Journal of Intellectual Property Law & Practice, 2024, Vol. 00, No.
00 ARTICLE 1
The notion of ‘authorship’ under EU law—who
can be an author and what makes one an author?
An analysis of the legislative framework and
case law
Johannes Fritz*
1. Introduction
The question of who the author under copyright law has
already been asked in contexts of joint authorships. In
Kogan v Martin and others,1 for instance, the Court of
Appeal of England and Wales has established a set of
11 steps that need to be taken into account when deter-
mining the specific contributions necessary to identify
someone as a joint author. Furthermore, when the Anne
Frank Fonds tried to extend the copyright of the well-
known diaries of Anne Frank, the question arose, if her
father could be considered a co-author rather than just
an editor.2
Today, with the advent of Artificial Intelligence (AI),
this issue is once again in the spotlight, extended by the
question of what makes someone an author. Assessing
who can be an author and what is meant by ‘author-
ship’ is relevant in this context in order to assess whether
works created by or with the help of AI are eligible for
copyright protection and to whom the work should
The author
• Johannes Fritz is an LLM candidate in European
Intellectual Property Law at the Stockholm Uni-
versity in Sweden. He graduated from the Univer-
sity of Leipzig in Germany with a focus on Media
and Copyright Law.
*
Email: johannes.fritz2@gmail.com.
1 Judgment of the England and Wales Court of Appeal, Julia Kogan v
Nicholas Martin & other [2019] EWCA Civ 1645.
2 Doreen Carvajal, ‘Anne Frank’s Diary Gains “Co-Author” in Copyright
Move’, The New York Times (Paris, 13 November 2015). Available at https://
www.nytimes.com/2015/11/14/books/anne-frank-has-a-co-as-diary-
gains-co-author-in-legal-move.html?_r=0 (accessed 19 January 2024).
© The Author(s) 2024. Published by Oxford University Press.
This is an Open Access article distributed under the terms of the Creative Commons Attribution License (https://
creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any
medium, provided the original work is properly cited.
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Abstract
• The question of who an author can be, and what
makes one an author, has once again come to the
fore with the rise of Artificial Intelligence (AI).
Such a concept, in particular the requirements
of authorship, is not defined in the European
Union (EU) legislation though. Additionally, no
referral regarding the notion of authorship has
yet reached the Court of Justice of the European
Union (CJEU).
• This article analyses the legislation and case law
of the CJEU to identify the elements needed for
defining ‘authorship’. The analysis of international
copyright law and the EU legislation shows that
an author must generally be a human. Examin-
ing existing CJEU case law further provides indi-
cations of what makes someone an author. The
creator must (i) exercise their creative freedom by
monitoring and executing the preparation, real-
ization and finalization of the work and (ii) express
their creative act with a general authorial intent.
• Ultimately, the article attempts to rationalize these
findings to advance its own definition. Accord-
ingly, it is shown that an author is a human who,
at least to a specific extent, is exercising a subjec-
tive judgment in the composition of a work and
has control of its execution. This definition has the
advantage of including objective and subjective
criteria, allowing the assessment of cases involv-
ing multiple authors and technical aids. Regarding
AI, it helps to clarify the level and type of human
involvement required for an output to be consid-
ered a work of human authorship and therefore be
potentially protected by copyright.
2 ARTICLE
be attributed.3 In this context, in Thaler v Perlmutter,4 the
US District Court for the District of Columbia ruled that
a work created without any human involvement could not
be protected by copyright, because human authorship is
a basic requirement of copyright law.5 Recently, however,
the Beijing Internet Court held in Li v Liu6 states that
AI outputs are eligible for copyright protection. In con-
trast to the US court, the Beijing Internet Court found
that, at this stage, generative AI models do not have a
free will, but are rather tools used by humans to create. In
essence, humans are still providing the intellectual input
throughout the creation process.7
The identification of authors in this regard is, for
example, important for the calculation of the duration
of rights connected to the created works and respect
of moral rights, as well as for remunerating authors
when some of their rights are non-waivable and/or
non-transferable.8
This article examines and analyses whether the cur-
rent legal framework of European Union (EU) copy-
right laws and case law of the CJEU provide indi-
cations for a definition of ‘authorship’ and eventually
forms a definition for this term. Section 2 discusses
the analysis of the legislative framework, including
the Berne Convention (Section 2.1), the EU legisla-
tion (Section 2.2) and national legislation (Section 2.3).
