Copiright Law

8/19/2019 Copiright Law

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“Concept of Originality under Copyright Law”

Submitted to:

Ms. Nilima Panda

Assistant Faculty

Faculty of Law

Submitted by:

Permanika Chuckal

VIIth Semester

2!2"#

Damodaram Sanjivayya National Law niver!ity

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$C%NO&L'D()'N*

I would like to e%&ress my s&ecial a&&reciation and thanks to my ad'isor

Ms. Nilima Panda ( who ha'e )een a tremendous mentor for me. I would like to

thank you for encoura$in$ my research( ad'ice for the research has )een &riceless.

I would e%tend my thanks to the *ni'ersity Authorities( for &ro'idin$ me with is

o&&ortunity to su)mit my &ro+ect. I am inde)ted to all those who ha'e hel&ed me

in de'elo&in$ this &ro+ect for their su$$estion and $uidance.

Permanika Chuckal

2!2"#

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.N*/ODC*.ON

Perha&s the most well3known re4uirement that must )e satisfied for

co&yri$ht &rotection to arise is that the work )e 5ori$inal6. It should )e noted that

this only a&&lies to literary dramatic( musical( and artistic works. In contrast( there

is no need for entre&reneurial works 7sound recordin$s( films( )roadcasts and

ca)le &ro$rammes( and ty&o$ra&hical arran$ements to )e ori$inal for them to

4ualify for &rotection. Instead the !800 Act declares that co&yri$ht only su)sists to

the e%tent that such works are not co&ied from &re'ious works. 79e look at this in

the followin$ sect ion.:

In order for a literary( dramatic( musical or artistic work to )e &rotected )y

co&yri$ht it must )e ori$inal. ,he ori$inality re4uirement( which has )een a

$eneral Statutory re4uirement since !8!!(! sets a threshold that limits the su)+ect

matter &rotected )y Co&yri$ht law.6 It also functions to limit the duration of

&rotection. It does this )y &re'entin$ e%istin$ works from )ein$ the su)+ect of

further co&yri$ht &rotection in the a)sence of some additional contri)ution since

this function could )e achie'ed )y re4uirin$ that the work must not already e%ist

7as is the case with entre&reneurial works:( it seems that the ori$inality

re4uirement is intended to do somethin$ more. 9hat this is( howe'er( is unclear.

It is 'ery difficult if not im&ossi)le to state with any &recision what

co&yri$ht law means when it demands that works )e ori$inal. 2 ,his uncertainty

has )een e%acer)ated )y the fact that as &art of the harmoni;ation of co&yri$ht law

in


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ori$inality does not mean that the work is in'enti'e( no'el or uni4ue.6 Instead(

when co&yri$ht says that a work must )e ori$inal( this means that the author must

ha'e e%ercised the re4uisite la)our( skill( or effort in &roducin$ the work. 9hile

the no'elty re4uirement in &atent law focuses on the relationshi& )etween the

in'ention and the state of the art( the ori$inality e%amination is more concerned

with the relatIonsh! )etween the creator and the work. More s&astically in

determinin$ whether a work is ori$inal( co&yri$ht law focuses on the in&ut3the

la)our( skill or effort3that the author contri)uted to the resultin$ work. efore

lookin$ in more detail at ori$inality determined( it is necessary to make a num)er

of &reliminary remarks.

1/'L.).N$/2 .SS'S

7i: ,he first &oint to note is that in most cases the re4uisite la)our( skill( and

effort that is needed for a work to )e ori$inal will )e e%ercised in the way the

work is e%&ressedD in the way the &aint is a&&lied the words are chosen and

ordered( ideas e%ecuted( or the clay moulded. Bowe'er( the ori$inality of a work

may arise in the ste&s &recedin$ the &roduction of the work 7in the &re3e%&ressi'e

sta$e:.6 ,hat is( the la)our that confers ori$inality on a &articular work may arise

in the selection of the su)+ect matter or the arran$ement of the ima$e that comes

to )e em)odied in the &aintin$. In other cases( such as with res&ect to literary

com&ilations the courts will consider the footwork in'ol'ed in disco'erin$ the

information(6 or the selection or choice of the materials that are later em)odied in

the work. ,his has )een &articularly im&ortant in relation to ta)les and

com&ilations.

7ii: It is im&ortant to a&&reciate that the 4uestion of whether a work is ori$inal

often de&ends on the &articular cultural( social( and &olitical conte%t in which the

+ud$ment is made. In &art this is )ecause ori$inality turns on the way the la)our

and the resultin$ work are &ercei'ed )y the courts. ?ne of the conse4uences of

this is that what is seen as ori$inal may chan$e o'er time. A $ood e%am&le of this

is &ro'ided )y &hoto$ra&hy. 9hen in'ented in the !01s( &hoto$ra&hy was seen

as a non3creati'e 7and non3ori$inal: mechanical &rocess where)y ima$es were

For e%am&le in =elly '. Morris 7!0--: !


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&roduced )y e%&osin$ chemically sensiti'e materials to li$ht. In the late

nineteenth century( howe'er( &hoto$ra&hy came to )e seen as an artistic acti'ity.

