Skill & Labour (Finally) RIP?

by Daniel Gervais on Wednesday, March 7th at 6:59 PM

In a very good post, Professor Estelle Derclaye comments on the CJEU opinion in Case C-604/10, Football Dataco & others v. Yahoo UK ! & others. She believes that the Court may, especially in the wake of Infopaq, have killed skill & labour.

This is not surprising. First, Article 3(1) of the Database Directive (96/9) specifically refers to “databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation.” This was transposed almost tel quel in UK law. Second, the language is reminiscent of article 2(5) of the Berne Convention and article 10.2 of the TRIPS Agreement. That language, as I explain in an article published in 2002, is widely considered as a indirect definition of the “originality” that the works or “intellectual creations” that the Convention (and, by implication, the TRIPS Agreement) protects must possess.

In a more recent piece, coauthored with Professor Elizabeth Judge, we argue that anchoring originality in the creative choices is the correct international standard, one that was made part of constitutional law in the United States in Feist and operationalized in the Supreme Court of Canada’s opinion in the CCH case.  Those cases are discussed in detail in the two articles.

The “selection or arrangement” test points to (creative) choices not wholly dictated to the author(s) by functionality and efficiency considerations or by the tools used to create. My rule of thumb is that two authors with similar tools and in similar circumstances would likely produce different works, thus demonstrating the room for originality (creative choices).

While the decision is not perfect (which one is?), I see it as a step in the right direction for any Berne member.

Now if Australia would just do the same…

 

 
 
 

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