Section 3 examines existing CJEU case law before
Section 4 summarizes the findings and develops an own
definition.
3 cf among others P Bernt Hugenholtz and João Pedro Quintais, ‘Copyright
and Artificial Creation: Does EU Copyright Law Protect AI-Assisted
Output?’ (2021) 52 IIC-International Review of Intellectual Property and
Competition Law 1190, 1195 et seq; Tim W Dornis, ‘Of “Authorless
Works” and “Inventions Without Inventor”’ (2021) 43 European
Intellectual Property Review 570, 570 et seq; Anne Lauber-Rönsberg and
Sven Hetmark, ‘The Concept of Authorship and Inventorship under
Pressure: Does Artificial Intelligence Shift Paradigms?’ (2019) 14 GRUR
International 570, 572 et seq.
4 Judgment of 18 August 2023 of the US District Court for the District of
Columbia, Stephen Thaler v Shira Perlmutter, Civil Action No 22–1564
(BAH).
5 ibid 8.
6 Judgment of 27 November 2023 of the Beijing Internet Court Jing 0491
Min Chu 11279; for a summary in English see: Tian Lu, ‘Chinese Court
Deems AI-Generated Image has “Copyright – Assessing the Possibly
Over-Hasty “Spring Breeze” Case’ (The IPKat, 27 December 2023).
Available at https://ipkitten.blogspot.com/2023/12/chinese-court-deems-
ai-generated-image.html (accessed 19 January 2024).
7 Lu ibid.
8 Oleksandr Bulayenko et al, ‘AI Music Outputs: Challenges to the
Copyright Legal Framework’, (2022) reCreating Europe Report, 73.
Journal of Intellectual Property Law & Practice, 2024, Vol. 00, No. 00
2. Analysis of the legislative framework
2.1. Berne convention
The Berne Convention9 does not contain a definition of
‘author’.10 Therefore, it is up to the contracting states to
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define it.11 That said, it can be argued that the word-
ing and historical context imply that only natural persons
who create a work can be regarded as authors.12 This is
supported by the Convention’s pervasive use of the term
‘author’ in reference to the creator of works and recipient
of protection. The inclusion of moral rights of Article 6bis
of the Berne Convention, explicitly granted to ‘authors’,
further highlights that the minimum standards of copy-
right protection are only activated by human acts of cre-
ation.13 This is reinforced by the recognition of IP rights
as fundamental rights.14 Human rights also support the
need for a human author. For example, the Universal Dec-
laration of Human Rights (UDHR) protects the moral
and material interests of authors who produce scientific,
literary or artistic works. Since human rights inherently
belong to human beings, the scope of authorship within
the UDHR is limited to human creators.15
2.2. EU legislation
The InfoSoc Directive16 does not contain a definition of
the term ‘author’.17 European legislation is generally silent
on the foundational requirements for what makes one
an author.18 However, various provisions of the InfoSoc
Directive provide hints of who may be regarded as an
author, namely, a human being. The author has the right
to authorize third parties to make acts of reproduction
(Article 2a of the InfoSoc Directive), acts of communica-
tion to the public (Article 3(1)) and acts of distribution
(Article 4(1)) of their works. It is questionable how non-
human authors, like animals or computers, could exercise
9 Berne Convention for the Protection of Literary and Artistic Works
(amended on 28 September 1979).
10 Eleonora Rosati, ‘The Monkey Selfie Case and the Concept of Authorship:
An EU Perspective’ (2017) 12 Journal of Intellectual Property Law &
Practice 974.
11 Paul Goldstein and P Bernt Hugenholtz, International Copyright:
Principles, Law, and Practice (3rd edn OUP New York USA 2012) 247.
12 Rosati (n 10) 974; Goldstein, Hugenholtz (n 11) 247; Hugenholtz and
Quintais (n 3) 1195.
13 Hugenholtz and Quintais (n 3) 1195.
14 Jean-Marc Deltorn and Franck Macrez, ‘Authorship in the Age of Machine
Learning and Artificial Intelligence’ (2018) 10 Center for Intellectual
Property Studies Research Paper 8.
