THE TEST OF ORIGINALITY AND COPYRIGHT LAW IN THE UK

THE TEST OF ORIGINALITY IS AND SHOULD CONTINUE TO BE, AUTHOR’S OWN INTELLECTUAL CREATION IN THE UNTIED KINGDOM COPYRIGHT LAW

Introduction 

In a world where imitation and lethargy in advancement of intellectual property is more common place than the creation of original works, original creators must be protected and applauded, for the very act of coming up with an original work, if nothing else.  

The rationale for seeking protection of copyright is to safeguard the author’s investment from infringement by unscrupulous persons through copying or otherwise conducting unauthorized using the protected work, and to also enable the copyright owner benefit financially or otherwise from their original works. 

Copyright is defined as a property right which subsists in accordance with the description of work set out as;

(a) original literary, dramatic, musical or artistic works,

(b) sound recordings, films [or broadcasts], and

(c) the typographical arrangement of published editions.

Drawing from the definition set out above in Section 1 of the Copyright, Designs and Patents Act, a work is only eligible for protection if it is original. Although the Act does not elaborate on the meaning of the term “original” the same was elaborated in Football Dataco v Yahoo! UK where the court unanimously held that a work is “original” if it is as a result of the skill, labour, judgment and effort expended by the author. Upon proving that the work meets these conditions, them the work qualifies for protection under copyright. 

The crux of the case in Football Dataco was founded on the question whether football fixtures lists would be protected under copyright. The claimant argued that the lists were protected by copyright as databases because the author of the said fixtures expended a lot of skill and labour and did not simply follow rules without attaching any reasoning. The High Court and Court of Appeal of England and Wales accepted they were databases but rejected sui generis right in them. Drawing from the court’s judgment, it would mean that though a person may expend skill and labour, but if the work is not original then it does not meet the threshold for copyright protection. 

Where a work meets the originality aspect, it is protected from infringement by other persons. This was demonstrated in Infopaq international v Danske Dagblades Forening.  The claimant who was in the business of media monitoring and analysis, sent customers selected summarized articles from Danish daily newspapers and other periodicals by email. The selection of the articles was based on subject criteria agreed with by customers and availed by way of a data capture process.

The Defendant, Danske Dagblades Forening (DDF) was a professional association of Danish daily newspaper. This association which assisted its members with matters of copyright became aware that the claimant was scanning newspaper articles for commercial purposes without authorization, prompting a complaint to the Claimant. 

The Claimant disputed that the process that they were engaging in required consent from the right holders, and brought an action against DDF before court, claiming that the defendant should be ordered to acknowledge that Infopaq was entitled to select the summarized articles without the consent of DDF or of its members. The court of first instance dismissed that action, causing Infopaq to bring an appeal before Denmark’s highest court. The highest Court then referred the questions for determination to the European Court of Justice, particularly whether eleven words can constitute copyright and subsequently infringe such copyright when reproduced. 

The court held that if the words were an expression of the intellectual creation of the author, then printing such words would be a reproduction. The ECJ left the Danish court to apply this ruling to the set of facts before them in their final determination.

Pursuant to this ruling, Estelle Derclaye in her article argues that the ECJ in its ruling introduced a new threshold that rights holders must meet in order to be protected under copyright, namely intellectual creation. That an original creation must exude creativity failure to which copyright protection cannot be afforded to the rights holder. Further, she argues that the current criterion of sufficient skill, labour and capital that is applied in the determination of copyright protection has been altered to just the requirement of intellectual creation, which is likely to open a Pandora’s Box in the world of copyright. She concludes that for the most part, the change in criterion does more good than harm save for the fact that the strict interpretation may prejudice a number of rights holders.

Basing her argument on the ruling in Infopaq, Eleonora Rosati in her article argues that copyright harmonization has been commenced by the jurisprudence established in the ruling delivered by the ECJ, which is likely to be revolutionary in the interpretation of copyright henceforth. 

An almost similar set of facts presented itself in Football League v Littlewood Pools. The plaintiff claimed that the defendant had infringed on their copyright by reproducing their fixture lists. The defendant argued that the Plaintiff did not expend a lot work in deciding when and where the fixtures would take place and that the only credible skill and labour spent was reducing that information to material form. In determining this matter, the court held that there was indeed copyright worthy of protection in football fixture lists as a literary work and compilation. The court attached importance to the reproduction of the information, its arrangement, and to the fact that essentially, the defendant had reproduced the Plaintiff’s work entirely. .
In expounding on the judgment, justice Upjohn stated that such a compilation can be claimed successfully if it be shown that some labour, skill, judgement or ingenuity has been brought to bear upon the compilation. He further held that for a claim to be successful, one must spend a considerable degree amount of labour, skill and judgment. The court’s final determination of the court was that the plaintiffs were entitled to copyright in the fixture.

This was a sharp departure from the judgment issued in Football Dataco which is indicative of the fact that the concept of originality is not static and that the same is considered on a customized basis. As such, the benefit of considering the author’s own intellectual creation as the basis of originality shows itself and defeats the possible application of a blanket test. 

The concept of originality finds a sharp contrast in the decision issued in Walter v Lane. The facts of the case were that reporters from “The Times” newspaper took down shorthand notes of a series of speeches given by the Earl of Rosebery, a prominent politician. They later reduced the speeches into writing, adding punctuation and improved on the quality of the speeches. These were then published in the newspaper. The respondent thereafter published a book including these speeches drawn from the newspaper.  

