Professor Andreas Rahmatian is Professor of Commercial Law at the University of Glasgow School of Law. Originally from Vienna, he obtained his first degree in law and a PhD in Private Law from the University of Vienna, and completed another degree in musicology and history there. He holds an LLM from the University of London. He worked as an associate attorney-at-law in Vienna and qualified as a solicitor with a City firm in London before he became a full-time academic. He has been a fellow at the Institut d’études avancées in Nantes, France. His research focuses on intellectual property law and commercial law. His books are Copyright and Creativity: The Making of Property Rights in Creative Works (2011), Lord Kames: Legal and Social Theorist (2015), and Credit and Creed: A Critical Legal Theory of Money (2019).
CJLPA: Do you think all forms of creativity should be protected by the law?
Professor Andreas Rahmatian: It’s a difficult question, of course, because it depends what you mean by creativity. Here we probably talk about creativity in relation to copyright in particular, because creativity can otherwise be in relation to all sorts of things. Now the problem with copyright creativity is that it’s not necessarily dealing with artistic creativity. Obviously, artistic creativity is also part of copyright creativity, but the understanding of creativity in copyright is based on a normative definition, if not a completely clear one. Whether that is artistic creativity as an artist understands it is actually immaterial. So the question is, when you ask, ‘Should all forms of creativity should be protected by the law?’, it is already the case that non-artistic creativity is protected by the law. Whenever you have got a kind of selection or arrangement which somehow points back to some individual, then you have got, as it were, creativity in the sense of copyright as ‘originality’.
The judgment of Infopaq[1] and the following cases of the CJEU in the EU didn’t change very much the originality ideas in the UK, in my opinion. In the United States the understanding of originality is pretty much the same, but whether that original work is also artistic in any way is rather irrelevant. It [the work] can be rather trivial. That is actually immaterial for the protection. And this is how copyright laws envisage creativity—even on the Continent, where they operate with all sorts of devices to water down the (theoretically) more personal requirement of the author’s input. In theory there is an approach more geared towards creativity in the sense of artistic creativity, but in reality this is much less so. There is, for example, this nice legal concept of ‘small change’, or kleine Mü̈nze—it is really called like that in Germany—where you have works of everyday use, really ordinary works which can have some notional modicum of creativity put in, and you still get protection. Then below that level you quite often have neighbouring rights, for works which do not fulfil the required creativity level or originality level, but the neighbouring rights still protect them. Then below these, you have under certain circumstances protection against parasitical competition in the sense that you actually have a prohibition to copy someone else’s work. So you have got all sorts of protection levels, both on the Continent and in the UK (or in the common law countries), and they achieve protection in different conceptual ways.
Now some people will say ‘creativity’ also means creative investments, or even ‘creative’ accounting, which is usually illegal but perhaps also creative. So it’s very hard to pin down ‘creativity’. A typical problem is restoration work in the arts, by a picture restorer, or a restorer of musical pieces. The classical case in that area in the UK was the Sawkins v Hyperion case, 2005,[2] which shows that for copyright protection you need not be creative in the sense that you are actually creating anything new. Artistic creativity, if you go to an art school or to a conservatoire as a composer, has a tinge of novelty, but we are not interested in novelty in copyright law. So the restorer, who actually writes his counterpoint in the style of the music of the late seventeenth century, as Sawkins did, in order to restore the missing parts to produce a performing edition, did exactly not [sic] mean to be creative but faithful to the work to be restored. It’s meant to be in the style of the Baroque composer. And yet it is protected as original for copyright purposes, and there’s no doubt that this also applies on the Continent: the result in such a case would have been, and in fact was, the same, because in France, in a parallel case, Sawkins’ work was viewed as being original. That was decided under French copyright law, although the French authors’ rights system is supposed to be totally different. It’s a very nice case where we have two different legal systems with essentially the same facts, the same claim in both cases, and the same result, based on a different conceptual system. Although it may be quite difficult to appreciate this from an ‘artistic’ viewpoint, the creativity or the skill of a restorer should get protected. In fact, in France and in Italy there are quite a few cases in relation to restoration, especially in the visual arts, and there is no doubt that they get protection.