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 1 ;
(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 2
where the unanimous opinion was that a work is “original”, and can therefore qualify for
copyright protection, if it is the result of its author’s own skill, labour, judgment and effort.
There is no requirement to register original works under copyright. One automatically gets
protection upon creating the works set out in Section 1 of the Copyright, Designs and Patents
Act. However, in the event of a dispute, it may be difficult to determine the original rights
holder. Conversely, if the rights owner registers their work with the UK Copyright service, they
are at an advantage as they can easily produce the necessary records to prove that they are the
1 Section 1 of the Copyright, Designs and Patents Act, 1988
2 UK Ltd C-604/10 [2013] FSR 1
indeed the original creators. As such, a rights holder should consider registering their works to
ensure that they are protected in the long term.
The crux of the case in Football Dataco revolved around football fixtures lists. The claimant
(Football Dataco) argued that the lists were protected by copyright as databases because the
person who made them (a Mr Thompson) expended a lot of skill and labour and did not simply
follows rigid rules. 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 3 . The claimant,
a media monitoring and analysis business, was engaged in sending customers selected
summarized articles from Danish daily newspapers and other periodicals by email. The articles
were selected on the basis of certain subject criteria agreed with by customers and made
available by means of a data capture process.
Danske Dagblades Forening (DDF) a professional association of Danish daily newspaper
publishers and the Respondent in the suit, which assisted its members with copyright issue
became aware that Infopaq was scanning newspaper articles for commercial purposes without
authorization, and issued a complaint to the Claimant, who disputed that the procedure required
consent from the right holders. The claimant then brought an action against DDF before the
Østre Landsret (Eastern Regional Court), claiming that DDF should be ordered to acknowledge
that Infopaq is entitled in Denmark to select the summarized articles without the consent of DDF
or of its members. The Østre Landsret dismissed that action, and Infopaq brought an appeal
before the Højesteret, Denmark’s highest court. The Hojestret Court referred the questions for
determination to the European Court of Justice which held that printing is not transient in nature
and consent was needed for Infopaq to use the publication for their use.
Inferring from the reasoning of the court in Infopaq, regardless of the fact that Infopaq had
expended skill and energy by using a very elaborate process in the conveying of select articles to
their clientele, the fact that it was not their original work overshadowed the skill and labour that
3 Case C-5-08, July 16, 2009 (ECJ)
they had expended. As such, they were required to seek consent, failure to which they would be
deemed to be infringing on the rights of the DDF.
An almost similar set of facts presented itself in Football League v Littlewood Pools 4 . The facts
of the case were that the plaintiff alleged copyright infringement by the defendant in the
reproduction of its fixture lists. The defendant argued that the work which went into deciding
when and where the fixtures were to take place was not relevant and that the only relevant skill
and labour expended was in reducing that information to material form. In determining this
matter, the court held that copyright subsisted in football fixture lists as a literary work and
compilation. Importance was attached to the reproduction of not only the information, but also its
arrangement, and to the fact that essentially the whole of the work in suit had been reproduced.
In expounding on the judgment, one of the judges 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.
Another judge, Mr. Shelley, expounded that “The amount of labour, skill, judgement or
ingenuity required to support successfully a claim for copyright is a question of fact and degree
in every case.’ The 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 5 . 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 transcribed
the speeches, adding punctuation, corrections and revisions to reproduce verbatim the speeches.
These were then published in the newspaper. The respondent in the case then published a book
including these speeches, taken substantially from the reports of those speeches in the
newspaper.
4 [1959] 1 Ch 637
5 [1900] AC 539
The question for determination before the court was whether the reporters of the speech could be
considered “authors” under the terms 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.
The House of Lords, by a 4-1 majority, reversed the decision rendered by the Court of Appeal. It
was held that 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. The dissenting judge compared the reporters to phonographs and
found that there was no authorship even though there was much skill required and that they had
expended the same.
In Walter above, it is notable that the Earl of Rosebery was not a party to the suit. The concept of
originality shifted its axis and 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 the basis of 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 fresh 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.
If the amount of skill and labour expended was to be the yardstick against which protection of
copyright would be measured against, rights holders would be severely prejudiced. This is for the
reason that it is easy to improve on an idea or come up with a variation of the core concept as
opposed to coming up with the original concept. As such, the original rights holder must be
protected at all costs and all improvements on the original work must pay homage to the actual
original work.
Comparative Analysis
In the United States of America, originality is the “sine qua non” of Copyright. 6 For a work to be
protected under the Copyright Act of 1976, it must satisfy two qualities; that it is fixed in a
tangible medium of expression and it must constitute an original work of authorship. The Act
accord 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.
6 Kamar International, Inc. v. Russ Berrie & Co., 657 F.2d 1059, 1061 (9th Cir. 1981).
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 7 , 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.
7 Rahmatian, A. Originality in UK Copyright Law: The Old “Skill and Labour” Doctrine Under
Pressure. IIC 44, 4–34 (2013). https://doi.org/10.1007/s40319-012-0003-4
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;
- Copyright, Designs and Patents Act, 1988
- Copyright Act of 1976 – United States of America
Article Cited;
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