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RIDA 250 | 10-2016

Doctrine

Corruption of the concept of originality in literary and artistic property law – the advent of soft focus

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Originality is the cornerstone of literary and artistic property, the necessary and sufficient condition for protection. Yet the legislator’s silence and the numerous definitions forged by the courts over the centuries have made it a slippery concept and above all a much abused one.Indeed, originality, traditionally understood as the “stamp of the author’s personality”, which is coherent when dealing with the fine arts, has been used to grant protection to new categories of works based on an industrial rationale and increasingly detached from traditional artistic considerations.To do so, the concept of originality has been corrupted so that it fits the subject matter to which it is required to apply. Under the influence of French case law and European Union law, it has thus become a polysemic and imprecise concept, so much so that it seems to be devoid of substance today.Hence excessive pragmatism has given rise to bloated protection jeopardising the coherence of literary and artistic property law. To break the spiral, it seems essential therefore to rethink the criterion underpinning the protection of literary and artistic property.