REQUIREMENTS FOR

PROTECTION
 ORIGINALITY
• Most copyright laws require that a work be
original before it is protected.

• Consider the following:

– Is personal creativity required or is it enough that the

work came from the author, was not copied, and
involved some judgement, skill or labour?

– Does only a particular sort of judgement, skill or

labour qualify, or will any sort do?
 ORIGINALITY
• How much work is required: a little or a
substantial amount (and what is meant by
“substantial”? Must the work exhibit some
other quality?

• Does the test or standard of originality

differ from one class of work to another?
 ORIGINALITY
• Art 2(1) Berne Convention- derived from the notion of productions

• To qualify for copyright protection- an expression must have

sufficient degree of originality

• A work is original when it reflects the personality of its creator

• No universally agreed measurement of originality

• Original work- the product of one person’s independent creation.

• Two aspects of originality

– Independent creation
– Modest quantum of creativity
 ORIGINALITY
• Independent creation
– Original work is independently created by the
author
– Not copied from another
– One is not an author unless s/he originates
something
 ORIGINALITY
• Minimal amount of creative authorship (de minimis
concept)

• Common law countries require a lower standard of

originality. University of London Press Ltd. V. University
Tutorial Press Ltd [1916] 2 Ch. 601 (U.K.: High Court)

• “ The word original does not in this connection mean that

the work must be the expression of original or inventive
thought…… The originality required relates to the
expression of the thought. But the act does not require
that the expression must be in an original or novel form,
but rather the work must not be copied from another
work…” Justice Peterson.
 ORIGINALITY
• Feist Publications, Inc. v. Rural Telephone
Service Compmany, Inc. 499 U.S. 340
(1990)

– “Originality (independent creation plus a

modicum of creativity, the sine qua non of
copyright, is a requirement for copyright
protection”
 ORIGINALITY
• Must be judged by looking at the work as a whole not
merely at its components parts

• Ladbroke (Football) Ltd. V. William Hill (Football) Ltd

[1964] 1 W.L.R. 273 (U.K.: House of Lords)

A work may be up of a number of components. Each

component may itself be original, and, if it stood alone,
may have copyright. Other components may not be
original. But when one asks whether a whole work has
copyright, the question of originality must be answered
by looking at the whole work as a whole.
 ORIGINALITY
• Derivative works

– Copyright in derivative work in unrelated to any

exclusive right in the pre-existing work.

– It is independent of, and does not affect or enlarge the

scope, duration, ownership or subsistence of, any
copyright protection in the pre-existing material

• If a person translates Bill Clinton’s My Life,

would it be protected as a derivative work?
 ORIGINALITY
• Compilations- may contain facts
– Copyright in compilations consists of the
original elements an author has added to the
assembled pre-existing materials or data

– Feist case raised the standard for copyright

protection
– Compilations are not protected unless the
selection, coordination, or arrangement of the
facts is original.
 ORIGINALITY
• Originality in Selection

• Compilations may display sufficient originality if a work

as a whole constitutes original selection

• Work arranged in alphabetical order may be

copyrightable if data is selected in an original way

• Eckes v. Card Prices Update, 736 F.2d 859 (2d Cir.

1984). A selection of 5,000 premium baseball cards from
approximately 18,000 cards was held copyrightable.
Here selection of data required creative rather than
merely mechanical decisions of inclusion.
 ORIGINALITY
• Originality in Arrangement
• Compilations may be copyrightable if the arrangement is
original. Standard set under Feist

• Warren Publ’g, Inc. v. Microdos Data Corp. 115 F.3d

1509 (11th Cir.), cert. denied, 118 S. Ct. 397 (1997)
– Holding that a directory that arranged cable systems
alphabetically by state and within each state, as well as
alphabetically by the name of the principal community served by
the cable system, was found to be obvious and mechanical thus
failing to meet the standard of originality
 ORIGINALITY
• Suppose B, without doing independent research
appropriates the factual information contained in
a compilation produced at great expense by A,
such as a telephone book. Suppose also that B
has not taken the original elements added to the
public domain, such as A’s subjective
arrangement or organization of the compilation.
Can A be protected under the Copyright Law
from B’s total appropriation of A’s hardwork in
the gathering the facts?
 ORIGINALITY
• Suppose A compiles
– An alphabetical list of MIP students of AU

– a list of local schools arranged according to

the size of their libraries, or the square
footage of their classroom.

• Are these original works? Can they be

protected under copyright?
 ORIGINALITY
• Does the content of “database” have to be
original to be protected?
 FIXATION
• Some legal traditions require a work to be fixed in material form to
be protected.

• Fixation plays an important role in determining infringement.

• Infringement takes place only when a fixed work has been

reproduced.

• Civil law tradition – copyright protects any type of works regardless

of fixation

• Article 2(2)- Berne Convention leaves to member States to

prescribe that works shall not be protected unless they have been
fixed in some material form.
 FIXATION
• In the case of Malawian works:
• Section 5(1) of the Copyright Act:
• Literary, dramatic, musical or artistic work
shall not be eligible for copyright under this
Part unless:
– (a) it is original in character
– (b) it is a derivative work, and it is in writing or
recorded or otherwise reduced to material
form.
 FIXATION
• For purposes of the Copyright Act, a work is
reduced to material form when it is placed in a
stable and permanent embodiment

• It must be recorded or written in some manner.

• Mere performance of a work does not qualify –

no matter how beautiful a performance can be

• Can live broadcasts over radio or television be

protected?
 FIXATION
• Some courts have relaxed the requirement of fixation by
holding that the recordation or writing need not have to
last a long time.

• MAI Systems Corp. v. Peak Computer Inc., 991 F.2d 511

(9th Cir. 1993)

– Court held that the loading of plaintiff’s copyrighted software into

RAM memory constitutes a fixation and qualifies a a copy under
the Copyright Act. Permanence and stability requirements were
met even though the text will vanish forever when the computer
is turned off at the end of the work session, unless it is stored in
some other way, e.g a disk.
• Do you agree with this holding?
 FIXATION
• What about
– loading a software into RAM memory,
– chat messages,
– e-mails, or
– a poem written on sand
– Video games stored in ROM?

Do they meet the requirement of fixation?

 FIXATION
Stern Electronics., Inc. v. Kaufman, 669 F.2d 852 (2d
Cir. 1982)
Issue. Whether the statutory fixation requirement was
met since the audiovisual images were transient and
could not be fixed. The court held that the
audiovisual game was “permanently embodied in
a material object, the memory devices, from
which it could be perceived with the aid of the
other components of the game…. Fixation
requirement is met when the computer program is
embodied in the ROM device, a material object.
 FIXATION
• Can the following works
be protected?

– Lectures,
– addresses,
– sermons and other works
of the same nature.
• How about a tattoo, is it
sufficiently fixed for
purposes of copyright
law? Is there sufficient
permanence?
 ARE THERE ANY FORMALITIES
• Article 5(2) of the Berne Convention:
• The enjoyment and the exercise of these [authors’] rights
shall not be subject to any formality; such enjoyment
and such exercise shall be independent of the existence
of protection in the country of origin of the work…

• E.g Canada, copyright may be optionally registered.

Under Canadian Act (s.53), registration is evidence of
the particulars entered in it” and

• a certificate of registration “is evidence that copyright

subsists in the work and that the person registered is the
owner of the copyright
ARE THERE ANY FORMALITIES
• Circle Film Entreprises Inc. v. Canadian
Broadcasting Corp. [1959] S.C.R. 602
(Canada: Supreme Court)
• “ registration is permissive in character
and the subsistence of copyright in no way
depends upon registration, but its proof of
ownership …..” Justice Judson