15 Hugenholtz and Quintais (n 3) 1195; see also Bulayenko et al (n 8) 29.
16 Directive of the European Parliament and of the Council 2001/29/EC on
the harmonization of certain aspects of copyright and related rights in the
information society [2001] OJ L167/10.
17 Lauber-Rönsberg and Hetmark (n 3) 572.
18 Eleonora Rosati Copyright and the Court of Justice of the European Union
(2nd edn OUP Oxford UK 2023) 138.
Johannes Fritz ⋅ The notion of ‘authorship’ under EU law
those rights.19 The answer to this question becomes even
more complex, considering that the Court of Justice of the
European Union (CJEU) has concluded from the word-
ing of the Directive that authors have the exclusive first
right to the economic rights,20 which is impossible for the
mentioned non-human authors.
The requirement that an author must be a natural per-
son is also evident in other EU directives. For instance,
the Software Directive21 does not provide a clear def-
inition of software, but it does contain provisions that
address attribution of authorship.22 According to Arti-
cle 2(1), the author shall be the natural person or group
of natural persons who have created the program. A
similar provision can be found in the Database Direc-
tive,23 whose Article 4(1) states that the natural person
or group of natural persons who created the base are
considered as the author. In the EU, it is standard prac-
tice for concepts used across different directives to share
a common definition, unless the EU legislature specifi-
cally indicates otherwise in a particular legal context.24
Regarding the sharing of common definitions between
the Software Directive and the InfoSoc Directive, the
CJEU confirmed in Infopaq25 that the mentioned direc-
tives are based on the same principles and rules.26 The
term ‘author’ as used in the InfoSoc Directive may there-
fore be interpreted as referring exclusively to humans, as
also stated in the Software Directive.
But the provisions of the Software Directive and the
Database Directive also permit Member States to dero-
gate from this principle in their national law by allow-
ing them to designate a ‘legal person’ as the author of
a computer program or database.27 The EU copyright
law system, however, has an ‘anthropocentric’ focus,
which means that the qualification of subject matter as
a protected work requires a human intellectual effort
and authorship.28 This and the aforementioned demon-
strate that the general understanding of the concept of
an ‘author’ is that it is a human being. Only occasional
19 Rosati (n 10) 977.
20 Judgment of 12 November 2015, Hewlett-Packard Belgium SPRL v
Reprobel SCRL, C-572/13, EU:C:2015:750 (Reprobel), para 48; ibid.
21 Directive of the European Parliament and of the Council 2009/24/EC on
the legal protection of computer programs [2009] OJ L111/16.
22 Lauber-Rönsberg and Hetmark (n 3) 572.
23 Directive of the European Parliament and of the Council 96/9/EC on the
legal protection of databases [1996] OJ L77/20.
24 Judgment of 4 October 2011, Football Association Premier League Ltd and
Others v QC Leisure and Others and Karen Murphy v Media Protection
Services Ltd, C-403/08 and C-429/08, EU:C:2011:631; Rosati (n 10) 977.
25 Judgment of 16 July 2009, Infopaq International v Danske Dagblades
Forening, C-05/08, EU:C:2009:465 (Infopaq).
26 ibid; Rosati (n 10) 977.
27 Hugenholtz and Quintais (n 3) 1207.
28 Bulayenko et al (n 8) 30.
ARTICLE 3
exceptions to this principle can be accepted, which must
be explicitly stated in the law.
After all that is said, the hints resulting from the EU
legislative framework are that an author of a work has to
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be a human being. This point of reference is not sufficient
for a complete definition but may serve as a starting point.
2.3. National legislation
CJEU case law has made it clear that there must be an
EU-wide approach to, for example, the requirements of
work and originality.29 This approach must be applied
to all the fundamental requirements of copyright protec-
tion, including ‘authorship’.30 Nevertheless, many issues
of authorship are currently dealt within the national laws
of the Member States. This is particularly the case for joint
or co-authorship.31 A brief examination of national legis-
lation therefore can provide additional information about
the concept.
