Summary

Copyright protects works, i.e. original literary, artistic or scientific results. The criterion of originality is one of the most central but at the same time most problematic concepts in copyright law. Defining and applying the condition of originality in Estonian copyright law is made even more difficult by the fact that the Court of Justice of the European Union (CJEU) has begun to forcefully harmonize the concept in recent years. With its decisions in the cases Infopaq, BSA, Painer and others the CJEU has interpreted the InfoSoc Directive (Directive 2001/29/EC) by extending the “author’s own intellectual creation” definition of originality, previously known in the context of computer programs, databases and photographic works, to cover all other works as well, and has given clear guidance for interpreting the named standard.

The present article looks into the theoretical meaning and practical importance of the criterion of originality, and its interpretation and application in Estonian and European copyright law. First, the functions and practical relevance of the originality criterion, including concerning the achievement of the aims of copyright protection in general, are discussed. After a theoretical introduction to the alternative approaches to defining originality, the second part of the article focuses on the relevant case law of the Estonian courts to date and the CJEU by answering the three central questions which arise in the assessment of the originality of a work. In the last part of the article, the impact of the recent decisions of the CJEU on Estonian copyright law and future case law is analysed.