There is no concept more indeterminate or better suited to the words of Saint Augustine than that of originality. “If nobody asks me, I know, if I try to explain it, I don’t know”, the saint already said.
Our Intellectual Property Law protects formally expressed original creations that may or may not be art. And in art there are works that may or may not be protected by copyright.
I have no doubt that the work “Fountaine”, by Marcel Duchamp, is not – or should not be – protected by copyright, however, as an expression of the creative freedom of its author, as a means of observation, reflection and social action is art. On the contrary, a computer program on infant nutrition is certainly not art, and yet it is protected by copyright.
Copyright (our Intellectual Property Law) will protect works of art and expressions of another type, but in both cases it must establish a threshold so that we can determine which works will pass the door of protection and which will remain outside, as mere expressions , artistic or not, but in any case not protected by copyright.
The legislator has established that to extend the protective mantle of the intellectual property law (copyright), a work must be formally expressed and must meet or add the human action of creating and the objective quality of originality as selection criteria that will allow to the creations that give the stature to enter the protective Olympus of copyright.
Creativity can be defined in many ways, but it is a human activity in which imagination builds, genius shapes new associations between known ideas and concepts, and talent produces different solutions to pre-existing approaches.
In this creative activity, the authors have chosen from among the universe of their thought those concepts and ideas that made the most sense for them, that fit with the sensations, sensibilities and feelings that guided them in the realization of their works.
This creative process starts from the manipulation of pre-existing materials, some unprotected (such as ideas, discoveries, information, trends, fashions, styles, etc.) and amortized the others, which are shared by all creators and inventors who have previously existed, who have deposited them in the common quarry of knowledge -when their rights have already been exhausted and extinguished- so that others come and use them as raw material for their ability to create.
But if up to this point the explanation sounds somewhat abstract and unscientific – a space that is not alien to us jurists and in which we move with some ease -, the thing becomes very inconsistent when we introduce the third element into the explanation. Indeed, if we add the criterion of originality to the formally expressed creation, it generally happens that the writer’s pen runs wild in a gallop that tries to make up for the lack of specificity or arguments with literary excess.
Originality is an elusive concept perhaps precisely because it means the complete opposite of what we intend to communicate.
ORriginal, it comes from ‘origin’, and its pre-romantic meaning precisely understood that original was the work that adhered to the origins, to the rules and norms established for that work. Today it is the opposite. Original no longer has to do with origin, at least in copyright. Original is what is new, what breaks, what is transgressive and what is different. And perhaps in this change of direction are part of the difficulties we have to establish what is and what is not original.
Copyright is anchored in a healthy exchange of information between those who precede and those who succeed the author. The taking of previous knowledge, its conversion into new matter and the enjoyment for a limited time by its author, configure a system -as in a Faustian pact-, which returns to society -the devil, in other words, the work afterwards. for a while. Copyright must be justified, at the very least, by contributing something new to that society that has allowed it to exclusively enjoy a tax work on common information.
Society, to protect creation, understands that it must be consistent, contribute something different, new and special to the community. Otherwise it would not make sense to grant that protection. And that is precisely the minimum threshold of originality: the contribution of something new and / or different to the society from which the raw materials have been taken to create. To the extent that the work created supposes a new, singular, fresh, interesting, critical, cultured value or, why not, fun, the pact will be balanced.
And that is originality in copyright, an objective novelty characterized by the personality of the creative action of its author, nuanced by the intervention of multiple factors depending on the work in question, the author’s freedom of action, of the creative and expressive intention of the same and of other factors that should not be taken into account but that end up affecting the concept, such as the professionalism and / or reputation of the author, the effort spent, the time invested, the echo achieved, etc.
Since the well-known Judgment of the Supreme Court of October 26, 1992 (known by jurists, of course), which distinguished between objective and subjective originality, our Courts and Tribunals have endeavored to outline that concept of originality, taking advantage of the breezes of the most authoritative doctrine, which often made the most seasoned judges embarrassed.
Far are those STS of January 30, 1996 that considered the brochure for the assembly of a bathroom screen to be protected, or that of May 13, 2002 that considered the advertisements by words to be work. Recently, the STS of February 2, 2017, has married the appeal for erring in granting the work status to a DIY catalog, due to lack of originality. It seems that we have taken the right path.
The path between one and the other has been slow. From an originality linked to the personality of the author, as in the STS of March 10, 2000 “… A singular or different reality due to the impression it produces on the consumer …” or the STS of June 3, 2002, “… a a certain appearance of peculiarity … “, it was mutating towards a more objective criterion, as in the SAP (section 15th Barcelona) of November 21, 2003” … the requirement of originality (…) must be identified with the objective novelty either rooted in the conception and in its execution, or in both, but not with the mere subjective novelty… ”; or the STS of June 24, 2004, “… consists of having created something new, which did not previously exist (…) the new creation is original, and that objective novelty is what determines its recognition as a work …”.
Criterion chiseled by the SAP (section 15th Barcelona) of September 29, 2005 “… Although traditionally the conception of subjective originality prevailed as it seemed an acceptable criterion for classical works (literature, painting, music, sculpture ..), since creation implies a certain creative height, nowadays, however, because technical advances allow a minimal contribution from the author (…) the tendency is towards the objective idea of originality, which requires novelty… ”. This is the criterion that with some fluctuation has been consolidated in subsequent sentences, until today.
In short, and by way of summary, if creating is not making something new but something your own, originality (as Goethe said) does not consist in saying new things, but in saying them as if they had never been said.