Originality in Spanish Copyright Law

This contribution examines how originality as a prerequisite for securing copyright protection is conceived in Spanish copyright law. The Spanish Copyright Act does not define originality, leaving its interpretation to the Spanish Supreme Court and lower courts. Over time, these judicial bodies have formulated and employed varying interpretations of originality. Traditionally, courts have oscillated between objective and subjective standards for originality and have also established different originality thresholds based on the nature of the creative subject matter under consideration. In 2021 the Spanish Supreme Court fully embraced the definition of “work” provided by the Court of Justice of the European Union (CJEU) for the assessment of originality. At present, the criteria developed by the CJEU are generally used by courts in Spain, albeit with some qualifications for certain types of works. This contribution scrutinizes the recent application of this newly harmonized standard of originality to various categories of creative works, shedding light on the evolving landscape of copyright protection in Spain.