The Concept of Originality in Copyright

Originality is an important concept in copyright since the protection of the work will arise when it satisfies this requirement, and the question of originality as said by Abrams “...the core of copyrightability”[1]. In addition, the function of originality plays a fundament role in determining whether a work has been infringed, and therefore it limits the scope of infringement.
“The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected”[2]
This requirement was stated in the Copyright, Design and Patent Act in section 1 (1), where it provides that:
“Copy right is a property right which subsists…in the following descriptions of work:
(a). Original literary, dramatic, musical or artistic works.” [3]
From this, it can be said that originality in the UK applies to authorial works. Nonetheless, the 1988 Act declares that copyright does not subsist in entrepreneurial works such as sound recordings, films, broadcasting and published editions if it is copied from previous works.[4]
The issue arises is the meaning of originality in copyright. In the absence of a precise definition in the statutory,[5] the courts, therefore, tried to explain originality. For instance, in the case of University of London, Justice Peterson said that:
“... the Act does not require that the expression must be in an original or novel form, but that must not be copied from another work - should originate from the author.”[6]

As stated above, originality does not require the work to be novel as in patent, rather it must originate from the author who exercises “ the skill, labour and judgment” to produce the work.[7] Therefore, the idea expressed in the work need not to be new but the way of expression must be so. This can be referred to as the idea-expression dichotomy, which means that copyright does not protect the idea but the expression.
“The copyright laws do not require that a work should be unprecedented, that is, new in comparison with already existing works…A copyright…is good provided a sufficient amount of work was originated by the author independently, even if some other person had already produced an identical piece by sheer coincidence.”[8]
This traditional test of originality was first introduced in the UK copyright law in the early twentieth century, and it was recognised by cases such as University London Press[9]. This lead to the fact that the UK has accepted a low standard of originality, that is, the work must originate from the author and not to be copied.[10] Originality, however, is a matter of degree that led commentators to state that
“ .. the effort, skill and judgment which is needed to confer originality on a work cannot be defined in precise term.”[11]
From the statement above, the amount of skill, labour or judgment depends upon the facts of each case. This view was supported by Lord Atkinson in the case of MacMillan.
“It must depend largely on the special facts of that case, and must in each case be very much a question of degree” [12]
Whilst this requirement may differ in accordance with the type of work, the common basic concept is that the work must not be copied.[13] Hence, originality should be explained in conjunction with the types of works that are copyrightability, which is this essay going to discuss.
Before going further, however, some commentators distinguish between new works (first generation) and derivative works.[14] The question arises here is whether new works can be created, and therefore can a work be totally original. It is argued that a work can never be totally original, and the existing creations are reproduction of preexisting works or from objects that surround us.[15] Despite this debate, as said by Peterson J that a work is original if it is not copied and when it originates from the creator, this is the key point in determining whether a new work is original. The problem here is when the resulting work is insignificant. In the case of Merchandising Corp of America, it was said by Lord Lawton that
“Two straight lines drawn with grease-paint …, in my judgment, by itself could not possibly attract copyright”[16]

This was due to the insignificant of the resulted work.
By contrast, it was held in the case of British Northrop, that the drawings of the plaintiff’s spare parts were not too simple to be capable of being an original artistic work.[17]
It seems that a new work is original when it originates from the author. The exception to this rule is when the outcome of the work is insignificant and the skill and labour are unsubstantial.[18]
Looking at derivative works. In principle, a derivative work to be original it should satisfy the requirements set out in the case law[19]. These requirements are:
1. The skill and labour must be of the right kind; otherwise the work would not be considered as original. In the case of Interlego, it was stated that no matter how much skill and labour was employed if they are not of the specific type of labour and skill.[20] Lord Oliver declared that
“But copying, per se, however much skill or labour may be devoted to the process, cannot make an original work”[21]
Thus, copying a pre-existing work would not be subject to copyright and the amount of skill and labour were employed is irrelevant.
“A well executed tracing is the result of much labour and skill but remains what it is, a tracing”[22]

