On 19 March 2026, the Court of Justice of the European Union (CJEU) delivered a judgment clarifying the conditions under which intellectual contributions to pre‑existing works in the public domain may qualify for copyright protection (C‑649/23, Institutul G. Călinescu). In particular, the CJEU addressed how the established EU originality standard applies where an author’s contribution is primarily restorative or interpretative in nature, rather than aimed at the creation of an entirely new work.
The judgment largely aligns with the CJEU’s settled case law and confirms that the originality threshold for copyright protection remains relatively low, even where the author’s ambition is not to create something new, but rather to reconstruct an existing text as faithfully as possible.
The Dispute
The case concerns a critical edition of a public‑domain Latin manuscript by Prince Dimitrie Cantemir, restored and edited in the twentieth century by Professor Dan Slușanschi. His edition involved corrections, additions and a critical apparatus intended to render the text complete and comprehensible. After his death, a public institute and a foundation published a bilingual edition reproducing his text while crediting him only in footnotes. His heirs brought infringement proceedings, arguing that the critical edition constituted a derivative work protected by copyright.
In that context, the Romanian Supreme Court referred a question to the CJEU asking whether such a critical edition may qualify as a copyright‑protected “work” under Article 2(a) of the InfoSoc Directive.
The Judgment Confirms the EU Originality Standard
The CJEU begins by recalling its now well‑established definition of a “work”. Copyright protection requires (i) originality, in the sense that the subject matter reflects the author’s personality through free and creative choices, and (ii) identifiability with sufficient precision and objectivity. Neither requirement is excluded in principle for critical editions.
As regards originality, the CJEU reiterates that, in the case of a literary object, originality does not stem from individual words as such, but from how those words are chosen, combined and arranged. While texts whose expression is dictated by technical or informational constraints lack originality (e.g. military reports), literary works may be protected where originality derives from the manner in which the subject matter is presented and expressed.
Applied to critical editions, the CJEU observes that the grammatical, lexical, stylistic and structural choices made by an editor may be influenced by factors such as philological expertise, historical knowledge and the interpretation of the original author’s intentions. Originality may also be reflected in the overall composition of the edition and in the way in which the restored text is presented together with commentary and a critical apparatus.
The editor’s aim is not decisive. Seeking fidelity to the original text does not preclude originality, provided the edition goes beyond mere transcription and the editor exercised creative freedom in making interpretative choices, corrections, additions or in structuring the edition.
In the present case, the CJEU notes that the critical edition at issue went beyond the simple reproduction of the manuscript and involved interpretative choices, corrections and explanatory elements. Unless those choices were dictated exclusively by technical or rule‑based constraints, the edition therefore appears capable of meeting the originality requirement, subject to verification by the referring court.
As for the second criterion, the CJEU confirms that a critical edition may be identifiable with sufficient precision and objectivity as a whole. It is neither necessary nor appropriate to dissect it into protected and unprotected parts, particularly where the restored text and commentary form an inseparable whole. This approach eases the evidentiary burden on right holders, as originality need not be demonstrated through a meticulous mapping of each individual addition against the public domain source.
While favourable to editors and publishers, the judgment draws a clear boundary: protection covers only the editor’s own intellectual contribution and does not remove the underlying work from the public domain. The CJEU also recalls that once a work qualifies for protection, it enjoys the same scope of protection as any other work, and that infringement may arise from both full and partial reproduction of original elements.
Comments on the judgment
Read in its broader context, the judgment confirms a restrained and methodologically consistent application of the EU originality standard. The CJEU confines its analysis to the two established criteria, without introducing additional value‑based requirements. Unlike in the Mio/Konektra judgment (C-580/23 and C-795/23), the notion of a “unique” appearance plays no role in the CJEU’s reasoning.
While the CJEU does not expressly characterise the originality threshold as low, its reasoning strongly suggests that it is not materially demanding. In particular, the emphasis placed on the absence of purely technical constraints and on the existence of a margin of creative freedom indicates that originality does not require something substantial or exceptional. In this light, references to “uniqueness” in earlier case law should be understood descriptively, not as raising the protection threshold.
The judgment also reinforces the CJEU’s evidence‑based approach: what matters is whether the choices relied upon were genuinely free and reflected the author’s personal contribution. Attempts to impose stricter thresholds based on artistic merit or qualitative assessments remain incompatible with the CJEU’s settled case law.
At the same time, the CJEU’s express recognition of philological expertise and interpretative judgment slightly shifts the emphasis when compared with cases such as Brompton Bicycle (C-833/18), and may sit uneasily with approaches that seek to separate professional skill from copyright‑relevant creativity, such as that traditionally taken in the UK. Whether this reflects a context‑specific assessment for critical editions or a broader evolution in the CJEU’s approach remains open.
Overall, the CJEU confirms a balanced and predictable approach: accessible protection for genuine intellectual contributions, combined with a firm safeguard for the public domain.
For any questions or assistance, please reach out to our Intellectual Property Team | IP@simontbraun.eu – +32 (0)2 543 70 80
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