Theconceptoforiginality

Introduction:
The determining criterion for copyright protection is originality. The threshold regarding originality differs in the copyright laws of today and is in general not very high.
The concept of originality:
Although the originality requirement has been long known for a long time1 no exact definition is given in national statutory laws. International conventions as TRIPS and the Berne Convention do not provide any definition either. As a result the threshold of originality differs in several countries and depends a lot on case law. A very traditional common law approach is the so-called ‘sweat-of-the-brow’ doctrine, according to which an author gains rights through simple diligence during the creation of a work and no substantial creativity is needed. The US rejected this doctrine in 1991 by considering mere collections of facts as unoriginal and thus not being protected by copyright, no matter how much work went into gathering them2.
In the UK the Copyright, Designs and Patents Act 1988 requires a work to be original, meaning the author must have exercised the requisite labour, skill or judgment in producing the work3. Especially in the UK even very simple works can be original4, but still originality ‘must depend largely on the facts of the case and must in each case be very much a question of degree’5. In Germany creativity is necessary, but only a minimum amount of it (a principle called “Kleine Münze”).
Regarding the European Union there has been made an attempt towards harmonization of copyright law and a definition of the criterion of originality is given in several Directives, but only concerning computer programs, databases and photographs. The only criterion needed for protection is the ‘author’s own intellectual creation’6 and ‘no tests as to the qualitative or aesthetic merits of the program should be applied’7. Other parts of copyright law are still not harmonized and it is up to the member states to decide about the circumstances of originality and the level of protection provided by copyright law.
While patent law focuses on the relationship between the invention and the state of art, based upon the novelty criterion, both the European and the British concept of originality are concerned with the relationship between the author and his work. That means originality is not concerned with whether the work is inventive, novel or unique8. By originality it is meant that the author must have exercised the required intellectual qualities (‘labour, skill, or effort’in the British, ‘intellectual creation’ in the European concept) in producing the work. The focus lies on the input that the author contributed to the resulting work with trivial works being excluded from protection.
Some authors state that the term ‘intellectual creation’ required by the European approach can be interpreted in a way that it does not require any change for some member states9 and an improvement therefore is very doubtful. Regarding photographs for example member states are allowed to give protection to non-original photographs (in the European sense)10. Insofar as the traditional UK standard is lower than the European standard this would allow the UK to
1 UK: general statutory requirement since 1911
2 Feist Publications v. Rural Telephone Service(1991) 499 U.S. 340
3 Ladbroke v. William Hill (1964) 1 All ER 465, 469 (Lord Reid)
4 British Northrop v. Texteam Blackburn (1974) RPC 57, 68: Megarry J stated he would be ‘slow to exclude drawings from copyright on the mere scope of simplicity’ or on the basis that they were elementary or commonplace objects.
5 Macmillan v. Cooper (1923) 93 LJPC 113 (Lord Atkinson)
6 Software Dir., Art. 1 (3); Database Dir. Art. 3 (1); Duration Dir. Art. 6
7 Duration Directive 2009/24/EC Recital (8)
8 University of London Press v. University Tutorial Press, 1916; Sawkins v. Hyperion, 2005: “Originality does not require novelty, usefulness, inventiveness, aesthetic merit, quality or value. A work may be complete rubbish and utterly worthless, but copyright protection may be available for it....“
9 G. Karnell, ‘European Originality: A Copyright Chimera’, in Intellectual Property and Information Law, 201-9
10 Duration Dir. 2006/116/EC Art. 6
maintain its lower standard. This critical view may be true in the short term, but it is left to the legal practice of the ECJ to eventually decide if a more standardised concept of originality will prevail and further harmonization will take place.
Additionally the perception of originality may change over time as it often depends on the particular cultural, social and political context in which the judgment is made, as can be seen regarding photography. Initially being understood as a non-creative and therefore non-original mechanical process it is now seen as an artistic activity and photographs are recognized as potential original works. Similar changes recently occurred in relation to Aboriginal art.
‘Originality’ therefore reflects the changes taking place in society and the requirement should be kept flexible in order to be able to adjust to current developments and changes.
One question unanswered in this context is whether the digitisation of a work, with no other changes (like the digital scanning of a novel) is sufficient to confer originality on the resulting work. It is doubtful whether digitisation in itself creates new rights. As the level of originality needed for the creation of copyright is not harmonised at European level, the answer may differ from one Member State to another and it may also vary for different types of digitisation11.
The scope of protection:
In order to consider a possible infringement of copyright, the scope of protection has to be clear. The level of originality and scope of protection are related to each other, thus the copying of an unoriginal part is not an infringement. It is a long-established principle that copyright protection is not granted to ideas which are embodied in or which may have inspired the work12. This principle is sometimes called the idea-expression dichotomy, meaning just the expression of an idea, not the idea itself is protected by copyrights13. This has also been recognized in international conventions, like the TRIPS and the WCT14. Copyright law does not provide a monopoly right, like the novelty criterion in patent law does. It only prevents unauthorized use of the form in which ideas or facts are expressed and protects just the results of individual creativity. Neither the ideas themselves nor the information contained in a protected work are covered by the protection. Thus those elements are free and others can make whatever use they wish of the ideas without committing an infringement.
The purpose of the exclusion of ideas from the scope of protection is to reconcile the divergent interests of copyright owners with those of users, other creators and the public. It has to be ensured that new works can be made dealing with the same topic or subject matter and that free expression is still possible. Political and economical ideas as well as historical facts are supposed to disseminate and a monopolization regarding culture, communication and creativity has to be avoided15. The intention of the line between idea and expression ‘is to enable a fair balance between protecting the rights of the author and allowing literary development’16.
Conclusion:
As there is no real definition for the term of originality on the one hand copyright protection may differ depending on the country where the author seeks it, which may lead to inequity. But on the other hand this lack of definition results in a very flexible threshold, which therefore gives also a lot of opportunities to react to developments yet to come.
11 Communication of the Commission of the European Communities, Brussels, 28.8.2009, COM(2009) 440 final (Europeana)
12 L.B. (Plastics) v. Swish Products (1979) FSR 145, 160
13 University of London Press v. University Tutorial Press, 1916
14 TRIPS Art. 9 (2); WCT Art. 2
15 L. Bently/ B. Sherman, Intellectual Property Law, 3rd edition 2009, p. 183, 184
16 Baigent v. Random House (2006) FSR (44) 893, 926。