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Opinion of Advocate General Spielmann delivered on 26 June 2025

Opinion of Advocate General Spielmann delivered on 26 June 2025

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Case date
26 juni 2025

Uitspraak

Provisional text

OPINION OF ADVOCATE GENERAL

SPIELMANN

delivered on 26 June 2025 (1)

Case C‑649/23

Institutul de Istorie şi Teorie Literară „G. Călinescu”

and

Fundaţia Naţională pentru Ştiinţă şi Artă

v

HK, as heir of TB,

VP,

GR

(Request for a preliminary ruling from the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania))

( Reference for a preliminary ruling – Copyright and related rights – Directive 2001/29/EC – Article 2 – Reproduction right – Critical edition of a pre-existing work aimed at reconstructing a Latin-language manuscript – Concept of a ‘work’ – Observance of copyright )






 Introduction

1.        Authors’ works have not always been protected. Although the development of the printing press enabled the first rights to exploitation of works to be granted to printers under licence, (2) the ‘Statute of Anne’ of 10 April 1710 (3) is considered to be the first piece of legislation protecting the interests of authors. The legal construct of copyright is also to be found in certain currents of philosophical thought, from which it is clear in particular that a man who is the owner of his work can, with certain reservations, acquire a share of the common resources to which he adds that work and thereby make those resources his property. In that regard, it is natural for him to be granted rights over the ‘fruit of his labour’. (4)

2.        However, copyright is not the only right attending the life of a work. Rights related to copyright are granted to performers, producers and broadcasting organisations. They are, however, more recent than copyright because they first came into being at the time of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, done at Rome on 26 October 1961, (5) in response to the appearance of new technologies.

3.        Although it is now clear that authors of a work enjoy copyright, the classification as a ‘work’ of certain creations continues to raise many questions. Thus, in the present request for a preliminary ruling, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) is uncertain, in essence, whether the critical edition, drafted in Latin, of a literary work in Latin which has come into the public domain can be classified as a ‘work’ the reproduction of which is subject to authorisation by its author under Article 2(a) of Directive 2001/29/EC. (6)

4.        The request for a preliminary ruling relates to a dispute between the Institutul de Istorie și Teorie Literară „G. Călinescu” (G. Călinescu Institute of History and Literary Theory; ‘the IHLT’) and the Fundația Națională pentru Știință și Artă (National Foundation for Science and Art; ‘the NFSA’), on the one hand, and the heirs of Professor Dan Slușanschi, who produced the critical edition at issue, on the other.

 Legal context

 International law

 The Berne Convention

5.        According to Article 2 of the Convention for the Protection of Literary and Artistic Works, signed in Berne on 9 September 1886 (Paris Act of 24 July 1971), as amended on 28 September 1979 (‘the Berne Convention’):

‘(1)      The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

…

(3)      Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.

…’

 The WIPO Copyright Treaty

6.        The World Intellectual Property Organization (WIPO) Copyright Treaty, adopted in Geneva on 20 December 1996, was approved by Council Decision 2000/278/EC of 16 March 2000 on the approval, on behalf of the European Community, of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. (7)

7.        Article 1 of the WIPO Copyright Treaty, entitled ‘Relation to the Berne Convention’, provides, in paragraph 4 thereof, that ‘Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention’.

 The TRIPs Agreement

8.        The Agreement on Trade-Related Aspects of Intellectual Property Rights (‘the TRIPS Agreement’), which constitutes Annex 1C to the Agreement Establishing the World Trade Organization (WTO), was signed in Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994). (8) The members of the WTO, including all EU Member States and the European Union itself, are parties to the TRIPS Agreement.

9.        Article 9 of the TRIPS Agreement provides:

‘(1)      Members shall comply with Articles 1 through 21 of the Berne Convention … and the Appendix thereto. …

(2)      Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.’

 EU law

 Directive 93/98

10.      Article 5 of Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights (9) provided that ‘Member States may protect critical and scientific publications of works which have come into the public domain. The maximum term of protection of such rights shall be 30 years from the time when the publication was first lawfully published.’

 Directive 2006/116

11.      Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (10) replaced Directive 93/98 and entered into force on 16 January 2007.

12.      Recital 19 of Directive 2006/116 states that ‘the Member States should remain free to maintain or introduce other rights related to copyright in particular in relation to the protection of critical and scientific publications. In order to ensure transparency at Community level, it is however necessary for Member States which introduce new related rights to notify the Commission’.

