Article written by Tobias Cohen Jehoram, De Brauw Blackstone Westbroek.
ECJ decision in the Călinescu case
The Hof van Justitie van de Europese Unie again emphasises (after Mio & Konektra) that the concept of a 'work' in copyright law is fully harmonised throughout the EU and that everywhere only two requirements apply (identifiable subject matter and an expression of free and creative choices). No higher threshold may be applied by any EU court.
On top, "it seems" to the ECJ that in this case, the required and sufficient free and creative choices have indeed been made, because of the authors efforts to "restore, by making corrections and additions, the text of the original work in a complete, comprehensible form that was as close as possible to the intention of its author" and by making "corrections, word replacements and additions which may be necessary to understand the manuscript of Dimitrie Cantemir’s work, and to the various language versions or variants of words or expressions which have been discarded". By doing so the "author seeks to restore a partially lost literary work in the form which he or she considers to be as close as possible to that drawn up by the author of the original work". That 'seems' to suffice, the ECJ says.