Joris DeeneCan the reconstruction of a historical manuscript belonging to the public domain give rise to a new copyright? In a ruling of March 19, 2026 (C-649/23) the Court of Justice ruled that this is indeed the case, provided that the adapter has made free and creative choices in the adaptation that go beyond mere technical skills or philological rules. Find out below what strict conditions such a critical publication must meet to enjoy protection and what this means in practice.
The context
The case revolves around Professor Dan Sluşanschi, who edited a critical publication of an 18th-century Latin manuscript by Prince Dimitrie Cantemir on the Ottoman Empire. Although Cantemir's original work has long been in the public domain, the manuscript was incomplete and difficult to read. Sluşanschi reconstructed the text through corrections, additions and an extensive critical apparatus (footnotes and commentaries).
After the professor's death, his work was made available, after which another foundation (the FNSA) published the work in a bilingual edition. This new publication adopted Sluşanschi's critical Latin text in its entirety, provided it with its own footnotes, but mentioned Sluşanschi only in passing and not as the author of the reconstructed text.
Sluşanschi's heirs initiated copyright infringement proceedings. The opposing party argued that a scientific reconstruction of a dead language (Latin) does not allow creative freedom, but is purely a matter of professional expertise. In response, the Romanian court decided to submit preliminary questions to the Court of Justice of the European Union (ECJ).
The decision of the Court of Justice
The Court of Justice addressed the question of whether the critical publication of a work that has become public domain, the purpose of which is to reconstruct the text of that work, accompanied by commentary and the necessary critical apparatus, can be protected by copyright . The Court's answer is affirmative, but subjects this to two strict, cumulative conditions.
First, it must be an original object, meaning that it is the author's own intellectual creation that reflects his personality by expressing free and creative choices. If the work is determined purely by technical considerations or rules with no room for creative freedom, there is no copyright. Here, the Court specifically held that an editor's grammatical, lexical and stylistic choices are not merely technical, but may reflect his personal interpretation, imagination and intuition in reconstructing the original author's intent.
Second, the object must be identifiable with sufficient accuracy and objectivity. The Court held that a critical publication, including the commentary and critical apparatus, can be considered such an identifiable object in its entirety.
Legal analysis and interpretation
This ruling confirms the originality threshold in European copyright law. Whereas the Mio-ruling still used the term ‘unique,’ that word is conspicuous by its absence here. The Court returns to the usual description: copyright protection depends solely on whether there are “free and creative choices that reflect the personality of the author”.
This is by no means a low bar. Mere intellectual effort, effort, time, or advanced philological expertise are not in themselves sufficient to claim copyright. Originality must result from the specific grammatical, lexical, literary, and stylistic choices made by the adapter in reconstructing gaps in the text. The adapter, inspired by his intuition and interpretation of the original author's intent, brings something new and personal to the text. In practice, this requires careful argumentation by the parties and strict review by the national courts.
The legal challenge in critical editions lies in the distinction between ‘know-how’ (expertise) and ‘creativity. The Court recognizes that philological expertise can influence an author's choices, but that this expertise does not necessarily stifle the creative spirit. When an author makes interpretations to restore lost passages or chooses a specific sentence structure from several scientifically defensible options, he puts his personal stamp on the work.
Finally, it was suggested during the proceedings that the work be artificially divided: the original historical text on one side, and the new notes and commentaries (the ‘critical apparatus’) on the other. The Court firmly rejects this breakdown. Indeed, it is not necessary to make this surgical distinction to determine exactly what is copyrighted. On the contrary, splitting up runs the risk of destroying the meaning of the work, since the commentaries and explanations are a necessary complement to the specific passages of text they analyze. Thus, the critical publication can perfectly be identified in its entirety - as one inseparable whole - as a protected work.
What this specifically means
This statement is important to several actors in publishing and academia:
- For scientists and academic researchers: Reconstructing and commenting on ancient texts is not simply public property. If you make creative choices to restore an incomplete text, you may claim copyright on it. It is strategically advisable to properly document the nature of your linguistic and stylistic interventions.
- For publishers: Simply copying a critical edition of a work that is in the public domain is risky. Even if the underlying manuscript is royalty-free, an editor's specific textual reconstruction may be protected. Consideration should always be given to whether permission is needed from the author of the critical edition.
- For the public domain: The protection of the critical edition does not take the original manuscript out of the public domain. Anyone is free to go back to the original historical sources and make their own (new) translation or reconstruction.
Frequently asked questions (FAQ)
So is a work that is in the public domain still covered by copyright again?
No, the original work remains in the public domain and may be freely used by anyone. It is only the specific, new adaptation (the critical edition) that is copyrightable, provided it is the result of the creative choices of the editor.
What is the difference between an ordinary copy and a protected critical edition?
A facsimile or a mere technical transcription of an old manuscript lacks the required originality and is not protected. A critical edition is, however, protected when the author has made active, free and creative choices (e.g. stylistic or lexical interpretations) to reconstruct the work.
Does this also apply to purely scientific work and effort?
No. No matter how much time, effort and technical expertise goes into a study, these factors in themselves do not yield copyright. Only the creative expression and personal stamp of the author are protected by copyright.
What if two researchers independently arrive at the same reconstruction?
If a reconstruction is the only technically and scientifically possible option, creative freedom is lacking and there is no copyright protection. Protection arises precisely where several scientifically defensible choices are possible and the author expresses a personal preference.
Conclusion
The reworking or reconstruction of historical material is more than mere tape work; it can be an intellectual creation. The Court of Justice confirmed that a critical publication of a public domain work enjoys copyright protection as long as there are free, creative choices that reflect the personality of the editor.
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