National laws tend to follow the principle that the
author is the individual creator of the work.32 If two or
more authors collaborate to create a piece of work and
their individual contributions cannot be distinguished,
the resulting production is considered a joint work, with
each collaborator recognized as a co-author. Additionally,
national laws usually require that the co-authors work
together in accordance with a shared design, thus consti-
tuting a ‘concerted creative effort’. If only one collaborator
is responsible for making creative decisions, the other will
be reduced to the role of ‘amanuensis’, and only the person
making creative decisions will qualify as the author.33
These findings provide two important insights. To
begin with, to be an author, the creator of the work has
to be engaged in the creative decision-making. Thinking
further, the need for a creative input gives a further indi-
cation that the author must be a natural person. To fulfil
the criteria of originality, only humans can be creative
in that sense and therefore be regarded as authors. This
thought is confirmed by, for example, Article L 113–7
of the French code de la propriété intellectuelle,34 which
says that the author of an audio-visual work shall be the
natural person or persons who carry out the intellectual
creation of that work.35
29 For ‘work’, see Judgment of 13 November 2018, Levola Hengelo BV v
Smilde Foods BV, C-310/17, EU:C:2018:899, para 40 (Levola Hengelo); for
‘originality’, see Infopaq (n 25) para 37.
30 Rosati (n 18) 137.
31 Bulayenko et al (n 8) 47.
32 ibid.
33 Hugenholtz and Quintais (n 3) 1207.
34 Loi n∘ 92–597 du 1 juillet 1992 relative à Code de la propriété intellectuelle.
35 Jane C Ginsburg, ‘The Concept of Authorship in Comparative Copyright
Law’ (2003) 52 DePaul Law Review 1063 (1079).
4 ARTICLE
3. CJEU case law
At the time of writing, no referral regarding, specifically,
the notion and scope of authorship has yet reached the
CJEU. However, an analysis of existing CJEU case law
provides guidance on who can be an author and what
makes one an author.
In Infopaq, the CJEU extended the definition of orig-
inality, which previously was only formally harmonized
for specific categories of copyright-protected subject mat-
ter, in particular computer programs, databases and pho-
tographs, with effect to the InfoSoc Directive. Accord-
ingly, for a work to be original, it must be the author’s
own intellectual creation.36 Words, in isolation, are not
as such the intellectual creation of the author. The author,
however, may express their creativity in an original man-
ner through the choice, sequence and combination of
those words and achieve a result, which is an intellec-
tual creation.37 This decision was confirmed and further
elaborated in Painer,38 according to which the author has
to express their creative abilities in the production of the
work by making free and creative choices, so that they
can stamp their work with their personal touch.39 Sim-
ilar results can be found in Brompton Bicycle,40 where
the CJEU stated that the subject matter has to reflect the
author’s personality.41 These findings imply that a human
author is a pre-condition for a copyrightable work to
exist.42 This result is further confirmed by the CJEU in
Luksan,43 where the Court attached the exclusive har-
monized rights accorded to the author in the InfoSoc
Directive to a human creator.44
The Painer decision further describes three phases of
the creative process when creating a work with the aid of
a machine: the preparation, the execution and the final-
ization.45 During the preparation stage, the photographer
has the freedom to select the background, subject’s pose
and lighting. While capturing the photograph, they can
36 Infopaq (n 25).
37 ibid para 45.
38 Judgment of 1 December 2011, Eva-Maria Painer v Standard
VerlagsGmbH and Others, C-145/10, EU:C:2011:798 (Painer).
39 ibid paras 89 and 92.
40 Judgment of 11 June 2020, SI, Bompton Bicycle Ltd v Chedech/Get2Get,
C-833/18, EU:C:2020:461 (Brompton Bicycle).
41 ibid para 26.
42 Giuseppe B Abbamonte, ‘The Rise of the Artificial Artist: AI Creativity,
Copyright and Database Right’ (2022) 43 European Intellectual Property
Review 702, 705.
43 Judgment of 9 February 2012, Martin Luksan v Petrus van der Let,
C-277/10, EU:C:2012:65 (Luksan).
44 ibid paras 39–48, 71; Hugenholtz and Quintais (n 3) 1195.
45 Christian Hartmann et al, Trends and Developments in Artificial
Intelligence – Challenges to the Intellectual Property Rights Framework (1st
edn Publications Office of the European Union Luxembourg Luxembourg
2020) Final Report for the European Commission, 7, 74.
