The elephant in the room of EU copyright originality: Time to unpack and harmonize the essential requirement of copyright

Abstract The dividing line between the artistic and literary heritage privatized by copyright and the public domain depends on just one word which is completely alien to the traditional legal jargon: originality. As if it were not enough the essential requirement of copyright is highly polysemic, being its meaning also sensitive to the specific temporal and geographical context. For instance, the same interior design for make‐up stores has been reputed original in Italy but not in France and Portugal. The European legislator has deeply regulated several aspects of copyright, but paradoxically it is laconic on the fundamental element triggering the exclusive right: a work is original if it reflects the author's own intellectual creation. Although the CJEU played a pivotal role in filling this gap through a string of decisions, national judges are still uncertain on the relevant factors for the originality assessment, as witnessed by three new references for preliminary rulings. The different approaches to the originality requirement could be problematic for the well‐functioning of the artistic and cultural markets considering the potential heterogeneous legal status of the same creation, which might be under copyright protection in one Member State while in the public domain in another one. This could prejudice rights clearance processes, including the latest one regarding text and data mining for machine learning purposes advocated by a line of scholars. By elaborating on settled European and national case‐law, this paper extracts some metrics for ensuring legal certainty on the interpretation of the originality requirement. These coordinates could be incorporated in a wider European intervention harmonizing copyright law, keen to the Wittem Group project. Finally, it argues that the idea of introducing copyright formalities would also ensure more legal certainty on the status of intellectual works since the computational analysis of voluntary registrations could become a useful tool for predicting the originality of future works.