Proving Copyright Protection and Infringement: Lessons from the CJEU

Since its Infopaq case, for a decade the Court of Justice of the European Union (CJEU) has been harmonizing the requirements for copyright protection in the EU, leading to an abundant literature discussing the multiple facets on the concepts of “work”, “originality” and “expression” shaped by the Court. However, the issues related to the proof of such protection were apparently left out the judicial harmonization and consequently, out of the debates in the Academia, perhaps because many assumed that these issues fall into the realm of the procedural autonomy of the Member States. Yet in the practice, these issues are complicated and both national copyright judges and lawyers are increasingly seeking guidance in relation thereto. In this chapter, leaning on the CJEU case law beyond copyright law, we suggest that the law of evidence as to the requirements for copyright protection and infringement is actually not left untouched by the harmonization. To the opposite, we suggest that the CJEU will inevitably engage in shaping (some) aspects thereof in the future. Considering in particular the extensive resort to the Charter of Fundamental Rights and the “fair balance” doctrine developed by the CJEU in the field of copyright, we will try to outline this harmonization to come. In the meantime, we will also propose a blueprint for proving copyright protection in keeping with this doctrine. This will provide some food for thought to those in search of making concrete sense of the evasive “originality” criterion.