Journal of Intellectual Property Law & Practice, 2024, Vol. 00, No. 00
opt for the appropriate framing, angle of view and atmo-
sphere that is desired. Ultimately, while choosing from
a range of development techniques, the photographer
can decide to adopt one or utilize computer software for
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editing.46
Even though these stages were initially created to find
the creative processes and therefore to examine, if a work
that is created with a device could be seen as original,
they also give some indication of what is needed to be
an author. That is because—like the concepts of ‘work’
and ‘originality’, which was, for example, confirmed in
Cofemel47 —the concepts of ‘authorship’ and ‘originality’
are also strongly interrelated. From those findings, it can
be assumed that the author is the person who moni-
tors and executes the necessary steps in those phases and
therefore exercises their creative freedom.
It also follows from the aforementioned decisions
that authors must express the creative act.48 Ideas that
have not been given shape or form are not eligible as
works. The requirement of expression implies a causal
link between an author’s creative act and the expression
thereof in the form of the work thus produced.49 This
causal link can be seen in the fact that the author already
anticipates the original features of the work during the
creative act.
Nevertheless, it is questionable to what extent the
author should preconceive or premeditate those fea-
tures.50 As pointed out earlier, the author has to mon-
itor and execute the steps in the three phases that have
emerged in the Painer decision. This suggests that the
concept of a work as ‘the author’s own intellectual cre-
ation’ requires some degree of ‘authorial intent’ rather
than merely human agency or intervention.51 Essentially,
the author needs to have a conception of the work before it
is expressed.52 However, it is questionable to what degree
the authorial intent must be present.
Human authorship is often accompanied by uninten-
tional expressions, such as haphazard paint drips. The
example of action painters, for instance Jackson Pollock
who, despite a controlled process, could not predict the
exact trajectory and points of impact of the paint, shows
46 Painer (n 38) paras 90–91; Bulayenko et al (n 8) 37.
47 Judgment of 12 September 2019, Cofemel—Sociedade de Vestuário SA v
G-Star Raw CV, C–683/17, EU:C:2019:721, para 29.
48 In its Infopaq decision, the CJEU states that ‘[…] the author may express
his creativity in an original manner […]’, Infopaq (n 25) para 45; in Painer,
it is observed that the author has to ‘[…] express his creative abilities in the
production of a work […]’, Painer (n 38) paras 89, 92; in Levola Hengelo,
the CJEU said that ‘[…] the subject matter protected by copyright must be
expressed […]’, Levola Hengelo (n 29) para 40.
49 Hugenholtz and Quintais (n 3) 1199.
50 ibid.
51 ibid.
52 ibid 1200.
Johannes Fritz ⋅ The notion of ‘authorship’ under EU law
that a work can still be protected by copyright even if it
contains unintended or unforeseen aspects. It is unlikely
that his authorship of his works would be challenged by
copyright law.53 The requirement that an author has to
preconceive all original features would therefore be too
strict and impractical.54
Another question that arises is whether the author’s
intent must expand to create something artistic. However,
answering the question affirmatively would raise some
issues. This assumption would be contrary to the guar-
antee of a high level of protection, which is, for example,
explicitly stated in Recitals 4 and 9 of the InfoSoc Direc-
tive. If it is assumed that the author needs the intention to
create something artistic, it would mean that works that
are not meant to be artistic could not be protected due to
a lack of authorship. If an academic, for example, wants
to write a legal textbook, they would not have the intent
to create an artistic work. Therefore, the person would
not be seen as an author in the sense of the EU copyright
law system and the final product could consequently not
be protected. The intention to create something artistic
would further be contrary to Articles 1 and 2(1) of the
Berne Convention, which state that not only artistic but
also literary works shall be protected.
As a result, it is sufficient that the author has a clear
conception of the work before it is expressed, while leav-
ing room for unintended expressive features, so a general
authorial intent seems to be enough.55
To sum up, an author combines the following aspects.
They need to be a natural person, exercising their creative
freedom by monitoring and executing the preparation,
execution and finalization of the work, and they have to
express their creative act with a general authorial intent.
