Сriterion of creativity (originality) as a condition of protectability of subject matter of copyright

Abstract

In the article, the author considers the question of the criterion of creativity (originality) as a condition of protectability of subject matter of copyright. It is indicated that the current civil legislation does not provide an understanding of the creative activity (originality) of the work. At the same time, the case law is based on the principle that the creative component in subject matter of copyright is presumed. Nevertheless, the question of the creative nature of the work may arise in the event of a dispute. In addition, an understanding of the criterion of creativity is necessary during the examination process.

The criterion of creativity (originality) of the work is analyzed from the point of view of the subjective approach – through the prism of expression of the author's individuality, the reflection of his personality, and objective approach, which is based on the presence of objective novelty. The author concludes that today the majority in both scientific circles and actually in the judicial practice of disclosing the criterion of creativity is carried out through the subjective approach.

The signs are given in the presence of which we can assume that the work has a creative (original) nature. It is noted that in order to recognize a work as original, there is no need for the form of expression to be absolutely original, and to have any features of previously created works (for example, citations, etc.), but only a certain level of creative individuality of the author in the work is enough.

The question of determining the level of originality of the form of expression of the work is analyzed, namely, what should be the minimum component of originality in order to recognize the existence of a creative nature and extend to the work the regime of copyright protection. It is indicated that in each case, for different types of works, the assessment of the originality of the work is different and is determined for each work separately, taking into account its features.

The study of the criterion of creativity (originality) is carried out based on a thorough and comprehensive analysis of legislation, case law, and scientific opinion that has formed on this issue. Based on the analysis of the criterion of creativity (originality) as a condition of protectability of subject matter of copyright, conclusions are made.