ليتوانيا

Intellectual property law

Regarding the (in) recognition of a reconstructed archeological costume as a work protected by the Law on Copyright and Related Rights and co-authorship

The applicant asked the court to recognise her authorship of the archaeological costumes of the Baltic tribes and their collections and the wall calendars for the Lithuanian and Curonian tribes, and to order the defendants who have infringed the applicant’s exclusive copyright to pay compensation for pecuniary and non-pecuniary damage. The Court of First Instance ruled that the applicants’ reconstructions of clothing, jewellery, headgear and other items into a single costume may be regarded as an author’s work while the Court of Appeal did not find that the applicant had created an original author’s work within the meaning of the Law on Copyright and Related Rights.

The Court of Cassation stated that the objects of copyright are listed in Article 4 (2) of the Law on Copyright and Related Rights, including works of applied art (Article 4 (2) (10) of the Law on Copyright and Related Rights). The doctrine of law states that a reconstructed archaeological costume is a work of applied art. The most common works of applied art are in blacksmithing, jewellery, furniture, porcelain, graphics, textiles, leather and other industries. These works are protected by copyright in the same way as other works if they are the original result of a person’s personal creation. The Court of Cassation held that the fact that the term “reconstructed” (or “restored”) is used to describe a specific object (including an archaeological costume) cannot lead to its (in) recognition as an object of copyright. In each individual case, it must be decided according to whether the object meets the result and originality criteria of creative activity. Originality is assessed according to the specific object and its nature. Since the determination of originality is a question of fact, therefore, in the event of a dispute, it is for the court to determine this by assessing the evidence relevant to the issue. The Court of Cassation noted that the original result of a creative activity is considered a creation and protected regardless of its artistic value. The Court of Cassation also noted that producing a creation does not depend on whether or not a corresponding copyright order or other contract has been concluded. A creation does not become original because the originality has been agreed, and vice versa - even in the absence of an agreement on originality, an original work can be created. In view of this, the provisions of Article 6.193 of the Civil Code regarding the rules of interpretation of contracts are not relevant for the resolution of this dispute.

The Court of Cassation pointed out that legal doctrine states that the result of the work of co-authors must be a joint work, i.e. the results of creative work of all co-authors must be united by a common concept, thought or purpose. On the other hand, for the qualification of co-authorship it does not matter whether parts of the joint work created by the co-authors can be used independently, because in Lithuania the so-called divisive (when the work is integral and it is not possible to determine which part was produced by whom) and non-divisive co-authorship are recognised. A person who has provided material, technical or organisational assistance in the creation of a work (Article 7 (4) of the Law on Copyright and Related Rights) shall not be considered a co-author. As the doctrine points out, within the meaning of Article 7 (4) of the Law on Copyright and Related Rights, such persons may be, for example, a language editor, a person who has financed the creation of a work or other material conditions, a person who has provided other assistance (e.g., by collecting necessary court decisions or literature). A person whose results are used in a co-created work, but who is not protected by copyright (e.g., a co-created work uses research data from a researcher) shall not be considered a co-author. The Appellate Court found that there was a division of labor in the project, during which a third party was responsible for the textile part while the applicant provided the necessary visual materials and archaeological data and coordinated the work of jewellery manufacturers and jewellers. In view of this, the Court of Cassation stated that in resolving the dispute it was necessary to assess whether the applicant’s contribution to the reconstruction of the disputed archaeological costumes could be considered as co-authorship.

On the basis of the above stated arguments, the Court of Cassation found that it was necessary to assess whether the costumes reconstructed by the applicant met the criteria of creative activity and originality and possible co-authorship and, therefore, annulled the decision of the Lithuanian Court of Appeal and referred the case back to this court for reconsideration.

 Decison of the Supreme Court of Lithuania of 21 April 2021 in a Civil Case No. e3K-3-98-469 / 2021.