As a result( &hoto$ra&hs came to )e seen as creati'e and thus &otentially ori$inal

works. Similar chan$es recently occurred in relation to the artistic works of

Australian A)ori$inals.1

7iii: ,he ne%t &oint to note is that the ori$inality threshold has )een set at a

'ery low le'el. It may come as a sur&rise for some to learn that the courts ha'e

acce&ted a ori$inal such thin$s as railway timeta)les and e%am &a&ers 7which

were drawn Iron: the stock of knowled$e common to mathematicians( &roduced

4uickly and included 4uestions similar to ones which had )een &re'iously asked

)y other e%aminers:# ?ne of the conse4uences of the ori$inality standard )ein$ set

at a low le'el is that there ha'e )een relati'ely few instances where su)+ect matter

has )een e%cluded on the )asis that it was non3ori$inal. Most of the &ro)lems that

ha'e arisen ha'e )een in rd!mtinii to ta)les and com&ilations( deri'ati'e works

7that is( works which incor&orate material co&ied from another source:( and

industrial desi$ns. ?ri$inality may )e im&ortant( howe'er( in so far as it &lays a

role in ascertainin$ whether a su)stitution &art of a work has )een taken 7which is

sometimes used to esta)lish infrin$ement:. ?ri$inality has also &layed an

im&ortant role in decidin$ whether new classes of works 7&hoto$ra&hy in the

nineteenth century and more recently A)ori$inal art: ou$ht to )e &rotected )y

co&yri$ht law. ,here is also a &ossi)ility that the $rowin$ +udicial sus&icion a)out

the o'er3e%tension of co&yri$ht may mean that ori$inality conies to )e used as a

way oh restrictin$ the sco&e of the su)+ect matter &rotected )y co&yri$ht law.

7i': Non3di'ision of the work. ?ne of the most im&ortant and at the same time one

of the most ne$lected issues in co&yri$ht law concerns the nature of the co&yri$ht

workD &articularly as to the way the )oundaries of the work are to he determined.

9hile we discuss this in more detail later( it is im&ortant to note that( while in aim

infrin$ement action it is &ossi)le to di'ide a work into &rotected and non3

&rotected &arts( when considerin$ whether a work is ori$inal it is not &ossi)le to

1 See . Sherman( 5From the Non3ori$inal to the A)ori$inal6( in Sherman and

Strowell.

# *ni'ersity of London Press '. *ni'ersity ,utorial Press 7!8!-: 2 Ch 28

Althou$h widely referred to Peterson s comment that the work should ori$inate

from the author offers little assistance when differentiatin$ ori$inal and non3

ori$inal works.

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di'ide the work into elements. ,hat is( when considerin$ whether a work is

ori$inal! the work must )e e%amined as whole. ,his was made clear in Ladlyroke

'. 9illiam Bill- where he 4uestion are as to whether foot)all &ool cou&ons 7which

listed matches to )e &layed and offered a 'ariety at arran$ed in si%teen cate$ories

were ori$inal com&ilations on the )asis that the e%&ressi'e form of the cou&ons

ine'ita)ly followed from the commercial decisions as to the )ets which should )e

offered the a&&ellants ar$ared that the cou&ons were not ori$inal the house of

Lords re+ected these claims accordin$ to lord >eid it was incorrect to artificially

di'ide the in4uiry u& on the one hand into the commercial decisions a)out which

)ets to offer and on the other the form and arran$ement of the ta)le the selection

of wa$ers and their &resentation was so interconnected as to )e inse&ara)le

conse4uently it was ina&&ro&riate to dissert the la)our skill and ud$ment.

D'*'/).N.N( &5'*5'/ $ &O/% .S O/.(.N$L

As it is e%&lained a)o'e when co&yri$ht says that a work must )e ori$inal this

means that the author must ha'e e%ercised the re4uisite la)our skill or effort in

&roducin$ the work. 9hile &atent law is concerned with the relationshi& )etween

the in'ention and the information in the &u)lic domain the ori$inally e%amination

is more concerned with the relationshi& )etween the creator and the work. ,his

means that in determinin$ whether a work is ori$inal co&yri$ht law focuses on the

in&ut the la)our skill or effort that the author contri)uted to the resultin$ work.

In creatin$ a work an author will normally e%ercise la)our skill and effort

in a num)er of different ways for e%am&le in &roducin$ a &ortent a &ainter may

e%ercise in$enuity time and effort in the choice of su)+ect matter who where in

what &ose a$ainst what )ack$round in ensurin$ that the sitter is rela%edD

stretchin$ the can'as and makin$ the frame de'elo&in$ new techni4ues of

&aintin$ in ensurin$ that the &aints and materials used are en'ironmentally

friendly in the mi%in$ of the colours in choosin$ a title for the work and in

e%&lainin$ the &aintin$ to critics and re'iewers. 9hile each of these ste&s may

hel& to make the &aintin$ a success only some of them will )e taken into account

in decidin$ whether the resultin$ work is ori$inal. ,he reason for this is as Lord

- 7!8-1: !. All F> 1-#( 1-8 7Lord >eid: Foot)all Lea$ue V. Littlewoods 7!8#8: Ch -"( -#1ookmarkers A+tertioon V Eil)ert 7!881: FS> "2.