13.      Article 1 of that directive, entitled ‘Duration of authors’ rights’, provides, in paragraph 1 thereof, that ‘the rights of an author of a literary or artistic work within the meaning of Article 2 of the Berne Convention shall run for the life of the author and for 70 years after his death, irrespective of the date when the work is lawfully made available to the public’.

14.      Article 5 of Directive 2006/116, entitled ‘Critical and scientific publications’, provides that ‘Member States may protect critical and scientific publications of works which have come into the public domain. The maximum term of protection of such rights shall be 30 years from the time when the publication was first lawfully published’.

 Directive 2001/29

15.      Under Article 2 of Directive 2001/29, entitled ‘Reproduction right’:

‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:

(a)      for authors, of their works;

…’

 Romanian law

16.      Article 16 of Legea nr. 8/1996 privind dreptul de autor și drepturile conexe (Law No 8/1996 on copyright and related rights) of 14 March 1996, in the version in force in 2001, (11) provides that ‘the author of a work has the exclusive economic right to authorise the translation, publication in collections, adaptation and any other alteration of his work resulting in a derivative work’.

17.      Under Article 8 of Legea nr. 8/1996 privind dreptul de autor și drepturile conexe (Law No 8/1996 on copyright and related rights) of 14 March 1996, in the version in force in 2015 and in the version currently in force:  (12)

‘Without prejudice to the rights of the authors of the original work, copyright shall likewise subsist in derivative works created on the basis of one or more pre-existing works, namely:

(a)      translations, adaptations, annotations, documentary works, arrangements of music and any other transformation of a literary, artistic or scientific work that entail creative intellectual work;

(b)      collections of literary, artistic or scientific works, such as encyclopaedias, anthologies and collections and compilations of protected or unprotected material or data, including databases, which, by reason of the selection or arrangement of their subject matter, constitute intellectual creations …’

18.      According to Article 23 of that law, ‘the creation of derivative works, for the purposes of this Law, means the translation, publication in collections, adaptation and any other transformation of a pre-existing work, if that transformation constitutes an intellectual creation’.

 The facts, the main proceedings, the question referred for a preliminary ruling and the procedure before the Court

19.      Professor Slușanschi produced a critical edition, drafted in Latin, of a work in Latin by Prince Dimitrie Cantemir which has come into the public domain and the title of which is translated in Romanian as ‘Istoria creșterilor și a descreșterilor Curții Othman[n]ice sau Aliothman[n]ice de la primul început al neamului, adusă până în vremurile noastre, în trei cărți’ (History of the rise and fall of the Ottoman court from the origins of the lineage to the present day, in three books) (‘the Slușanschi critical edition’). That critical edition was first published in 2001 by the publishing house Amarcord de Timișoara (Romania), followed by a second edition in 2008, revised and corrected by Professor Slușanschi, published by the publishing house Paideia (Romania), with re-issues in 2010 and 2012.

20.      Prince Dimitrie Cantemir’s Latin manuscript, on which the Slușanschi critical edition was based, was discovered at the University of Harvard (United States of America) in 1984. For the first edition, Professor Slușanschi used the facsimile published in Romania in 1999. For the second edition, he used photographic copies provided by the University of Harvard.

21.      Besides the Slușanschi critical edition in Latin, Dimitrie Cantemir’s work was also published in Romanian in a translation by Professor Slușanschi. In order to do so, the professor referred to the Latin text produced by his critical edition, in its revised and corrected form.

22.      In 2013, following the death of Professor Slușanschi, TB and VP, as his heirs, assigned to the IHLT the right to use Professor Slușanschi’s transcriptions and translations relating to various texts by Dimitrie Cantemir – including the Slușanschi critical edition – for the purpose of publishing an edition of the complete works of Dimitrie Cantemir. Subsequently, the IHLT made Professor Slușanschi’s works available to the NFSA.

23.      In 2015, the NFSA published, in a bilingual two-volume Latin and Romanian version, the work entitled ‘Dimitrie Cantemir – Istoria măririi și decăderii Curții otomane’ (Dimitrie Cantemir – History of the rise and fall of the Ottoman court), which reproduced the Latin text together with critical notes by the researchers of the NFSA.

24.      On 8 December 2015, TB and VP brought an action before the Tribunalul București (Regional Court, Bucharest, Romania) for infringement of copyright, by which they sought compensation for the material and non-material damage suffered as a result of the publication of the NFSA’s complete critical edition.

