As widely known, in order to obtain copyright protection a work must be original. Despite the importance of the concept, there is neither a definition nor a harmonized criterion when analysing it, thus Courts have provided different interpretations. Traditionally Spanish case law has established two concepts of originality, objective (novelty) and subjective (the work is original to the extent that it expresses the personality of the author)
The Spanish Supreme Court has recently ruled on the concept of originality in architectural works. Judgement 1644/2017 of April 26, 2017 (- ECLI: ES: TS: 2017: 1644) can be considered as a landmark case because it sets for the first time how to apply this requirement to the mentioned type of works.
The situation which gave rise to the proceedings was the following. An architect (claimant) was hired by a property developer to prepare a project for a hotel. The project did not obtain the necessary administrative authorization, therefore the property developer contracted two more architects (defendants) to work jointly with the claimant in order to prepare a second project. This one, which was signed by the three architects, was finally suspended due to the bankrupt situation of the developer. Two years later the defendants submitted a third project based on the previous one, but this time without the consent of the claimant. The claimant started legal proceedings against the two architects that signed the third project, claiming that the architectural work at issue was a collaborative work and he should be considered as co-author.
According to the Court, architectural works are functional works that must meet "the technical requirements and the urbanistic regulations." This fact certainly limits the freedom of authors thus an architectural work will be original if despite the technical requirements is unique and novel (objective originality)
The High Court made the following statement: "the fact that the work at issue is an architectural work does not mean the work is original as such. Creativity is not presupposed by the size of the building or by the fact that is intendent to be a hotel. Not every architectural work is an original work that can be protected by copyright. By this statement the Court clearly rejects the subjective originality for this type of works.
The Court denies the status of co-author to the claimant, and states that when there is a collaborative work composed by different parts, each part of the work must be original. If there are parts that do not meet this requirement, the author of the mentioned parts will not be considered as a jointly author of the collaborative work.
This ruling has a huge importance not only for the assessment of the originality requisite in relation to architectural works, but also establishes the standard criteria for other type of works. In fact, the Court makes the following argument: "Although the subjective conception of originality was the one applicable in the past (and it may be applicable in principle to some works with very special characteristics, such as computer programs, art. 96.2 of the Intellectual Property Law), currently the applicable criterion requires a certain degree of creativity. This objective criterion allows the differentiation of a work with respect to the pre-existing (...) and requires a minimum threshold of originality "