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?li'er said in Interle$o only certain kinds of skill la)our and ud$ment confer

ori$inality."

In &art these difficulties arise )ecause the effort skill or ud$ement which is

needed to confer ori$inality on a work cannot )e defined in &recise terms. ,his is

)ecause ori$inality must de&end lar$ely on the facts of the case and must in each

case )e 'ery much a 4uestion of de$ree. As a result it is 'ery difficult to e%&lain

ori$inality in terms at any o'erarchin$ &rinci&les or rules. Ei'es this &erha&s the

)est a&&roach is to took at ori$inality in terms of the ty&es of work in 4uestion. ,o

this end we will look at the ways the courts a&&roach ori$inality in relation to the

followin$ ty&es of works.

7i: new works

7ii: deri'ati'e works

7iii: ta)les and com&ilation

7i': data)ases com&uter &ro$rams and &hoto$ra&h and

7': com&uter $enerated works.

New wor7!

,he first situation we wish consider is where a new work is created. 0 In

&articular we wish to consider the situation for e%am&le where ins&ired )y a

&articular e'ent a &erson sits down at their desk and writes a &oem or a son$. As in

these circumstances the work clearly emanates from the author( there are unlikely

to )e any &ro)lems in showin$ ori$inality. ,he one e%ce&tion to this is where the

la)our is tri'ial or insi$nificant. 9hile in most cases this &rinci&le is

uncontro'ersial difficult issues arise in relation to artistic works. ,he reason for

this is that while in some contests the drawin$ or a strai$ht line or a circle may )e

re$arded as tri'ial when &ainted )y a >othco or a &icasso( it would 7or at least

should :not )e. ,his was in effect the &osition in ritish Northro& where it was

a$rued that drawin$s of thin$s such as ri'ets screws. studs a )olt and a len$ht or

wire lacked ori$inality )ecause they were too sim&le. In re+ectin$ the ar$ument(

Me$arry I said that he would )e show to e%clude drawin$s from co&yri$ht on the

" Interle$o '. ,yco Industries 7!808: AC 2!"( 2-0 7Lord ?li'er:0 9hile works are ne'er created de no'o( we ha'e used term new works as a way of distin$uishin$

deri'ati'e works. It should also )e noted that these cate$ories are not mutually e%clusi'e there isno reason deri'ati'e work 7or a deri'ati'e work:

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mere score of sim&licity or on the )asis that they were of elementary or

common&lace o)+ects.8 ,he courts ha'e also )een show to conclude that )ecause a

literary work is small it lacks ori$inality.!

Derivative or copied wor7!

,he ne%t ty&e or creation of creation that we wish to consider are the so3called

deri'ati'e works that is works which are deri'ed from or )ased u&on &re3e%istin$

works 7whether or not they are &rotected )y co&yri$ht law has lon$ reco$ni;ed

that it is im&ortant that authors should )e a)le to draw and )uild u&on other

works. Bowe'er in order to ensure that co&yri$ht works are not &rotected in

&er&etuity which would otherwise )e the case co&yri$ht im&oses limits on the

ty&es of deri'ati'e works that will )e &rotected. ,o this end( authors can co&y 7or

use: &re3e%istin$ materials and still $et co&yri$ht &rotection in the resultin$ work

so lon$ as they )rin$ a)out a material chan$e to the raw material more s&ecifically

the la)our skill and ca&ital must ha'e im&arted to the &roduct some 4uality or

character which the raw material did not &ossess and which differentiates the

&roduct from the raw material.!! In so doin$ the law ensures that any co&yri$ht

that is ac4uired in a deri'ati'e work is distinct from the ori$inal work that is

incor&orated into it.!2 ,he difficult 4uestion is decidin$ where to draw the line

)etween le$itimate )orrowin$ from e%istin$ sources and ille$itimate co&yin$.

It is 'ery difficult to define what the somethin$ s&ecial is that distin$uishes

ori$inal and non3 ori$inal deri'ati'e works. In &art this is )ecause it is difficult to

descri)e in &ositi'es terms e%actly what it is that the ori$inality re4uirement

in'ol'es. Ei'en this &erha&s the )est way to a&&roach this issue is to focus on

those 7limited: situations where chan$es made to the raw material ha'e )een held

8 ritish Northro& '. ,e%team lack)urn 7!8"1: >PC#"( -0 See also karo ,rade

Mark 7!8"": >PC 2##( 2" e%&ect of the case of strai$ht line drawn with a ruler 7a

case of such )arren and naked sim&licity which would not )e a 'ery &romisin$

su)+ect for co&yri$ht.:

! In some cases where the resultin$ work is re$arded as sufficiently creati'e( the

work may )e 'ery small e%tract of four lines from &oem if =i&lin$ '. Eenatson

7!8!"32: Mac$. CC 2

!! Macmillan '. Coo&er 7!821: 1 ,L> !0-( !00( 7!82: 8 LPC !!( /escri)ed

in Interle$o as &erha&s the most useful e%e$esis on the issue of ori$inality

!2 It the ori$inal work is still a&&arent in the new 'ersion the licence of the

co&yri$ht owner of the ori$inal will )e needed )y )oth the maker or the new

'ersion and any third &arty co&ier

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to )e non material and thus non ori$inal. efore lookin$ at the situations where a

&erson e%ercises la)our in the creation of a deri'ati'e work yet the resultin$ work

will not )e ori$inal. It is necessary to make two &reliminary comments.