25.      On 21 December 2017, the Tribunalul București (Regional Court, Bucharest) held that the NFSA’s edition reproduced the Slușanschi critical edition from 2001 in its entirety and that the NFSA’s edition had also used additions or corrections, unpublished at that time, which Professor Slușanschi had made to his own edition and which he intended to use in the future. However, reference was made to Professor Slușanschi only in footnotes. Consequently, the Tribunalul București (Regional Court, Bucharest) found that the IHLT and the NFSA had infringed (i) Professor Slușanschi’s moral right to be recognised as the author of the Slușanschi critical edition and (ii) the author’s economic rights belonging to his heirs.

26.      Following an appeal by the IHLT and the NFSA, on 7 April 2021 the Curtea de Apel București (Court of Appeal, Bucharest, Romania) varied in part the judgment of the Tribunalul București (Regional Court, Bucharest), by reducing the amount of non-material damages owed jointly and severally by the IHLT and the NFSA, but upholding the order to pay compensation for material damage in the amount fixed. It held, in particular, that the Slușanschi critical edition had required various interventions to the original work, intellectual activity and a creative effort, and that it was therefore a ‘derivative work’ within the meaning of Legea nr. 8/1996 privind dreptul de autor și drepturile conexe (Law No 8/1996 on copyright and related rights) and enjoyed the protection provided for by that law.

27.      The IHLT and the NFSA have brought an appeal on a point of law before the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice), the referring court, contesting, in essence, the classification of a critical edition as a ‘derivative work’. They have argued that, in the case of a work of a scientific nature written in a dead language which has precise rules regarding syntax and the construction of sentences, the author does not have any free creative choices, as his sole aim is to use his professional skills to identify the textual variants that are as close as possible to the original author’s intention. Similarly, the degree of freedom of the author of a critical edition is extremely limited, if not non-existent.

28.      The referring court has doubts regarding the classification of a ‘work’ protected by copyright under Article 2(a) of Directive 2001/29 and, more specifically, regarding the two cumulative conditions that must be satisfied in that regard, namely (i) the existence of an original subject matter, meaning that it is both necessary and sufficient that the subject matter reflects the personality of its author, as an expression of his free and creative choices, and (ii) the existence of a subject matter that is identifiable with sufficient precision and objectivity.

29.      Thus, the referring court’s doubt lies in whether the author of a critical edition actually makes ‘free and creative choices’ when aiming to restore an original work in a complete, intelligible, form which adheres as closely as possible to the original author’s intention. To that end, the referring court states that the author of a critical edition consults the original manuscript, and may make corrections or additions to it in order to ensure that the meaning is maintained, together with comments and explanations regarding the choice of the appropriate terms. Although that work cannot be equated with making a copy or transcription of a facsimile of the manuscript, the referring court nonetheless questions whether those choices and the critical apparatus surrounding them reflect the creativity and ‘personal touch’ of the author of the critical edition or merely his professional skills and undeniable intellectual effort, which, according to the case-law of the Court, are nevertheless not sufficient to constitute an original work eligible for copyright protection.

30.      The referring court also questions whether a critical edition may be regarded as a creation distinct from the original work, whether, on the contrary, it is indissociable from that work, given that the purpose of the edition is to restore the text of the pre-existing work, or, as the case may be, whether only the critical notes, comments and explanations by the author of the critical edition have a subject matter that is precisely and objectively identifiable and may alone be eligible for copyright protection.

31.      In those circumstances, the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 2(a) of [Directive 2001/29] be interpreted as meaning that a critical edition of a work, the purpose of which is to restore the text of an original work, by consulting the manuscript, accompanying it with comments and the requisite critical apparatus, may be regarded as a work protected by copyright?’

32.      Written observations have been submitted by the Romanian, French and Italian Governments and the European Commission. The IHLT and the Commission also presented oral argument at the hearing held on 19 March 2025.

 Analysis

 Preliminary observations

33.      By its question, the referring court asks, in essence, whether Article 2(a) of Directive 2001/29 is to be interpreted as meaning that the critical edition of a work which has come into the public domain, (13) the purpose of which is to reconstruct the text of that work, accompanying it with comments and the requisite critical apparatus, may be regarded as a work the reproduction of which is subject to authorisation by its author.

