2.. C - originality Flashcards
Ricketson
“the dividing line between original… works and unoriginal… works, remains an uncertain and shifting one”
MacMillion v Cooper (1923)
originality “must depend largely on the facts of the case and must in each case be very much a question of degree”
The classic test? (UK)
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
MOST COMMON LABEL FOR UK TEST?
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)
NO REQUIREMENT FOR CREATIVE THOUGHT (UK test)
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
Amount of SLJ must be SUBSTANTIAL or at least not trivial
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)
Lord Oliver (PC) - Interlego v Tyco
“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”
Cramp v Smythson [1944]
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
Football League v Littlewoods Pools [1959]
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
s.3A DATABASES
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
Walter v Lane (HL)
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)
Express Newspapers v News (UK) [1990]
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)
Black v Murray
courts protect new editions (even though based on pre-existing works)
Byrne v Statist Co [1914])
Courts protect compilations, anthologies, translations (even though based on pre-existing works)
DERIVATIVE WORKS
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
Interlego v Tyco [1989]
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)
Hyperion Records v Sawkins [2005]
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)
ZYX Music v King [1997]
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
Antiquesportfolio.Com v. Rodney Fitch [2001]
SIMPLE photos of 3D objects can have originality
- considerations of aesthetic judgement: positioning, angle, lighting, focus
Eva-Maria Painer v Standard VerlagsGmbH, [2012]
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
Temple Island Collections Ltd v New English Teas Ltd [2012]
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
- creation of scene to be photographed
- 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
Bridgeman Art Library v Corel (1999)
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
Newspaper Licensing Agency v Meltwater
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
Infopaq v Danske (EU ORIGINALITY STANDARD)
C applies to all works which are the author’s own intellectual creation
- creative choice?
- creative expression?