It should also )e noted that the re4uirement that the la)our needs to

&roduce a materially different work for it to )e ori$inal is unnecessary where the

same author &roduces a series of drawin$s or drafts.! As Nourse L e%&lainedD

9hat the Co&yri$ht Act re4uires is that the work should )e the ori$inal work of its

author if( in the course of &roducin$ a finished drawin$( the author &roduces one

or more &reliminary 'ersions the finished &roduct does not case to )e his ori$inal

work sim&ly )ecause he ado&ts it without much 'ariation or e'en it he sim&ly

co&ies it from an earlier 'ersion. PC #"( -0

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la)our may )e de'oted to the &rocess cannot make a work ori$inal. More

s&ecifically he said a well e%ecuted tracin$ is the result of much la)our and skill

)ut remains what it is( a tracin$. It is clear that the reason why tracin$ and

&hotoco&yin$ do not &roduce ori$inal works is not that there is no la)our. >ather

it is that it is not the ri$ht ty&e of la)our.

7ii:9here the chan$e is a result of a mechanical or automatic &rocess another

situation where that courts ha'e su$$ested that a chan$e made to a work will )e

non material is where the chan$e that occurs in the resultin$ work is a

conse4uence of a mechanical or automatic &rocess. ,he definin$ feature of a

mechanical or automatic &rocess )ein$ the a)sence of human in&utD the element

that underlies the ori$inality e%amination for e%am&le in one case it was su$$ested

that the makin$ of a chronolo$ical list which is automatic and only re4uires

&ainstakin$ accuracy would not of itself )e ori$inal. ,he reason for this is that the

makin$ of a chronolo$ical list re4uires no element of teste or selection +ud$ement

or in$enuity .!- In another it was held that the routine a&&lication of a formula to

&roduce forecast di'idends on $reyhound races was not sufficiently ori$inal. In

another case the &hotoco&yin$ of an ima$e 7and enlar$in$ it )y ! &ercent: was

said to )e wholly mechanical and thus lackin$ in ori$inality.

It is &ossi)le to ima$ine other situations where the &rocess of &roducin$ a

work may )e so routine and formulaic that it is effecti'ely a mechanical &rocess

thus renderin$ it non ori$inal that is there may )e other instances where the author

is so constrained in terms of the choice that he or she is a)le to e%ercise o'er the

resultin$ &roduct. ,his may )e the case( for e%am&le where the features e%&ress

some en$ineerin$ &rinci&le(!" a com&uter &ro$ram needs to achie'e a &articular

function(!0 or in the drawin$ of functional o)+ects. Ei'es the low threshold that

needs to )e satisfied to show ori$inality( it seems that a creator would only need to

e%ercise a 'ery small de$ree of control o'er a work for it to )e ori$inal. In this

conte%t it should )e noted that the courts ha'e )een reluctant to e%clude artistic

works 7which include technical drawin$s: on the )asis that they are sim&le of

common&lace.

!- Foot)all Lea$ue '. Littlewoods 7!8#8: Ch -"( -#1

!" ritish Leyland '. Armstron$ 7!80-: >PC 2"8( 288- 7?li'er L+:!0 I)cos Com&uters '. arclays Mercantile Bi$hland Finance 7!881: FS> 2"#

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?ne 4uestion that remains unanswered in this conte%t is whether the di$iti;ation

of a work 7with no other chan$es: is sufficient to confer ori$inality on the

resultin$ work. For e%am&le would the di$ital scannin$ of a no'el or the creation

of a di$ital data)ase from non di$ital sources $i'e rise to an ori$inal workG some

commentators ha'e su$$ested that the translation of a work into a di$ital format

7in the case of a literary work from a ty&o$ra&hical character to numerical token:

!8 may $i'e rise to an ori$inal work. 9hile there can )e no dou)t that the &rocess

of di$iti;ation does &roduce a &roduct which is different it is dou)tful whether it

would constitute a material chan$e such as to confer ori$inality on the resultin$

work.

