, providing for economic rights and limitations in order to contribute to the proper functioning of the internal market. It recognized circumstances when an unauthorized translation is indispensable to obtain necessary information to achieve the interoperability of an independently created program with other programs . It provides for that a computer program must be protected if it is original in the sense that it is the author’s own intellectual creation. What is more, no other criteria are to be applied to determine its eligibility for protection . In determining whether or not a computer program is an original work, no tests as to the qualitative or aesthetic merits of the program should be applied.

Permitted uses of orphan works

Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works defines orphan works as works like books, newspapers, magazine articles and films which are still protected by the copyright but whose authors or other right holders are unknown or cannot be located or contacted to obtain copyright permissions. Directive 2012/28 establishes common rules of digitization and online display of such works and calls the Member States to provide for necessary measures to gather relevant information in a single publicly accessible online database established and managed by the Office for Harmonization in the Internal Market.

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Joanna Osiejewicz (2017), The Right of Translation in International and European Union Law: a Case of New Technologies, W: A. Guskos, J. Rybicki, I. Gawłowicz (red.), MEDEA 2016 Summa Technologiae : Fourth International Symposium on Art/Science/Technology, Odesa : Feniks Publishing, p. 127–135.

©2018 by joannaosiejewicz.