34.      It may also be understood from the arguments of the parties and from the doubts expressed by the referring court that there is uncertainty as to whether, in principle, a critical edition of an original work may be classified as a ‘work’ protected by copyright under Article 2(a) of Directive 2001/29.

35.      In that regard, the Commission draws the Court’s attention to Article 5 of Directive 2006/116, which provides for a specific term of protection for ‘critical and scientific publications’ of works which have come into the public domain. It considers that the Slușanschi critical edition cannot be classified as a ‘work’ protected by copyright, within the meaning of Article 2(a) of Directive 2001/29, and suggests that the question referred be reformulated in order that the work carried out by Professor Slușanschi can be analysed from the perspective of Article 5 of Directive 2006/116.

36.      I consider, however, that there is no reason for the Court to conduct such an analysis or to reformulate the question referred in the manner suggested by the Commission.

37.      It is clear that, although Directive 2006/116 is designed to harmonise the terms of protection of copyright and related rights, as well as the starting point for the calculation of those terms, it leaves it to the Member States to regulate certain aspects of the area of related rights. Thus, it is apparent from Article 5 and recital 19 of that directive that Member States remain free to maintain or create rights related to copyright for the protection of critical and scientific publications of works which have come into the public domain. The maximum term of such protection is, then, according to the second sentence of Article 5 of that directive, 30 years from the time when the publication was first lawfully published. (14)

38.      Accordingly, first, the protection granted to ‘critical and scientific publications’ of works which have come into the public domain, within the meaning of Article 5 of Directive 2006/116, falls within the scope of related rights and not that of copyright. (15) Second, that specific protection applies only to publications covered by that provision in Member States which have established such a related right.

39.      However, in the present case, it is clear from the information in the file that Romania has not made use of the possibility to transpose Article 5 of Directive 2006/116 and has not adopted any legislative provision designed to grant specific protection under related rights to critical and scientific editions of works which have come into the public domain, which was confirmed at the hearing. (16)

40.      Article 5 of Directive 2006/116 is not, therefore, applicable to the case in the main proceedings.

41.      I would add that, whatever definition is proposed for ‘scientific and critical publications’ of works which have come into the public domain and which enjoy protection under related rights pursuant to Article 5 of Directive 2006/116, (17) it cannot cover works which may be classified as ‘works’ enjoying protection under copyright pursuant to Article 2(a) of Directive 2001/29.

42.      The possibility accorded to the Member States to maintain or create a related right concerning the protection of critical and scientific publications within the meaning of Article 5 of Directive 2006/116 is without prejudice to their obligation to grant authors the exclusive right to authorise or prohibit reproduction of their works under Article 2(a) of Directive 2001/29, because the latter provision constitutes a measure of full harmonisation of the corresponding substantive law. (18)

43.      Therefore, for the purposes of the present case, I shall consider in the first place, the doubts as to whether it is possible to hold that critical editions of original works can be classified as ‘protected works’ the reproduction of which is subject to authorisation by their authors under Article 2(a) of Directive 2001/29. In the second place, I shall examine more specifically whether the critical edition of a work which has come into the public domain, the purpose of which is to reconstruct the text of that work, accompanying it with comments and the requisite critical apparatus, may be regarded as a work so protected by copyright.

 The possibility of classifying a critical edition of an original work as a ‘work’

44.      I should point out that the European Union, although it is not a contracting party to the Berne Convention, is nevertheless obliged, under Article 1(4) of the WIPO Copyright Treaty, to which it is a party and which Directive 2001/29 is intended to implement, to comply with Articles 1 to 21 of the Berne Convention. (19)

45.      Under Article 2(1) of the Berne Convention, literary and artistic works include every production in the literary, scientific and artistic domain, whatever may be the mode or form of expression. That provision also establishes in paragraph 3 thereof, concerning derivative works, that, [inter alia], ‘translations … and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work’. (20)

46.      Moreover, in accordance with Article 2 of the WIPO Copyright Treaty and Article 9(2) of the TRIPS Agreement, which also forms part of the EU legal order, copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such. (21)

47.      The concept of a ‘work’ protected by copyright set out in Article 2(a) of Directive 2001/29 must therefore be understood as covering primary works and secondary works, such as derivative works created on the basis of one or more pre-existing works.