7iii:9here the chan$e to the resultin$ work is non material in some situations

ori$inality has )een denied where the la)ours of a creator fail to )rin$ a)out a

material chan$e in the resultin$ &roduct. ,hat is while the efforts of the author

may ha'e led to a chan$e in the resultin$ &roduct the chan$e 7thus the la)our: is

not re$arded as sufficient to confer ori$inality on the resultin$ con'ersely where

the chan$e is material( the work will )e ori$inal ,his a&&roach has )een used to

confer ori$inality on new editions(2 com&ilation antholo$ies translations

ada&tations of &ree%istin$ materials( as arran$ements of music( and en$ra'in$s in

all these cases the la)our of the author not only &roduced a chan$e it also

&roduced what was taken to )e a material chan$e in he raw material. ,his can )e

seen for e%am&le in Macmillan '. Coo&er where the Pri'y Council was called

u&on to decide whether a selection of 2( words for a school)oy 'ersion of a

1( word translation of PlutarchHs )ook the Life of Ale%ander was ori$inal as

Lord Atkinson e%&lained co&yri$ht could e%ist in such a selection is such la)our

skill and ca&ital had )een e%&ended sufficiently to im&art to the &roduct some

4uality or character which the raw material did not &ossess and which

differentiates the &roduct from the raw material( An im&ortant factor in the

findin$ that the selection was not ori$inal and thus not &rotected )y co&yri$ht was

that the &rocess of selection was moti'ated )y a desire to e%clude material which

was of an indecent or indelicate character and unfit for schoolchildren. Such a

&rocess did not re4uired $reat knowled$e sound +ud$ement literary skill or taste to

!8 Laddie et al &ara 2.-" su$$est that it was akin to the co&yri$ht &rotection $i'en to the

s&eechwriter in 9alter '. Lane 7!8: AE #8.

2 lack '. Murray 7!0": Ma$ ECC 1!( ##.

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)e )rou$ht to )ear u&on the translation. 2!,hat is the reduction did not in'ol'e the

a&&lication of the somethin$ s&ecial that is needed to confer ori$inality on the

resultin$ work.

,his decision can )e usefully contrasted with Macmilan Pu)lishers '. ,homas

>eed Pu)lications. ,he case turned on whether the &u)lication of a num)er of

small local charts that contained an outline of the coastline as well as rele'ant

information 7such as de&th soundin$s )uoys and $eo$ra&hical features :were

ori$inal More s&ecifically the 4uestion arose as to whether the charts were ori$inal

$i'en that they wee drawn the 4uestion arose as to whether the charts were

ori$inal $i'en that they were drawn from and )ased u&on Admiralty charts. *nlike

the la)our which was used in Macmillan '. Coo&er the Bi$h Court held that the

la)our used in &roducin$ the sim&lified charts in'ol'ed the a&&ro&riate le'el of

work and skill for the resultin$ work to )e ori$inal.

In this conte%t it may )e hel&ful to &ause and ask what is it that

distin$uishes the non3 ori$inal reduction in Macmillan '. Coo&er from the

sim&lification in Macmillan '. >eed that was held to )e ori$inal. Some $uidance

as to the way this 4uestion may )e answered is offered in Macmillan '. Coo&er

where the Pri'y Council distin$uished the non3 ori$inal reduction from a

7hy&othetical: a)rid$ment( which would ha'e )een ori$inal had it )een carried

out. 9hile the reduction of the Life of Ale%ander from 1( to 2( words

was not ori$inal the Pri'y Council said that the 7hy&othetical: &rocess of

a)rid$ment would ha'e re4uired some form of learnin$ ud$ement literary teste

and skill.22 ,hat is is lacked what the courts saw as the necessary skills to 4uality

for &rotection. uotin$ from an early edition of Cosi$erHs ,reatise on co&yri$ht

the Pri'y Council said the act of a)rid$ment is an e%ertion of the indi'iduality

em&loyed in mouldin$ and transfusin$ a lar$e work into a small com&ass

Inde&endent la)our must )e a&&arent and the reduction of the si;e and work )y

co&yin$ some of its &arts and omittin$ others does not do this. In contrast the

Pri'y Council said that the reduction of the Life of Ale%ander from 1( to

2( works was non ori$inal )ecause it lacked the e%ertion of the indi'iduality

em&loyed in moundin$ and transformin$ a lar$e work into a small com&ass.

2! Mar Millan '. Coo&er 7!821: 1 ,L> !0-.22 MacMillan '. coo&er 7!8231: 1 ,L> !0-( !0".

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7i': 9here the la)our is of the6 wron$ kind. Another situation where an author

may e%ercise a considera)le amount of la)our and the work not )e ori$inal is

where the ty&e of la)our used does not corres&ond to the ty&e of work for which

&rotection is sou$ht. ,his can )e seen in Interle$o where the Pri'y Council was

called u&on to decide whether there was co&yri$ht in drawin$s for the children6s

)uildin$ )locks known as Le$o )ricks. After Lo$o6s &atents and desi$ns in the

)ricks e%&ired in !8"#( Le$o sou$ht to retain its mono&oly o'er the )ricks )y

claimin$ that co&yri$ht e%isted in drawin$s &roduced in !8". As these drawin$s

were )ased u&on earlier drawin$s( the 4uestion arose as to whether the alterations

made in !8" were sufficient to &roduce an ori$inal artistic work. ,he ma+or

differences )etween the drawin$s concerned the shar&enin$ of the outer ed$es of

the tu)es on the )rick( chan$es in tolerances and increase in the radii on the outer

