By John Wilks and Ruth Hoy

A UK High Court claim filed this week by the Ministry of Sound record label against music streaming site Spotify raises some interesting issues around the originality threshold for copyright works.

The claim, which was reported in the Guardian, alleges that the Ministry’s track listings (each a compilation of tracks by different artists) are copyright works in their own right. The Ministry allege that such copyright is infringed by playlists made available by Spotify which reproduce their compilation track listings.

It is unclear from the reports of the claim what type of copyright works are being relied on. The most obvious candidates are a database or a “compilation other than a database”. It may sound odd to describe a list of album tracks as a database, but “Database” is defined widely under EU copyright law to include any collection of independent copyright works which are individually accessible and systematically or methodically arranged.

A key issue in the claim is likely to be whether the Ministry can demonstrate that the threshold for originality of the works they rely on has been satisfied. Following the CJEU decision in Infopaq, it seems the test to be applied for all copyright works is whether the work is the “author’s own intellectual creation” (this is to be contrasted with the traditional UK test of whether some skill, labour or judgment had been expended). More recent CJEU judgments have helped clarify this test somewhat, stating that the creator of the work must express his “creative ability in an original manner by making free and creative choices”, and thus “stamp his personal touch”. On the basis of this (and given there is a wide range of possible track choices so the compiler’s choice is quite free and will presumably be based mainly on aesthetic considerations), one might think that the Ministry have a reasonable chance of satisfying the test. They will not however be helped by recital 19 of the EU Database Directive, which provides that “as a rule, the compilation of several recordings of musical performances on a CD does not come within the scope of this Directive… because, as a compilation, it does not meet the conditions for copyright protection…”.

Businesses involved in creating compilations (whether of music, or of other material, such as short stories, photographs or video clips) will watch this case with interest, as it has important ramifications for the feasibility of such businesses in the face of digital content sharing platforms like Spotify. They should also ensure that the creative effort they expend in creating their compilations is clearly documented.