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IP > 2.. C - originality > Flashcards

2.. C - originality Flashcards

1
Q

Ricketson

A

“the dividing line between original… works and unoriginal… works, remains an uncertain and shifting one”

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2
Q

MacMillion v Cooper (1923)

A

originality “must depend largely on the facts of the case and must in each case be very much a question of degree”

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3
Q

The classic test? (UK)

A

University of London Press v University Tutorial Press [1916]

3 parts

  • ORIGINATE from author
  • not slavishly copied (can be inspired or based)
  • NO novelty requirement or inventiveness or aesthetic merit
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4
Q

MOST COMMON LABEL FOR UK TEST?

A

SKILL LABOUR AND JUDGEMENT

  • basically looks for authorial contribution (originality means ORIGINATES from author not novel)
  • sometimes used disjunctively
  • sometimes other words are used (work, effort, knowledge)
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5
Q

NO REQUIREMENT FOR CREATIVE THOUGHT (UK test)

A

Ladbroke v William Hill

  • originality does not demand creative thought
  • artificial to divide process into expressive (writing down odds) and pre-expressive parts (coming up with the odds)

Lord Pearce: original does not demand original or inventive thought, just that work should ORIGINATE from the author

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6
Q

Amount of SLJ must be SUBSTANTIAL or at least not trivial

A

law declines to recognise originality if labour or result is trivial/insignificant

e.g. Merchandising Corporation v Harpbond situation (they said it wasn’t a painting but decision is also justifiable on basis of trivial outcome so no originality)

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7
Q

Lord Oliver (PC) - Interlego v Tyco

A

“only certain kinds of skill, labour, and judgement confer originality”

  • slavishly copying is labour but not originality
  • ‘well-executed tracing’ = SLJ but it “remains … a tracing”
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8
Q

Cramp v Smythson [1944]

A

POCKET DIARIES (tables in the front)

  • sweat of the brow is not enough (no originality - no C)
  • selection = no originality (chasing to include one of stock materials is minimum labour and judgement so not original)
  • quality of tables = tables itself have no variation of content (need to be accurate) so no room for judgement so no originality
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9
Q

Football League v Littlewoods Pools [1959]

A

FOOTBALL FIXTURE LISTS

  • sweat of the brow enough
  • there is SLJ and ingenuity in creation + painstaking hardworking
  • no C in facts/information but C in the way information is selected and arranged

it is the painstaking effort that justifies C protection

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10
Q

s.3A DATABASES

A

Where SWEAT OF THE BROW was enough in UK cases –> all databases

Dispute about whether SOTB is enough before for originality

NOW it deffo doesn’t exist –> where it was successful before was in databases and now database requires OWN INTELLECTUAL CREATION

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11
Q

Walter v Lane (HL)

A

reporter’s copyright

  • yes originality, so C in the report
  • considerable SLJ (to record accurately and precisely)
  • Speech marker = irrelevant (distinguish speech from record of speech)
  • C should prevent unfair competition (don’t reap where you don’t sow)
  • Giving C does NOT prevent other reporters making their own report and having C in that
  • POLICY considerations (support press, giving C for socially valuable activities)
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12
Q

Express Newspapers v News (UK) [1990]

A

2 potential C works - article itself and quotes inside the articles
- reporter has C in the reported quotes and article, and interviewee has C in literary work of the words fixated

  • BUT courts hesitated before saying it was infringed because rewording is rarely infringement
  • interview took SLJ (journalist selected questions, and which quotes to use)
  • Walter still good law - applied it here and said more SLJ than reports in Walter
  • cases = difficult, doesn’t distinguish between fixation and expression enough (no C just because fixated but if you contribute content/expression then you could get C)
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13
Q

Black v Murray

A

courts protect new editions (even though based on pre-existing works)

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14
Q

Byrne v Statist Co [1914])

A

Courts protect compilations, anthologies, translations (even though based on pre-existing works)

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15
Q

DERIVATIVE WORKS

A

pay attention to facts of each case – the cases do not necessarily fit together

An update/second edition of a book might not be protected – author must expend enough effort to make something new

Examine facts – in PQs, work out which elements match up with particular facts

Difficult Q: because you’re working out how much extra labour counts

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16
Q

Interlego v Tyco [1989]

A

RATIO: S & L in mere copying (no matter how much effort) does not give C

  • new drawings only differed in slight respects to the original bricks (slight sharpening of the edges), but mostly just changed technical specifications (around the drawings)