48.      A derivative work is a work which borrows from one or more original works, or incorporates all or part of a pre-existing work, and alters it or, in turn, makes from it an original creation conferring copyright protection on it. Such a work is then protected by copyright in the same way as a new work, the reasons for that new, independent, protection lying in the originality or creativity that the author of the derivative work put into his or her activity. That protection is exercised without prejudice to the copyright in the original work(s) on which the derivative work is based. (22)

49.      Moreover, there is nothing in the Berne Convention to support the finding that, in principle, a critical edition of an original work, including a work which has come into the public domain, cannot, where appropriate, satisfy the conditions required for classification as a ‘derivative work’ and enjoy copyright protection. There is also no legal basis allowing for that limitation under the EU copyright regime. (23)

50.      Such a general statement would be contrary to the intention of the EU legislature to ensure a high level of protection of intellectual property by means of copyright and related rights, which protect and stimulate the development and marketing of new products and services, which are crucial to intellectual creation and to cultural production and which enable authors, performers and producers to receive an appropriate reward for the use of their works in order to be able to pursue their creative and artistic work, which is expressly apparent from recitals 2, 4, and 9 to 11 of Directive 2001/29 and from recital 11 of Directive 2006/116.

51.      Therefore, a critical edition of an original work may be protected by copyright under Article 2(a) of Directive 2001/29 in so far as it may be classified as a ‘work’ within the meaning of that directive.

52.      In those circumstances, the question now arises whether a critical edition of a work which has come into the public domain, the purpose of which is to reconstruct the text of that work, accompanying it with comments and the requisite critical apparatus, may be regarded as a derivative work protected by copyright under Article 2(a) of Directive 2001/29.

 The critical edition of a work which has come into the public domain, the purpose of which is to reconstruct the text of that work, accompanying it with comments and a critical apparatus

53.      It follows from the wording of Article 2(a) of Directive 2001/29 that the subject of the protection of the right to authorise or prohibit reproduction enjoyed by an author is a ‘work’. As that directive makes no express reference to the laws of the Member States for the purpose of determining the meaning and scope of the concept of a ‘work’, in view of the need for a uniform application of EU law, on the one hand, and the principle of equality, on the other, that concept must normally be given an autonomous and uniform interpretation throughout the European Union. (24)

54.      According to the case-law of the Court, two cumulative conditions must be satisfied for a subject matter to be classified as a ‘work’ within the meaning of Directive 2001/29. First, the subject matter concerned must be original in the sense that it is the author’s own intellectual creation. Second, only something which is the expression of the author’s own intellectual creation may be classified as a ‘work’ within the meaning of Directive 2001/29, in the sense that a work entails the existence of a subject matter that is identifiable with sufficient precision and objectivity. (25)

 The criterion of originality

55.      It follows from the case-law that, if a subject matter is to be capable of being regarded as original, it is both necessary and sufficient that the subject matter reflects the personality of its author, as an expression of his free and creative choices. On the other hand, when the realisation of a subject matter has been dictated purely by technical considerations, rules or other constraints, which have left no room for creative freedom (26) or room so limited that the idea and its expression become indissociable, (27) that subject matter cannot be regarded as possessing the originality required for it to constitute a work.

56.      In order to determine whether that is in fact the case with a literary creation, the Court has stated that it is for the national court to ascertain whether, in drawing up the subject matter at issue, the author was able to make free and creative choices capable of conveying to the reader the originality of that subject matter, the originality of which arises, not from the words themselves considered in isolation, but from the choice, sequence and combination of the words by which the author expressed his creativity in an original manner and achieved a result which is an intellectual creation, whereas the mere intellectual effort and skill in creating that subject matter are not relevant in that regard. (28)

57.      Moreover, as the referring court has correctly pointed out, the Court has already held that computer programs, databases or photographs can be ‘works’ protected by copyright if they are original in the sense that they are their author’s own intellectual creation. The same applies to newspaper articles, in the case of which their author’s own intellectual creation is evidenced clearly from the manner in which the subject is presented and the linguistic expression. (29) As regards a portrait photograph, the Court has also stated that the photographer can make free and creative choices in several ways and at various points in its production, and therefore the freedom available to the author to exercise his creative abilities will not necessarily be minor or even non-existent. (30)

58.      On the other hand, the Court has considered that military reports which constitute purely informative documents, the content of which is essentially determined by the information which they contain, so that such information and the expression of those reports become indissociable and those reports are thus entirely characterised by their technical function, precluding all originality, are not ‘works’. (31) he same applies to the setting up of a database, the criterion for the originality of which is not satisfied where it is dictated by technical considerations, rules or constraints which leave no room for creative freedom, as the labour and skill of its author cannot as such justify the protection of it by copyright if they do not express any originality in the selection or arrangement of the data concerned. (32)