ed$es of the kno)s on the )ricks from .2 to . mm. ?f the chan$es made( only

the first was shown &ictorially( the others )y letters and fi$ures .2

9hile the Pri'y Council reco$ni;ed that these chan$es were technically

si$nificant and the result of considera)le la)our and e%&ertise( they denied that

there was co&yri$ht it the later drawin$s. Lord ?li'er did not necessarily mean

that it was therefore an ori$inal drawin$. As Lord ?li'er e%&lained 7t: here must

in addition )e some element of material alteration of em)ellishment which

suffices to make the totality of the work an ori$inal work. 9hile Lord ?li'er

acknowled$ed that this could )e a relati'ely small alteration( he added the

im&ortant rider that in the case of artistic works the chan$e must )e 'isually

si$nificant. ,hat is. to confer co&yri$ht the skill and la)our must )e rele'ant to tic

work in 4uestion( ?n the facts it was held that as the chan$es made to the

drawin$s were Primarily to the written s&ecifications( this was not an alteration of

'isual si$nificance.6 As such( the drawin$s were not ori$inal. If this &rinci&le IS

a&&lied in other Conte%ts( it may ha'e im&ortant ramifications for forms of

a&&ro&riation artJ that is where artists focus on the meanin$ rather than the 'isual

a&&earance of the work.21

*able! and compilation!

2 Interle$o '. lyco Industries 7!808: AC 2!".21 See . Sherman( 5A&&ro&riatin$ the Postmodern Co&yri$ht and the Challen$e of the New6

7!88#: 1 Social K Le$al Studies ! P. Anderson( 5?n the Le$al Limits of Art6 7!881: Arts Ke'iew ".

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In this section( we consider the way in which the ori$inality of ta)les and

com&ilations has )een a&&roached. As we e%&lained earlier( as a result of the

/ata)ase /irecti'e the law in this area has recently under$one a num)er of

chan$esD nota)ly( the introduction of a new standard of ori$inality for data)ases.

9hile this to&ic is discussed )elow( it is first necessary to look at the way the

ori$inality of ta)les and com&ilations has )een dealt with in the &ast.

?'er time the courts ha'e used two different and lar$ely inconsistent

a&&roaches when determinin$ whether ta)les and com&ilations are ori$inal. 9hile

the a&&roaches are similar in so far as they focus u&on the la)our e%ercised in the

creation of the work( they differ in terms of the ty&e of la)our that is needed for

the work to )e ori$inal. In some cases( ori$inality arises throu$h the a&&lication of

the a&&ro&riate skill( la)our( and effort in the creation of the work 7the 4uality of

the la)our used in creation of the work:. More contro'ersially( ori$inality can also

arise throu$h the a&&lication of a sufficient amount of routine la)our 7the 4uantity

of the la)our used in creation of the work:. 9e will deal with each in turn.

7i: uality of the la)our. ,he ori$inality of ta)les and com&ilations may arise

throu$h the a&&lication of the a&&ro&riate skill( la)our( and effort in the creation of

the work 7the 4uality of the la)our used in creation of the work:. It seems that the

re4uisite La)our may )e em&loyed either in the way the information to )e

included in the com&ilation is selected( or the way that information is arran$ed.

For e%am&le( if we take the case of an edited collection ori$inality may arise as a

result of the way the author to )e included in the 'olume are selected or throu$h

the way the cha&ter are ori$ani;ed $i'en that ta)les and com&ilation are similar to

deri'ati'e works 7a list is after all made u& from &re e%istin$ material: the

comments made a)o'e a)out the ori$inal it of deri'ati'e works a&&ly here.

Lookin$ at the 4uestion ne$ati'ely it scams that a ta)le or com&ilation would not

)e ori$inal where the selection and arran$ement is directly or sla'ishly co&ied

from another work another situation where a com&ilation would lack ori$inality is

where the resultin$ work is a conse4uence of a mechanical automatic of formulaic

&rocess. ,he &osition would )e the same where the material to )e included in a

com&ilation was selected automatically. ,he reason for this is that the definin$

feature of a mechanical or automatic &rocess is the a)sence of human in&ut the

element that underlies the ori$inality e%amination in one case it was su$$ested

that the makin$ of a chronolo$ical list which is automatic and only re4uires

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&ainstakin$ accuracy would not of itself )e ori$inal.2# reason for this is that the

makin$ of a chronolo$ical list re4uires no element of taste or selection +ud$ement

or in$enuity. ?n this )asis it seems that where a list is or$ani;ed al&ha)etically it

would not $i'e rise to an ori$inal work 7althou$h ori$inality may arise throu$h the

4uantity of la)our used in creatin$ the com&ilation:

7ii: uantity of the la)our. In certain situations the courts ha'e acce&ted that

themere e%ercise of a su)stantial amount of routine la)our may $i'e rise to an

ori$inal work.6 For e%am&le( where a com&iler s&ends a considera)le amount of

time and effort creatin$ a chronolo$ical list of tele'ision &ro$rammes or an

alchemically ordered list of layers( the resultin$ work will )e ori$inal. ,hat is(

e'en thou$h in creatin$ the ta)le or com&ilation the author may not ha'e

e%ercised the a&&ro&riate 4uality of la)our( the work may nonetheless still )e

ori$inal if the &rocess of com&ilation in'ol'es a sufficient le'el of 7mundane:

la)our.

