Copyright- Originality Essay

Sample of past questions:

1. ‘Originality in copyright has undergone a major transformation with the definition

provided by the Court of Justice of the European Union in Case C-5/08 Infopaq
[2009] ECR I-6569. However, the approach of the UK courts is incompatible and
needs to be addressed.’
Discuss this statement in relation to originality for copyright.

2. “I do not understand the decision of the European Court of Justice in Case C-5/08
Infopaq [2009] ECR I-6569 to have qualified the long standing test [for originality]
established by the authorities of Peterson J in University of London Press v University
Tutorial Press [1916] 2 Ch 601 and the House of Lords in Ladbroke v William Hill
[1964] 1 All ER 465.” (Newspaper Licensing Agency v Meltwater Holding [2012]
RPC 1 (CA) para 19 (Sir Andrew Morritt))
Critically discuss this statement with reference to originality in copyright.

(Before attempting such question, highly suggest that individual be well versed with
case of Infopaq)

Infopaq v Danske Dagblades

A Danish copyright case relating to the automated production of summaries of news

reports and articles was referred to the European Court of Justice. The ECJ held that
the process, which involved the creation of digital files of 11 word extracts containing
search terms and their automatic deletion in most, but not all, of the process steps,
could be considered “reproduction” of a copyright work providing that the
“intellectual creation of the author” was copied in that extract. The copies made were
not “transient” as the final step in the process produced a hard copy which was not
automatically destroyed when the process was completed. This case confirms that the
ECJ is taking the same line as the English courts in what is effectively the qualitative
“substantial part” analysis for copyright infringement.
Introduction:

Section 1(1) (a) CDPA declares that copyright subsists in every original literary,
dramatic, musical or artistic work. As Gervais puts it (in the compatibility of the skill
and Labour Originality Standard with the Berne Convention and the TRIPs
Agreement’ [2004] EIPR 75), Originality is at the very core of copyright. What
may come as a surprise is the definition of originality under United Kingdom Law.

In University of London Press v University Tutorial Press Peterson J (at p. 608) stated
that the definition of originality means source not inventiveness. An issue that may
arise is whether the author had expended the minimum amount of skill, labour and
judgement in the creation of the work.

What is the British courts approach?

This is illustrated in the case of Ladbroke v William Hill:

The test of originality is the ‘skill, labour, judgement’ test. Lord Reed said that the
author must have exercised requisite intellectualqualities of sufficient labour skills
and effort. Walter v Lane- reporter carrying down speech using short hand ( short
form notes which reporters used to do) it is enough to establish copyright as labour
skills and time were put into. Sawkins v Hyperion records- Dr Sawkins went around
Europe finding scripts of ancient musical work, put them together and came out with
with his own orchestra album, court confirmed walter v lane, work must be consistent
with the standard of ‘sweat and brow’

What does the above points mean?

The word ‘original does not demand original or inventive thought, but only that the
work should not be copied but should originate from the author’

Why is this a problem?

The minimalist definition of originality conflicts, according to Gervais, with the

intention of the makers of Berne Convention who regarded the term as meaning
‘creativity’. The thinking in University of London Press (endorsed by the house of
lords in Ladbroke v William hill) is attributable, he argues, to the fact that that there
was no recognition of the tort of misappropriation.

How does Infopaq come into the question?

-ECJ’s ruling in Infopaq arguably brings a need for a radical rethink of the
requirement of originality: ‘Intellectual Creativity’ may be present in a very simple
phrase but lacking in a list of items compiled by the ‘sweat of the brow’
-It highlights the problems of copyright infringement and new technology in new
business models.
-This decision is considered to greatly impact fundamental principles of copyright
law, in concluding that the European standard of originality (the author's own
intellectual creation) applies not only in the limited contexts to which is has been
applied in legislation such as software, photographs and databases; but to all Berne
Convention "works" under the European acquis.
-This ruling illustrates interests of harmonisation.

In this case, the CJEU held that they could generalise and expand it across all works.
This is true for infringement, and BSA affirmed that this concept is applied for
subsistence as well.