59.      However, the Court has added that a subject matter satisfying the condition of originality may be eligible for copyright protection, even if its realisation has been dictated by technical considerations, provided that its being so dictated has not prevented the author from reflecting his personality in that subject matter, as an expression of free and creative choices. (33)

60.      It follows from that case-law that the key criterion for deciding whether a subject matter is its author’s own intellectual creation is, in essence, the expression of the author’s creativity and the possibility for the author to make free and creative choices, thereby reflecting his personality.

61.      In the present case, the referring court must therefore determine whether the critical edition of a work which has come into the public domain, the purpose of which is to reconstruct the text of that work, accompanying it with comments and the requisite critical apparatus, constitutes an intellectual creation reflecting the freedom of choice and the personality of its author, so that it fulfils the requirement of originality.

62.      In that regard, it is clear from the information in the file that the Slușanschi critical edition does not amount to a mere reproduction of Prince Dimitrie Cantemir’s Latin manuscript, or of the facsimile of that manuscript. In producing that critical edition, Professor Slușanschi intervened in the original text, making corrections and additions, with the aim of reconstructing the text of the original work in a complete, intelligible, form, adhering as closely as possible to the original author’s intention.

63.      I consider that where an author attempts to reconstruct an incomplete literary work in the form which he regards as being the closest possible to that produced by the author of the original work, he cannot, in principle, be regarded as merely providing research work, skill or an intellectual effort devoid of any personal creativity. On the contrary, he may be able to choose between several options. The grammatical, lexical, literary and stylistic choices which he makes will probably be dictated, or at any rate influenced, by his years of experience, his philological expertise, his knowledge and understanding of the period in which the original work was drawn up and of the historical period covered by that work, his knowledge of the author of the original work, his style and linguistic expression, and his interpretation of what he perceives as being that author’s intention. When he calls not only upon his specialism and his knowledge of the original author, language, period, and original work, but also upon his own imagination, intuitions and sensibility in order, while aiming to remain faithful to the spirit of the original work, to invent or re-invent the lost or incomprehensible parts, the author of the critical edition produces a creative work and stamps his personality on another person’s work, so that he creates a derivative work.

64.      The comments and critical apparatus consisting of critical notes and explanations relating to any corrections, replacements of words or additions which may be necessary in order for the manuscript text to be comprehensible, and the various language versions or variants of words or expressions which have been discarded, also constitute that author’s own intellectual creation.

65.      Moreover, the originality criterion may be expressed through the composition of the critical edition, the structuring of the edition, the form given to it and the arrangement of the original text in relation to the comments and critical apparatus. (34) The author of such an edition thereby gives his ‘personal touch’ to the created work and it cannot be considered that the critical edition is indissociable from the original work.

66.      Furthermore, even assuming that the purpose of a critical edition is to reconstruct the original work appropriately, according to the conception which the person reconstructing the work in question has of that work, and that the language of that original work is characterised by precise rules regarding syntax and the construction of sentences, such constraints and the fact that the drafting of that edition was dictated by a certain number of syntactical rules are not capable in principle of excluding any originality.

67.      The situation would be otherwise if the drafting of the critical edition were purely dictated by technical interventions, rules or constraints lacking any creative freedom. It could then appear that the author of a critical edition had merely produced a slave-like reconstruction from documents so precise and complete as not to require any creative initiative. Labour and skill, however complex and painstaking, cannot, in themselves, justify protection of such an edition by copyright if they do not express any originality in the choice or arrangement of the information contained in that edition.

68.      Accordingly, depending on the circumstances, the reconstruction of a work which has come into the public domain may be likened to the creation of a derivative work which displays originality inasmuch as the author has borrowed from or incorporated pre-existing creations. To that end, it is necessary to examine what intervention by the author of a critical edition consists of as compared with the original work. (35) In that regard, it is for the national court hearing the case to take account of all the relevant aspects of the dispute in the main proceedings. (36) The type of works concerned and the specific abilities of other researchers engaged in identical or similar studies may in particular contribute to an understanding of what should be classified as an ‘autonomous work’, independently protected by copyright, and what is merely a scientific re-editing of knowledge in the public domain.

