Originality Flashcards
CDPA
CDPA s1(1) makes clear that LDMA works must be ‘original’ in order for CR to subsist.
Apart from databases (AOIC) the act provides no definition for originality.
EU Test
AOIC
Harmonisation of originality has been limited to computer programs, photographs and databases as these manifested the greatest disparities across MS (NB indirect effect!)
EU Test: Infopaq
The various parts of a work enjoy protection provided they contain elements which are the expression of the AOIC of the work.
As regards newspaper articles, AOIC is evidenced clearly from form, manner and linguistic expression.
It is only through the choice, sequence and combination of these words that an author may express his creativity in and original manner. Words therefore do not constitute elements covered by the protection.
EU Test: SAS Institute
ECJ: CR protects only the expression of AOIC
Keywords, syntax, commands and combinations of commands, options, defaults etc considered in isolation are not as such AOIC of the computer program. It is only through the choice sequence, and combination of those that the author may express his creativity.
EU Test: Painer
The author of a portrait photograph could stamp the work created with his “personal touch”.
An AOIC is there if it reflects the author’s personality, i.e. where able to express his creative abilities in production of the work by making free and creative choices (FAPL).
This can be done as regards a portrait photograph e.g. pose, lighting, angle of view, atmosphere, developing techniques or computer software.
EU Test: Temple Island (PC)
While the language of intellectual creation differed from the traditional CR case, there was little difference in approach.
What is decisive are the arrangements selected by the photographer. Further, that the composition of the image can be the product of the skill and labour (or AOIC) of a photographer and it seems to me that skill and labour/AOIC directed to that end can give rise to CR, as in this case.
EU Test: Football Dataco
its author expresses his creative ability in an original manner by making free and creative choices and thus stamps his “personal touch”.
UK Test
Skill and Labour
First, the work must originate from the author, in the sense that it must not be slavishly copied from another work.
Second, whether or not the author had drawn on other material, what was required was the expenditure of more than negligible or trivial effort or relevant skill in the creation of the work.
UK Test: Not universal
Interlego v Tyco 1989 (PC)- The significant technical changes are not indicated by any substantial alteration to the drawing as an artistic work
Skill, labour or judgement merely in the process of copying cannot confer originality (e.g. a good copy of a painting). A well-executed tracing is the result of much labour and skill but remains a tracing.
UK Test: Literary Works
Walter v Lane 1900- A reporter’s art is much more than mere transcribing or writing from dictation, few can keep up with a rapid speaker and fewer with complete accuracy
(Liu: Is this still good law given EU requirement for AOIC?)
Ladbroke v William Hill 1964-
> Lord Reid: if it is permissible to take into account all the skill, judgement and labour expended in producing the coupon, there can be no doubt that it is ‘original’. The respondents did not devise the coupon in a two-step process.
> Lord Pearce: In each case it is a question of degree whether the labour or skill or ingenuity or expense involved in the compilation is sufficient to warrant a claim to originality. I feel little doubt that the coupon is entitled to CR
UK Test: Musical Works
Sawkins 2005- Mummery LJ: A work need only be original in the limited sense that the author originated it by his efforts rather than slavishly copying it (Walter v Lane remains good law and its applied to this case)
Jacob LJ: Reproductions requiring great talent and technical skill may qualify as protectable works of authorship, even if they are copies of pre-existing works.
UK Test: Artistic Works
Antiquesportfolio.com 2001- Photographs of furniture were original because of the skill and labour that went into arranging and lighting the scene.
(No UK cases where CR was denied for photograph on the basis of lacking originality. Snapshots where no thought or arrangement? Right place, right time is sufficient?)
UK law has never distinguished between a photograph which is the result of a purely mechanical process and that of much time and skill.