Main Body:

The following section will examine how the British courts have approached
originality in copyright:

Titles, slogans and short phrases

Traditionally, British courts had been reluctant to protect titles, slogans and short
phrases. As a result of Infopaq, however, that attitude seems to be changing. There the
court indicated that eleven words of a newspaper article might be original in the
European sense of an ‘intellectual creation’. In the light of that holding, in Newspaper
Licensing Agency v Meltwater, the high court and Court of Appeal have held that
‘policy considerations’ that once have informed that UK’s reluctance to protect titles
are now irrelevant.

Also, possibly relevant is the case of Exxon corp v Exxon insurance ( held that a word
is not literary work because it contains no info. de minis rule. ) The basis for the
finding in Exxon (that it is not protected by © because it is not a literary work) is
probably not good law – it is literary, under the EU harmonisation , but probably still
can’t be protected - Although the Court has not gone so far as to explicitly state that
invented words are unprotected, in Infopaq, it indicated that the components of the
eleven word phrases ‘consist of words which, considered in isolation, are not as such
an intellectual creation of the author who employs them’ so that such ‘words as such
do not ... constitute elements covered by the protection.

Snapshots

There is no clear guidance on candid photo under UK law, the photograph might have
originated with the author and so should be treated as original (applying the
University of London Press case). Elsewhere in Europe( I.e Greece), simple snapshots
have often been refused copyright. The case of Painer shows that there can be
protection when the portrait reflects the photographers personality. Subsequently to
Painer, the patents Country Court referred to an Austrian decision to this effect
approvingly, Judge Birss in Temple island saying that he did not think the UK law
was any different- a photograph of some grapes were original, and added that ‘a lot of
amateur photograph who take everyday pictures of everyday scenes in the form of
photos of landscapes, persons and holiday pictures.
Derivative works

British courts have protected these, as long as the derivative work had some quality or
character which the raw material did not possess, and which differentiates the product
from the raw material. CJEU hasn’t offered any views on this yet, and member state
law differs on this – either only requiring that the addition or altered material is an
personal intellectual creation, or requiring something more – like UK (or Italy –
requiring ‘additions constituting a substantial recasting of the original work.’).
Appropriation art (the use of pre-existing objects or images with little or no
transformation applied to them in order to recontextualise them) is probably not likely
to be protected.

Photographs

While it is true that there is historical precedent for recognising copyright in them, the
technology surrounding photography has become substantially easier to use, so it is
harder to see how there could be creativity: nevertheless in Antiquesportfolio.com v
Rodney Fitch & Co Ltd, it was held that copyright subsists in simple photographs of
3D objects because the taking of such photographs involves judgment—the
positioning of the object, the angle from which the picture is taken, the lighting, and
the focus. Hard to see how there could be creative choices in the form required by the
Duration Directive, though.

Computer-generated works

The problem with computer generated work is that it is difficult to see how the
existing criterion of originality, which focuses on the relationship between the author
and the work, can be applied to computer-generated works that, by definition, have no
readily identifiable author. As the European standard now applies to all works, it must
be doubted whether copyright protection (in a European sense) should be regarded as
available at all to ‘computer-generated’ works. Advocate-General Trstenjak remarked
in her opinion in the Painer case that ‘only human creations are...protected’.

Summary:

In moving forward, contrasting the approaches between the EU courts and British
courts, core works are protected under either test. In fact, it can be argued that the test
in Computer Software Directive corresponds to UK and Irish standard. EU test
normally said to be “higher threshold”, the flaw to this argument is that this is the
wrong way to characterise it. It is a different set of tests and approaches, and like all
different tests, and like all different tests, at the margins, it will produce different
outcomes. This doesn’t mean that they will all go one way, though, There may be
some circumstances where works not protected under UK law might have to be
protected by EU law. Concluding on that note, The EU test should be applied from
now on, but it should probably be applied retrospectively too. However, if a work
already in existence would have been protected under UK law, but would not be
protected under EU law, the better view is that it would not lose that protection,
because it had already acquired those rights