 The existence of an identifiable subject matter

69.      The Court has stated that the concept of a ‘work’ that is the subject of Directive 2001/29 necessarily entails the existence of a subject matter that is identifiable with sufficient precision and objectivity. First, the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected. So also must third parties against whom the protection claimed by the author of that subject matter may be asserted. Second, the need to ensure that there is no element of subjectivity, which is detrimental to legal certainty, in the process of identifying that subject matter means that the latter must have been expressed in an objective manner. (37)

70.      In my view, a critical edition of an original work can, as a whole, be identified with precision and objectivity. (38) It is not necessary to distinguish between, on the one hand, the parts corresponding to the original work, which may have been the subject of textual amendments, and, on the other, the comments, critical notes or explanations accompanying them in order, where appropriate, to distinguish the contributions which give rise to copyright from those which do not. A ‘detachable protection’ which is systematically granted only to comments, critical notes and explanations would run the risk of dismembering a work which is only meaningful as a whole, in particular where such comments, notes or explanations supplement or relate to a specific part of the text of the original work which they are commenting on or analysing. (39)

71.      Although the same may not apply to prefaces, introductions or conclusions, which can more easily be conceived as being ‘detachable’ from the rest of the work, it is, in any event, for the referring court to verify those elements of the work which are the expression of the author’s intellectual creation and which can be identified with sufficient precision and objectivity, whether they constitute the work as a whole or merely parts of it.

 The content of the protection

72.      Where a subject matter has the characteristics described in points 55 and 69 of this Opinion, and therefore constitutes a work, it must, as such, qualify for copyright protection, in accordance with Directive 2001/29, and it must be added that the extent of that protection does not depend on the degree of creative freedom exercised by its author, and that that protection is therefore not inferior to that to which any work falling within the scope of that directive is entitled. (40)

73.      I would add that the infringement of copyright need not consist in the complete reproduction of the work, but may consist in a partial reproduction. The various parts of a work also enjoy protection under Article 2(a) of Directive 2001/29, provided that they contain elements which are the expression of the intellectual creation of the author of the work. The possibility may not be ruled out that certain isolated sentences, or even certain parts of sentences in the text in question, may be suitable for conveying to the reader the originality of a publication, by communicating to that reader an element which is, in itself, the expression of the intellectual creation of the author of that article. Such sentences or parts of sentences are, therefore, liable to come within the scope of the protection provided for in Article 2(a) of that directive. (41)

74.      That being so, the concerns expressed by the Commission at the hearing that accepting the existence of copyright in respect of critical editions of works which have come into the public domain would amount to removing from the public domain works belonging to that domain cannot be ignored or underestimated.

75.      Recognition of copyright in a derivative literary work does not make the original works return to the private domain and does not grant the author of that derivative work any exclusive right in the original works. Exploitation of works which have come into the public domain is still possible, as they are not, or are no longer, individually protected by copyright, and therefore anyone is free to reproduce them, or to produce an adaptation of them which is different from that of the derivative work. (42)

76.      It seems important to add in that regard, for the sake of completeness, that it is clear from the case-law of the European Court of Human Rights that there can be exceptional situations in which, depending on the type of speech or information at issue, copyright must yield to the right to freedom of expression, which includes the freedom to receive and impart information enshrined in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. This might in particular be the case in a situation where the communication of the protected work contributes to a public interest debate. (43) A balance must therefore be struck between the interests involved, that is to say, on the one hand, the public interest and the need for the public to be able to freely access a work which has come into the public domain or the right to receive information and, on the other, the protection of works, including derivative works.

77.      Ultimately, although it is essential that works which have come into the public domain can be freely exploited by all, the same does not apply, in principle, to works derived from those works, which may, in particular, consist of versions which have been reconstructed, commented on or analysed. However, this has nothing to do with protecting a work which is devoid of any creativity, as a critical edition of a work which has come into the public domain can give rise to copyright only if it entails the production of an original creative work.

 Conclusion

78.      In the light of the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling by the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) as follows:

Article 2(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

must be interpreted as meaning that the critical edition of a work which has come into the public domain, the purpose of which is to reconstruct the text of that work, accompanying it with comments and the requisite critical apparatus, may be regarded as a work the reproduction of which is subject to authorisation by its author, provided that it is that author’s intellectual creation, reflecting his personality as an expression of his free and creative choices, and that it has a subject matter that is identifiable with sufficient precision and objectivity. It is for the national court to verify, in each individual case, whether that is so.