4. Summary and own approach
There is no internationally or EU-defined term for
authorship in the legislation. However, based on the
wording and historical context of the Berne Convention,
as well as the recognition of IP rights as fundamental
rights and the protection of author’s rights under human
rights, it can be concluded that authorship is referred to
humans.
At the EU level, the copyright system has an ‘anthro-
pocentric’ focus.56 The focus on the human authorship
is supported by the standard practice that concepts used
across different directives share a common definition.
53 Jane C Ginsburg and Luke Ali Budiardjo, ‘Authors and Machines’ (2019)
34 Berkeley Technology Law Journal 344, 363.
54 Hugenholtz and Quintais (n 3) 1200.
55 ibid.
56 Bulayenko et al (n 8) 30.
ARTICLE 5
So, the concept of ‘author’ in the sense of the InfoSoc
Directive has to be the same concept as in the Software
Directive, which is a natural person or a group of natu-
ral persons. The requirement that the author must be a
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natural person is also apparent from national legislation.
From national law, it can also be assumed that the author
has to carry out the intellectual creation of a work.
What can be seen from existing CJEU case law is that
for the Court too, the author must be a natural per-
son. Furthermore, it can be assessed that the concepts
of ‘authorship’ and ‘originality’ are closely connected to
each other. If the author’s choices are sufficient to pass the
originality threshold under EU law, then the authorship
should be attributed to the human making and executing
such choices.57
This outcome raises the question of whether author-
ship and originality could be synonyms, as stated by some
scholars.58 In this context, it is argued that the EU texts
specify that Member States should not impose any addi-
tional criteria than the ‘intellectual creation’ standard to
determine protection for software, databases and pho-
tographs. As an example from national law, the French
code de la propriété intellectuelle in Article L 113–7 states
that authors of audio-visual works are natural person or
persons who realize the work’s intellectual creation. This
would indicate that the term ‘intellectual creation’ stem-
ming from selection or arrangement and authorship may
be becoming synonymous. However, the texts do not
impose selection or arrangement as a general criterion for
authorship.59 Furthermore, the author can rather be seen
as the person behind the process that produces the work
and makes it original. They are the person who carries out
the intellectual creation, which is why the focus should be
on the process of the making of free and creative choices
and executing the work, when assessing the concept of
‘authorship’.
From these findings, it is possible to extract three cri-
teria, which must be taken into account to formulate a
definition for ‘authorship’.
First, as already stated in the analysis of the legislation,
the concept of ‘author’ requires a human being. There
may be a possibility of situations in which works cre-
ated by non-human authors can qualify for protection.60
Under the copyright provisions of section 9(3) of the UK
Copyright, Designs and Patents Act, computer-generated
literary, dramatic, musical or artistic works are protected
by copyright and are attributed to the person who took
57 ibid 69.
58 Ginsburg (n 35) 1078.
59 ibid 1079.
60 Rosati (n 10) 975.
6 ARTICLE
the steps necessary to create the work.61 However, this
does not imply that a non-human entity can be consid-
ered as the author. Contrarily, in accordance with the
mentioned Act, the creator of the computer program will
be deemed the author, rather than the program itself.
Second, the natural person who should be regarded as
the author has to exercise a subjective judgment in com-
posing a work.62 This follows from the necessity of the
final work to be original, ie their own intellectual creation.
They do this in the conception stage, in which they make
free and creative choices, giving their own expression
their personal touch. To exercise the subjective judgment
in composing the work, the creator must do more than
just envisioning the general idea. The author has to elab-
orate a detailed creative plan for the work, which guides
the later execution.63
Lastly, the person has to supervise or exercise control
over the execution of the work.64 Execution of the work
means that the creator converts the plan they made in the
conception stage to a concrete work. The CJEU considers
this as necessary, as it can be seen from formulations such
as ‘author has to express his creative abilities in the pro-
duction of the work by making free and creative choices’.65
This requirement results from the fact that the EU copy-
right law only protects expressions and not just single
ideas.
For a natural person to be considered an author, it
is important that they at least participate in both steps.
Without exercising subjective judgment in composing the
work, there is a lack of creativity, which would result in
the work not being original, and without going through
the execution stage, is only an unprotectable idea.
