Originality in Thin Spaces: What a Critical Edition Teaches Copyright Law in the Age of Generative AI (Institutul G. Călinescu – CJEU, C 649/23)
Originality in Thin Spaces: What a Critical Edition Teaches Copyright Law in the Age of Generative AI (Institutul G. Calinescu – CJEU, C 649/23)

Summary/Abstract: aaaaThis article analyses the Court of Justice of the European Union’s judgment of 19 March 2026 in Case C-649/23, Institutul de Istorie și Teorie Literară “G. Călinescu” and Fundația Națională pentru Știință și Artă v HK and Others, the first preliminary ruling to apply the Court’s originality framework to a critical edition of a public-domain work. The article extracts three lessons whose relevance extends well beyond the specific case. First, the author’s personal imprint can be identified even in the most improbably narrow creative space, that in which the author sets out, deliberately and methodologically, to render as faithfully as possible the personality of another. Second, the narrowness of the available creative space does not diminish the protection: the originality threshold is binary, not graded, and EU law admits no second-rank copyright for works born under maximum constraint. Third, the protection of derivative works extends only to the original contribution of the second author, but the originality and infringement analyses must include a holistic dimension; an exclusively granular analysis is structurally incomplete. The article advances a unifying thesis (i.e., that European copyright law is equipped with a coherent theory of creativity in thin spaces) and applies it to AI-generated content, where the seat of human originality migrates from the component element to selection, refinement, and architectural choice.

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