NO C IN MERE TRACING
YES Skill and Labour but no originality (no material alteration or embellishment/visually significant difference - so no originality, Lord Oliver)

17
Q

Hyperion Records v Sawkins [2005]

A

YES C
- SLJ in adding information that could potentially affect totality of sounds produced by musicians is pertinent

  • additions had sufficient aural and musical significance to attract C protection
  • NOT mere slavish copying (S added a quality work didn’t already possess, music is not just notes on a page, S affected playability of the original manuscript)
18
Q

ZYX Music v King [1997]

A

Q of whether derivative work has C is SEPARATE to whether derivative work infringes C in first work

  • can infringe original song but also have C
19
Q

Antiquesportfolio.Com v. Rodney Fitch [2001]

A

SIMPLE photos of 3D objects can have originality

- considerations of aesthetic judgement: positioning, angle, lighting, focus

20
Q

Eva-Maria Painer v Standard VerlagsGmbH, [2012]

A

Original if AUTHORS OWN INTELLECTUAL CREATION

  • it is, if photographer had to express creative abilities by making free, creative, choices
  • photographer could include PERSONAL TOUCH so photo has C
  • P’s personality reflected in arrangements
21
Q

Temple Island Collections Ltd v New English Teas Ltd [2012]

A

The fact photo was of LDN landmark = does not mean it is not original

3 aspects to originality in photos (Birss J):
1. specialities of angle, shot, light/shade, exposure, technique

  1. creation of scene to be photographed
  2. right place at the right time

here it was 1 and 3 (and manipulation later)
- is 3 alone enough (e.g. goals/nature pics)? doesn’t matter, 1 will always be involved

22
Q

Bridgeman Art Library v Corel (1999)

A

US CASE but courts applied UK law

  • photo of 2D object (piece of art for postcards)
  • HELD: NO C (no visual difference or amendments)

CASE HIGHLY CRITICISED

23
Q

Newspaper Licensing Agency v Meltwater

A

British courts had been reluctant to protect titles, slogans, and short phrases but after Infopaq, this attitude seems to be changing

  • in this case, CA held “policy considerations” that may once have informed UK reluctance are now irrelevant
  • some headlines will have C
  • Proudman J adopted the definition of originality from Infopaq (and CA confirmed)
  • depends on LENGTH (longer = more likely to have personal touch) and QUALITY (descriptive? alliteration?)

if protection of titles is now governed by Infopaq then there is some guidance

24
Q

Infopaq v Danske (EU ORIGINALITY STANDARD)

A

C applies to all works which are the author’s own intellectual creation

  • creative choice?
  • creative expression?
25
Q

APPLYING INFOPAQ OUTSIDE OF INFRINGEMENT CONTEXT

A

Eva-Maria Painer v Standard (photo - own intellectual creation if make creative choice on angles, poses, lightning)

BSA - no C in GUI because no author’s own intellectual creation (dictated by function, no room for originality)

FAPL v QC Leisure - UK said football match is not a category of work so not protected, ECJ said it is not original (dictated by rules and constrained so no ability for creative choices)

26
Q

Football Dataco v Yahoo! UK Ltd [2012]

A

CONFIRMED INFOPAQ own intellectual creation test

  • TEST NOW HARMONISED
  • selecting data can be original but here it is CONSTRAINED so no room for creative choice and therefore not likely original (SLJ doesn’t affect it)

CONTRAST LADBROKE:
it said not to break ‘originality’ into expression and pre-expression (but they did that here, only looked at expression not creation)

27
Q

Meltwater v NLA [2012]

A

Court said Infopaq is really about explaining that originality is not a test of novelty (and that was always the UK position)

  • INFOPAQ did not change the UK test
  • BUT he concludes that headlines are original because of a lot of SLJ (so cites UK law which would suggest not original, rejects EU test which would say it is enough to be original, then concludes headlines are original)
  • perhaps suggesting UK test has evolved so now it can be called equivalent to EU test
28
Q

SAS Institute Inc v World Programming

A

Court explicitly considered whether it is OWN INTELELCTUAL CREATION using Infopaq language

  • the more restricted choices are the. less likely creative choice
  • he says the law has changed and that this has raised the hurdle for protection

NO CONFIRMATION FROM HIGHER COURT

IP (18 decks)

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