Originality and creativity Flashcards
The principle of originality is a key requirement in the jurisdiction system of civil law or common law? Give examples.
In common law. Examples: US Copyright Act, Sec. 102 “Copyright protection subsists […] in original works of authorship fixed in any tangible medium of expression …”;
UK Copyright, Designs and Patents Act 1988, Sec. 1 “Copyright is a property right which subsists […] in original literary, dramatic, musical or artistic works,…”
The principle has been expressly acknowledged in EU copyright law since 2009
Explain the case Bleistein v. Donaldson Circus Poster.
It happened in 1903, it is an important case to come to terms with when addressing the concept of originality and understanding the Constitutional
limits on copyright subject matter more generally. The case concerned the unauthorized
reproduction of a circus poster. The defendent used the argument that it was a “poor art”, but the Justice rejected this excuse, and started the principle of non-discrination, mainly because the court cannot decide what is “good or bad” art. It showed the irrelevance of the artistic value and literary merit.
Explain the case Alfred Bell & Co. v. Catalda Fine Arts, of 1951.
Catalda Fine Arts reproduced a mezzotint based on an original work of art in the public domain. The court said that the work was original because it embodied the individual concept, judgemtn and execution of the engraver. The court of appeal said that the mezzotint was a distinguishable variation of the public domain original, hence, there was evidence that it was not intended to copy or imitate the public domain painting.
What did Justice Hand said about the case Sheldon v. Metro-Goldwyn Pictures, of 1936?
Copy of a copy:
… if by some magic a man who had never known it were to compose anew Keats’s Ode on a Grecian Urn, he would be an ‘author,’ and, if he copyrighted it, others might not copy that poem, though they might of course copy Keats’s.
Explain the case Feist v. Rural Telephone Company and Sheldon.
Feist v Rural is a case of 1991, about information of white and yellow lists of phone and addresses in Kansas. Background: Rural refused to sell their clients info to Feist Publications for competitive reasons. However, Feist copied part of Rural’s info anyways, about 1300 listing, in which 4 were fake (that’s why Rural knew Feist was copying the info). There was no trace of creativity in Rural’s selection!!!! Rural’s selection of listings could not be more obvious: It publishes the most basic information—name, town, and telephone number—about each person who applies to it for telephone service. This is “selection” of a sort, but it lacks the modicum of creativity necessary to transform mere selection into copyrightable expression. Rural expended sufficient effort to make the white pages directory useful, but insufficient creativity to make it original.
There is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course. It is not only unoriginal, it is practically inevitable.
What’s the sweat of the brow doctrine?
It is a theory that came up from the courts, where the copyright is a kind of reward for the hard work of compiling the facts. It has some flaws, like the extention of copyright also to the facts themselves, and not only the selection and arrangements of them. The 1976 revisions to the Copyright Act leave no doubt that originality,
not “sweat of the brow,” is the touchstone of copyright protection in directories and
other fact-based works, and Congress emphasized
repeatedly that the purpose of the revisions was to clarify, not change, existing law.
What does the EU legislation say about originality and creativity? Explains the Infopaq case.
“Creativity” is not expressly defined in the EU legislation on copyright and its meaning may
vary depending on the nature of the work. Computer programs, databases and photographs are protected by copyright only if they are original in the sense that they are their author’s own intellectual creation.
The infopaq case started in 2009 and was decided only 8 years after. In the infopaq case, the CJEU’s task, among other things, was to interpret the exclusive rights concerning reproduction of copyrighted “work under Article 2 of the InfoSoc Directive, and the scope of the mandatory exception for individual temporary acts of reproduction under Article 5(1)”. Notably, Article 2 does not mention infringement of substantial part. Also, reproduction or reproduction in part is not defined.
The court found that the parts of a work are not to be isolated from the whole and that they are protected by copyright since they share in the originality of the work’s entirety.[50] It added that the various parts of work thus enjoy protection under Article 2(a) of the Directive 2001/29,[51] “provided they contain elements which are the expression of the intellectual creation of the author of the work”.[52] It then concluded that considering that the copied part could manifest the author’s intellectual creation, copying it could amount to infringement.