 The question for determination before the court was whether the reporters who had improved on the speeches could be considered “authors” for the purposes of the Copyright Act. The Court of Appeal found for the respondent and held that the claimants did not exude originality, could not be considered as authors and therefore could not be protected under copyright. 

By a majority vote,  The House of Lords reversed the decision rendered by the Court of Appeal and held the reporters were authors under the Copyright Act of 1842. The effort, skill and time that they spent  in bringing the speech to the standard that they did was sufficient to make them original rights holders. 

In Walter above, it is notable that the Earl of Rosebery was not a party to the suit. The concept of originality had to be applied differently. It would have been interesting to see the court’s perspective had it been the Earl of Rosebery suing on this infringement. Strictly speaking, the original author of the speeches would have been the Earl of Rosebery and had he been a party, the court would have been at a crossroads on whether to rule in favour of the Earl as in  Infopaq international v Danske Dagblades Forening or issue a stand that would have overruled Infopaq altogether.  

Walter also serves to demonstrate that the courts are not rigid in their consideration of originality. Whereas there is detachment from the strict original rights holder, the court considered the originality concept on the basis of the facts presented to it. Had the court dismissed the matter due to the strict application of originality, all parties would have lost all the benefits that result from copyright protection. This lends credence to the notion that the test of originality should continue to be the author’s own intellectual creation in the United Kingdom copyright law. 

It must be noted that the array of works set out under Section 1 of the Copyright, Designs and Patents Act is significantly wide. For instance, the original creation, skill and labour that goes into original literary works, musical or artistic is very different from the effort that is required in the typographical arrangement of published editions. As such, though the various aforementioned works fall within the ambit of copyright, the same threshold cannot be used for both. Each work must be considered on its own on the basis of the originality of each to include the skill and labour expended. 

Conversely, if the works were to be considered on an equal footing, the same would result in an absurdity and copyright owners would be subjected to unfairness leading to an erosion of their original, lack of motivation in creating original works as well  as loss of financial gain which they would otherwise have benefited from.  It would also cause uncertainty in determining whether there is an infringement of copyright or not, defeating the very purpose of copyright protection. 

Comparative Analysis 

In the United States of America, originality is a non-reducible minimum of Copyright protection. For a work to be protected under the Copyright Act of 1976, two qualities must be satisfied; that it is fixed in a tangible medium of expression and it must constitute an original work of authorship. The Act accords a bundle of rights to the copyright proprietor to include ; to reproduce the work; to prepare derivative works from the original; to distribute copies of the protected work to the public; to perform the work; and to display the work publicly.

Notably, originality in an author’s work is a consideration that goes to the core of copyright protection. The United States of America is arguably one of most progressive jurisdictions in regard to intellectual property, and more so in copyright law, with some of the most celebrated works in the copyright realm.  Notwithstanding such progression, the originality test of each work plays an irreplaceable role. 

Without attempting to deflect progress on the basis of comparison, it speaks volumes that one of the more progressive jurisdictions also uses an author’s own intellectual creation as a basis for determining copyright protection.  

The Berne Convention is the oldest convention in regard to copyright. The United Kingdom is a member state, among other numerous states. Whereas the Convention does not expressly set out the originality test, it does not lose its meaning in the governance of copyright in the country.  As with any other international instrument, it is up to the member state to customize it to the needs of the state. Acknowledging that the latitude of this customization is limited in member states including the United Kingdom, protection of copyright is strongly founded on originality and therefore, the test of originality cannot be hastily cast aside for the mere reason that the Berne Convention does not specifically provide for it. 

Conclusion

Whereas the test of originality on the basis of the author’s intellectual creation introduces a very wide berth by compelling the law to singly consider each work individually, there is not another comprehensive formula where original creators of intellectual property in the realm of copyright can be fully protected.

Granted, the lack of a uniform formula introduces inefficiencies and has even been termed as pedestrian by some, yet this particular way has proved to be the most solid protection this far. Until a more efficient test which balances all the facets of copyright is brought forth, the test of originality should continue to be the author’s own intellectual creation in the United Kingdom Copyright law. This is further supported by the evolution of judgments as demonstrated in this paper. That originality in two seemingly similar set of facts has eventually led to divergent judgments and in other instances, the court has had to almost improvise on the concept of originality. This disparity has been caused by the consideration of an author’s own intellectual creation. Without such consideration, a lot of rights holders would have been prejudiced in the pursuit of perfection. 

 

 

 

 

 

LIST OF REFERENCES 

Authorities cited;

• Football Dataco v Yahoo! UK-  UK Ltd C-604/10 [2013] FSR 1

• Infopaq international v Danske Dagblades Forening Case C-5-08, July 16, 2009(ECJ)

• Football League v Littlewood Pools[1959] 1 Ch 637  

• Walter v Lane [1900] AC 539

• Kamar International, Inc. v. Russ Berrie & Co., 657 F.2d 1059, 1061 (9th Cir. 1981).

 

Statutes Cited; 

 

1. Copyright, Designs and Patents Act, 1988

 

1. Copyright Act of 1976 – United States of America 

 

Article Cited;

 

1. Rahmatian, A. “Originality in UK Copyright Law: The Old “Skill and Labour” Doctrine Under Pressure.” IIC 44, 4–34 (2013). 

 

1. E. Derclaye, ‘Infopaq International A/S v Danske Dagblades Forening (C-5/08): wonderful or worrisome? The impact of the ECJ ruling in Infopaq on UK copyright law’[2010] 32 EIPR 247

 

1. E. Rosati, ‘Originality in a work, or a work of originality: the effects of the Infopaq decision’ [2011] EIPR 746
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