Copyright’s scope of protection under the looking glass: the pending references in Mio/Konektra and Pelham II

This short contribution discusses the AG Opinions in the pending references in Mio/Konektra and Pelham II, which both – in their own way – reckon with the recognisability requirement introduced in Pelham I in relation to the reproduction right of phonogram producers, and which more generally both address the scope of protection afforded by EU copyright law.

On the one hand, the paper takes a critical stance towards the restrictive interpretation proposed by AG Emiliou in Pelham II regarding the concept of pastiche, in spite of the negative consequences for artistic freedom that he himself acknowledges. It casts doubt on the AG’s assertion that a more permissive understanding would be contra legem and therefore could not be adopted, even if it were in the interest of safeguarding the enjoyment of fundamental rights.

On the other hand, the paper supports the introduction of a recognisability criterion in the infringement test for authorial works, as suggested by AG Szpunar in Mio. It argues that such a criterion could serve as a starting point for recognising that the reproduction right is inherently limited, thereby permitting the incorporation of existing works into new creations without authorisation where the original features of the new work are so strong that any borrowed features from the earlier work “disappear” – that is, are no longer recognisable.