9here there is insufficient la)our 7and ori$inality does not arise throu$h the

e%ercise of re4uisite 4ualitati'e skill( la)our( and effort:( the resultin$ work will

not )e ori$inal.2- For e%am&le( where the &rocess of com&ilation in'ol'es little

effort or +ud$ement and the effect is common&lace( the work will not )e treated as

ori$inal. ,hus the selection of se'en ta)les at the front of a diary( consistin$ of

thin$s such as days and dates of the year( ta)les of wei$hts and measures( &ostal

information was held to )e non3ori$inal. Similarly in another case a com&ilation

of a local timeta)le chewin$ a selection of trains to and from a &articular town that

was made from official railway timeta)les was held to )e non3ori$inal. In these

circumstances the difficult 4uestion is knowin$ how much la)our needs to )e

e%ercised for the resultin$ work to )e ori$inal.2"

,he willin$ness to acce&t that a su)stantial amount of routine la)our may $i'e rise

an ori$inal work is usually e%&lained in terms of the fact that defendants out$ht

not to he a)le to a'ail themsel'es of the la)our and e%&ense which a claimant

in'ested in the &roduction of a work. Instead of askin$ whether the work is

2# In relation to indis&uta)le facts 7such as when the sun rises or sets:( it was said

that there is no room for taste or +ud$ment. ,here remains the element of choice as

to what information should he $i'en6 all and ta)le can do is state the facts

accuratelyJ Cram& '. Sniythson !!811! AC 28( - 7Viscount Simon:.2-


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ori$inal and thus &rotecta)le. 9here the courts ha'e focused on the 4uantity of the

la)our e%ercised in the creation of the work they ha'e tended to Start from the

&remises that any La)our or effort that a claimant e%ercised in the &roduction of

work ou$ht to )e &rotected 7so lon$ as it reaches the re4uisite 4uantitati'e

threshold:. ,his is re+ected in the mamD what is worth co&yin$ is &rima facie

worth &rotectin$620 ?ne issue that has yet to he answered in this conte%t( to which

we will return shortly( relates to the im&act that the new standard of ori$inality

which As flow to )e a&&lied to data)asesD namely( of author6s own intellectual

creation will ha'e u&on these decisions.

,he &osition in the *= where the e%ercise of non3creati'e la)our can $i'e rise to

an ori$inal work can )e contrasted with the &osition in other +urisdictions such as

Eermany 7where case law su$$ests that there is a re4uirement of some minimal

de$ree of creati'ity: and France 7where ori$inality is said to re4uire 5the im&rint

of the author6s &ersonality6 on the work or an intellectual contri)ution:. ,he *=

&osition is also at odds with the &osition in the *SA where( as the Su&reme Court

&ointed out in the Ferst decision( a work must ha'e at least a minimal de$ree of

creati'ity to )e &rotected.28 In relation to the 4uestion of the ori$inality of a white3

&a$e tele&hone directory( the Su&reme Court held that since facts were not

created( the names and num)ers were not themsel'es 5co&yri$hta)le6. Moreo'er(

while the collection mi$ht ha'e )een ori$inal had the selection or arran$ement

in'ol'ed some minimal creati'ity as the directory in 4uestion had )een selected )y

area and arran$ed al&ha)etically it did not meet that minimum threshold.

It should )e noted that routine la)our has only )een used to confer ori$inality on

the resultin$ work in the *= in a limited num)er of situations. In &articular( it has

only )een a&&lied to a limited cate$ory of worksD lar$ely to ta)les and

com&ilations of thin$s such as ma&s( $uide)ooks. street directories( dictionaries(

works and selected of &oems More s&ecifically the cases which ha'e acce&ted that

ori$inality can arise throu$h the e%ercise of a sufficient de$ree of la)our ha'e

tended to focus on the amount of la)our e%ercised in the amount of materials to )e

included in ta)les a com&ilations that is. they take &lace in the &re3e%&ressi'e

rather than the e%&ress sta$e.

20 *ni'ersity of London Press '. *ni'ersity ,utorial Press @!8!-: 2 Ch -!

28 Feist Pu)lications '. >ural ,ele&hone Ser'ice to. 188 *S 17! 7!88!:.

Cram& ' Smythson !I8I AC 28(

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Databa!e! photograph! and computer programs

As we ha'e already noted( the e$ulations e%&licitly amended the

ori$inality re4uirement of the !800 Co&yri$ht Act in relation to data)ases to

include the new criterion of the

5author6s own intellectual creation6 In &articular( section A72: says that 5a literary

work consistin$ of a data)ase is ori$inal if( and only if )y reason of the selection

or arran$ement of the contents of the data)ase the data)ase constitutes the

author6s own intellectual creation.6

,his inconsistent im&lementation of the


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,he &osition in the *= under the re'ised law is similar to the old law in that the

ori$inality of the data)ase may arise either throu$h 5the selection or arran$ement

the contents of the data)ase6 ,he e%tent to which the new law will differ de&ends

on the way 5an author6s own intellectual Creation is inter&reted )y the courts. At

