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

The article titled “Originality in Thin Spaces: What a Critical Edition Teaches Copyright Law in the Age of Generative AI (G. Călinescu Institute – CJEU, C‑649/23)” was published in A.U.B.D. – Legal Forum No. 1/2026, written by Vladimir Diaconiță, associate professor at the Faculty of Law of the University of Bucharest and a member of the Bucharest Bar Association.

This article analyzes the judgment of the Court of Justice of the European Union dated March 19, 2026, rendered in Case C-649/23, the “G. Călinescu” Institute of Literary History and Theory and the National Foundation for Science and Art v. HK and others—the first preliminary ruling in which the Court applies its framework for analyzing originality to a critical edition of a work in the public domain. The article draws three conclusions whose relevance extends far beyond the specifics of the case. First, the author’s personal imprint can be identified even within the most improbably narrow creative space: that in which the author deliberately and methodically seeks to render another person’s personality as faithfully as possible. Second, the limited nature of the available creative space does not diminish protection: the threshold of originality is binary, not gradual, and European Union law does not recognize a secondary copyright for works created under conditions of maximum constraint. Third, protection of derivative works extends only to the original contribution of the second author; however, the analysis of originality and the analysis of infringement must include a holistic dimension; an exclusively granular analysis is structurally incomplete. The article proposes a unifying thesis (i.e., that copyright law within the European Union possesses a coherent theory of creativity in narrow creative spaces) and applies it to content generated using artificial intelligence, a field in which the locus of originality