The Court of Justice of the European Union (TEU) late received further questions for a preliminary ruling on the knowing of the grounds track.
The EU Court rather mostly points out in its case law that track is the first work, i.e. constituting the author's own intellectual creation. The assessment is crucial to the occurrence of Free and creative choices.
Practical application of these general concepts rests with national courts[1]. For eligible persons seeking protection in connection with violation of copyright, designation of the work as track is simply a fundamental matter. For only a affirmative consequence allows protection.
Questions raised by the German national Court (‘BGH’)[2] and the Stockholm Court of Appeal[3] is an expression of the doubts encountered in practice by courts erstwhile applying the TEU guidelines.
In these questions, the courts search to clarify the criteria for assessing the existence of Free and creative choices. Questions have an important, applicable procedural dimension – should the survey of originality focus on the factors already connected with the phase of the creation of the work, i.e. the creative process itself and the actual choices which the author made in creating the work, or on factors that concern only the object and consequence of the creative process?
The above doubts are closely related to the applicable problem whether the plaintiff is adequate to supply a copy of the work (books, photographs of the useful object) or whether it is essential for the court to measure in item the reasons in which circumstantial aspects of the work appear. free and creative elections author.
This problem is peculiarly evident in frequent disputes concerning objects in which creativity is subject to many method and functional constraints.
The TEU consequence will besides have a crucial procedural relevance to the challenges of evaluating works created with AI tools. In particular, the designation by the TEU that the court should only measure the result of the creative process can be a challenge in the area of evidence in court cases concerning increasingly common works created with the participation of AI.
The reflection of the jurisprudence practice, including Polish courts, leads to crucial conclusions. In cases relating to works, in particular, it is crucial to establish an appropriate procedural strategy and to complete the evidence which will enable the court to measure the existence of Free and creative choices. The absence of an initiative by the plaintiff in this respect may lead to the court accepting that the work does not meet the conditions track (although with the plaintiff's trial activity, the conclusion of the court could be different). This may consequence in a deficiency of protection by the plaintiff.
[1] As part of the preliminary questions, the TEU does not settle matters in substance. It only provides clarifications of EU law to requesting national courts.
[2] Order of BGH of 21.12.2023, I ZR 96/22
[3] Order of Svea hovrätt, Patent-och marknadsöverdomstolen of 21.09.2023, case in the TSEU under the signature C-580/23.
