Term Directive 2006/116) and works of visual art in the public domain (Article 14 of the Digital Single Market Directive 2019/790). In all these Directives originality is intended as the “author’s own intellectual creation”. The InfoSoc Directive 2001/29 is based on the same principles of those directives. Thus, the work is protected under the InfoSoc Directive 2001/29 if it is original because it is its author’s own intellectual creation. The CJ has progressively intended to clarify the meaning of the expression “author’s own intellectual creation”. The “originality” requirement is only fulfilled when there is a space of freedom (Spielraum), and the author makes creative choices, namely choosing elements, its sequence, and combination (like words, figures or mathematical concepts), in an original manner9 and exercising creative freedom.10As Eleonora ROSATI11 summarizes, what is required is for the author “to express [their] creative abilities in the production of the work by making free and creative choices” so that they can “stamp the work created with [their] personal touch”.12 In fact “mere intellectual effort and skill” in creating a work are not relevant to establishing originality.13 Also, the originality criterion is not satisfied when the creation of a work “is dictated by technical considerations, rules or constraints which leave no room for creative freedom”.14 The CJ considers “originality” an autonomous concept of the EU.15 The concept of “work” as also been defined by the CJ as referring to subject matter that is “expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form”.16 The CJ considers “work” an autonomous concept of the EU. Let us make clear that thought the CJ considers “work” an autonomous concept of the European Union, the Cofemel ruling was far from being clear 9 In this sense, Infopaq, C-5/08, EU:C;2009:465, at 45; Bezpečnostní softwarová associasse, C-393/09, EU:C:2010:816 at 50; SAS Institute, C-406/10, EU:C:2012, at 67. 10 See Football Association Premier League, C-403/08 and C-429/08, Eu:C:2011:631, at 98. 11 ROSATI, Eleonora, Copyright in the Digital Single Market, Article-by-Article Commentary to the Provisions of Directive 2019/790, Oxford University Press, Oxford, 2021, pp.80-81. 12 Painer, C-145/10, EU:C:2011:798, at 89 and 92. 13 Funke Medien, C-469/17, EU:C:2019:623, at 23. 14 Cofemel, C-683/17, EU:C:2019721, at 31; Football Dataco, C-604/10, EU:C:2012:115, at 39; Brompton Bicycle, C-833/18, EU:C:2020:461, at 24-26. 15 See Funke Medien, C-469/17, EU:C:2019, 623, at 19; Cofemel, C-683/17, EU:C:2019:721, at 30.31; Brompton Bicycle, C-833/18, EU:C:2020:461, at 23. 16 In this sense, see Levola Engelo, C-310/07, EU:C:2018:899, at 40. The CJUE denied protection to a flavour, because it was too subjective to be considered a work. The same was decided in Cofemel, though it is not clear why, because in this case the subject matter was the design of G-Star Denim jeans, hoodies and T-shirts. See Cofemel, C-683/17, EU:C:2019;721, at 32. In the same sense, Brompton Bicycle, C-833/18, EU:C;2020;461, at 25. 223 HOW TO PROTECT FOOD PRESENTATION BY INTELLECTUAL PROPERTY
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