&resent it is difficult to &redict how a will )e *lter &ried. It has )een widely

assumed that the new e$ime est Suits Com&uter Pro$ramsG6 in B. Bansen 7ed.:( International Intellectual Pro&erty

and Policy 7!88!(: !-#( !-0J . /re%l( 9hat Is Protected in a Com&uter Pro$ramG 7!881:( 8-3"

7em&hasi;in$ that the


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&osition of other


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to )e determined. ,he &articular &ro)lem that arises with com&uter3$enerated

works is that it is difficult to see how the e%istin$ criteria of ori$inality which

focuses on the relationshi& )etween the author and the work( can )e a&&lied to

com&uter3$enerated works which( )y definition( ha'e no readily.

Ei'en that com&uter3$enerated works are &rotected where there is no

human author( the 4uestion arisesD what is the test for ori$inality that is to )e

a&&lied to such worksG ?ne &ossi)le test would )e to ask whether the work was

&roduced as a result of the inde&endent acts of the com&uter. ,hat is( is the work

ori$inal in the sense that it was knot co&ied6G Alternati'ely( a court mi$ht say that

ori$inality e%ists where the com&uter has &roduced a work which is different from

&re'ious works 7i.e. it is no'el:. It has also )een su$$ested that the courts ou$ht to

ask the hy&othetical 4uestionD if the same work had )een $enerated )y a human

author would it ha'e re4uired the e%ercise of a su)stantial amount of skill( la)our(

and effortG If yes( then the com&uter3$enerated work would )e ori$inal.

Conclu!ion

As we ha'e seen( the law treats 5ori$inality6 to )e a test of ori$ination from the

author( skill( la)our and +ud$ement( and it has )een shown in the case3law that this

standard is 'ery low. Furthermore( the le$al definition of 5ori$inality6 )ears 'ery

limited resem)lance to the common conce&tion of the term( )ut in usin$ the word

5ori$inal6 we treat authors as thou$h they are sources of com&letely free and new

creation. Bowe'er( ar$uments made )y commentators such as essica Litman are

'ery forceful( and show that it is e%tremely unlikely that creation e%ists free of

influence and e%&erience.

ut when we consider alterin$ the le$al definition of 5ori$inality6 to com&ensate

for influence and e%&erience( we find oursel'es stru$$lin$ a$ainst e'idential

&ro)lems and difficulties in creatin$ definitions. Indeed( if Litman is correct in

assertin$ that nothin$ is ori$inal( a test of a)solute ori$inality would mean that

nothin$ would recei'e &rotection )ecause no work could )e created free from

C/PA s.87:( !"0. Cf. Payen Com&onets South CaI o'ic$askets7!88-: P> 1-(1!!7Su&reme Crt. of South Africa: 7distin$uishin$ )etween .&uter$enerated and com&utetai#ted6

works:. A&&arently the issue of such works was considered in the *SA as early as !8-#. See A.Miller( 5Co&yri$ht Protection for Com&uter Pro$rarns /ata)ases and Com&uter ener'ated 9orksDIs Anythin$ New since C?N,*G6 7!88: !- Bar'ard Law >e'iew 8""( !12 if. 7descri)in$ the

issue as co&yri$ht6s ne%t )attlefield6 )ut ar$uin$ that the &ro)lem remains conce&tual for themoment )ecause there will )e identifia)le human authors for the foreseea)le future:.

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influence and e%&erience. Ado&tin$ a system of &rotection de&endant on the le'el

of ori$inality still &resents the same &ro)lems( namely that a)solute ori$inality

still must )e identified. Also( identifyin$ influences from the millions of &ossi)le

e%&eriences in one6s lifetime would )e insurmounta)le and +ury decisions would

&ro'ide no reasonin$ and thus the system would )ecome too 'a$ue. S&ecific

re4uirements of ori$inality &er medium is also flawed )ecause of the com&le%ities

of definin$ a &articular $enre and the constant cross3fertilisation of different

styles.

,hus( redefinin$ the law6s re4uirement of 5ori$inality6 to )rin$ it into line

with the common conce&tion of the term &resents difficulties that may )e too

much trou)le. It could )e 'ia)le that the term 5ori$inal6 is su)stituted with

somethin$ more a&&ro&riate to the test that the law undertakes such as( for

e%am&le( the /e'elo&ment of Creati'e 9orks ,est. ut &erha&s other areas of

law could )e reformed( with the aim of &rotectin$ and increasin$ the &u)lic

domain( out of which creati'ity stems. At &resent( the law makes assum&tions of

ori$inality( e'en thou$h works may )e undeser'in$ of this &ri'ile$ed status and

this assum&tion should )e com)ated.

9e are all ca&a)le of creati'ity( and this is in no small &art down to influences

actin$ in our li'esJ the &laces we 'isit( the &eo&le we meet and the &eo&le who we

res&ect and admire. Authors should )e &roud of who and what influences them(

)ecause in many cases( without influences( the &eo&le that entertain and ins&ire us

may not ha'e started down the road of creati'ity.

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