A good visualization is provided here by cases of mul-
tiple natural persons working together. One person with-
out expertise in handicrafts has a particular idea for a
sculpture that they wish to bring to life. They engage a
sculptor to aid in the creation process, providing highly
detailed instructions, including drawings of every pos-
sible angle, which leave no room for the sculptor’s cre-
ativity. This approach to creating works, especially works
of art, is not merely hypothetical. In fact, artists like Jeff
Koons or Damien Hirst employ this method. They are
61 Although the UK is no longer a member of the EU, this provision is
mentioned as an example because of its existence before the Brexit; ibid.
62 Ginsburg (n 35) 1066.
63 Ginsburg and Budiardjo (n 53) 347.
64 Ginsburg (n 35) 1072.
65 Painer (n 38) para 89.
Journal of Intellectual Property Law & Practice, 2024, Vol. 00, No. 00
the ones who make the creative decisions and have their
work produced by other people, if not by factories.66 Even
though the sculptor did all the physical work to create
the sculpture, they cannot be considered the author. This
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is because all the free and creative choices, and so the
exercise of subjective judgment of the conception stage,
were exercised by the sculptor’s client. One could say
that the client cannot be the author as well, because of
their missing participation in the execution phase. How-
ever, for the stage of execution it is not necessary that
the author has the absolute control. It is sufficient if the
author bends external forces to his will.67 The detailed
instructions given in this example could fulfil this crite-
rion, combined with the fact that the sculptor is probably
only working strictly according to the customer’s template
and order. As a result, the customer can be regarded as the
author.
If the client, however, gives instructions that lack
detail—for example, ‘Sculpt a sheep!’—their choices can-
not be considered free or creative enough to meet the
originality threshold. The sculptor, conversely, exercises
a subjective judgment when assessing dimensions, pos-
ture and more while composing the work, leading to free
and creative choices. The sculptor is also in control of the
execution of the work. Therefore, they should be seen as
the author of the sculpture. This outcome aligns with the
conclusion of the US Copyright Office regarding prompts
used to create works with the aid of AI technologies. For
example, if a user requests the AI to compose a poem on
copyright in the style of William Shakespeare, the result-
ing work lacks human authorship. The AI technology
decides the rhyming pattern, the words in each line and
the structure of the text, resulting in the AI determining
the expressive elements of its output.68
In sum, an author under EU law is a natural person, ie
a human being who, at least to a specific extent, is exer-
cising a subjective judgment in the composition of a work
and has control of its execution.
5. Conclusion
There is no definition of ‘authorship’ to be found in the
legislative framework or the current CJEU case law. Yet,
this very case law does provide some indications about
66 See for example, David Cohen, ‘Inside Damien Hirst’s Factory’, The
Standard (28 February 2013). Available at https://www.standard.co.uk/
culture/exhibitions/inside-damien-hirsts-factory-6609579.html (accessed
22 January 2024).
67 Ginsburg and Budiardio (n 53) 368.
68 US Copyright Office, ‘Copyright Registration Guidance: Works Containing
Material Generated by Artificial Intelligence’ (Vol 88, No 51, Federal
Register, 16 March 2023) 37 CFR Part 202, 16192.
Johannes Fritz ⋅ The notion of ‘authorship’ under EU law
what has to be taken into account when evaluating, who
or what qualifies as an author. Essentially, an author must
be a natural person, so a human being, who monitors and
executes the necessary steps in the phases of the creative
process and therefore exercises their creative freedom.
The author must further express the idea. That said, an
author under EU law is a natural person, ie a human being
who, at least to a specific extent, is exercising a subjective
judgment in the composition of a work and has control of
its execution.
ARTICLE 7
All that said, the concept of ‘authorship’ is also, just
like the other foundational requirements of copyright
protection, an autonomous concept of EU law, which
needs a uniform application throughout the EU.69 It is
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therefore ultimately the task of legislation or the CJEU to
harmonize the term ‘author’ with a suitable definition.
Acknowledgements
The author would like to thank Eleonora Rosati for her
guidance and support.
69 Rosati (n 18) 137.
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Journal of Intellectual Property Law & Practice, 2024, Vol. 00, No. 00
Article
© The Author(s) 2024. Published by Oxford University Press.
doi:https://doi.org/10.1093/jiplp/jpae022