2. A material alteration in the work is required, whether it was minor or substantial. What should be kept in mind, however, is that the changes should be material that distinguishes and differentiates the work from the pre-existing one. This is a matter of degree and as said by Lord Oliver
“.. regard to the quality rather than the quantity..”[23]
In addition, there are some exceptions to this requirement where, for instance, the same author or the plaintiff owns the works.
3. A connection exist between the skill and labour and the work in question, that means “ the skill and labour must produce a change which is relevant to the category of the work in question”.[24]
This was a question put before the Privy Council in the previous case where it said
“.. the question was whether the skill and labour was directed to the production of an original artistic work rather than the insertion of manufacturing instructions into an existing artistic work.”[25]
It was stated that there was not substantial visual changes, and thus “It is not sufficient to confer originality upon them that labour and skill were employed in the process of copying them or in the addition to them of fresh written manufacturing instructions”[26]
In respect to derivative works, it should be borne in mind that a work can be original and infringe copyright in another pre-existing work. In the case of ZYX Music, it was held
“The plaintiff's work, even if it infringed copyright in another work, nevertheless enjoyed copyright,”[27]

Originality in literary works
Literary works were defined in s 3 (1) as:
“literary work” means any work, other than a dramatic or musical work, which is written, spoken or sung and accordingly includes –
a. A table or compilation other than database,
b. A computer program,
c. Preparatory design material for a computer program, and
d. A database.”[28]

It seems that this definition is wide to encompass not only written works but also spoken or sung works.[29]Thus speeches, translations and adaptation works might attract copyright irrespective of their quality or style.[30]
“"Literary work" cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high.” Peterson J. [31]
Whilst the quality or the style of the work may not be a question here, the work should satisfy the threshold of originality (the De-minims threshold). Consequently, if the work fails to satisfy this standard of originality then it will not attract copyright. A good illustration of this is the decision of Lord Davey in the case of Hollinrake, where he stated that:
“Now, a literary work is intended to afford either information and instruction, or pleasure, in the form of literary enjoyment.”[32]
Therefore, in the case of Exxon Corp, it was said by Lord Oliver that the word Exxon “... conveys no information; it provides no instruction; it gives no pleasure that I can conceive.”[33]
By Contrast, it was held in the case of the Express Newspapers,that the grids and sequences of letters were literary works due to the great deal of skill and labour that, and this work afforded information and gives pleasure to the public as it was the purpose of producing such letters.[34]
Furthermore, the standard of originality in the UK is lower than the standard implemented in Europe, which is the author’s own intellectual creation.

A. Tables and Compilations other than Database:

Original tables and compilations attract copyright, and they are subject to normal test of originality that is they have to originate from the author who has exercised the skill, labour and judgment in producing such a work. In the case of Ladbroke, it was held that coupons arranged in a certain general forms were original work, and thus protected by copyright. This judgment was based upon the fact that the skill and labour involved was not only writing the coupons but also the intellectual creation in arranging the bets.[35] This arise the question of the type of labour needed to confer originality.
Bently stated that the courts in the UK have taken two methods, “the quantity of the labour and the quality of the labour”. [36] In the previous case, it seems that Lord Devlin accepted the quantity approach (also known as “sweat of the brow"), where he said
“The requirement of originality means that the product must originate from the author in the sense that it is the result of a substantial degree of skill, industry or experience employed by him.”[37]

In contrast, the “quality of labour” emphasize on how the information in the work is “selected” or “arranged”. Apparently, Lord Reid took this approach in the previous case. Where in the case of Independent Television Publications, programme schedules were considered as literary work that attract copyright on the ground that “they required a great degree of skill and labour in their preparation.”[38]
The Sweat of the brow doctrine (the quantity approach) has been criticized on the bases that conferring originality on a work merely because of the labour and skill exercised might lead to abolish the author creativity in the work. Furthermore, this approach has been “put to rest” in several jurisdictions such as in the United State after the decision of the Supreme Court in the case of Feist Publications.[39]

B. Computer programs:
As we have mentioned above that originality simply means not copied and there is no requirement for novelty. In addition, there is no necessity for a work to be created by a human. Copyright can subsist in a work where there is no human creator.
Computer programs are not defined in the statutory due to the rabid changes in this field. This might lead to the fact that the standard of originality in the computer programs is the author’s own intellectual creation. This view is supported by Bently, where he stated that originality in computer programs in the United Kingdom “should now be read in the light of the EU standard of an author’s own intellectual creation.”[40]

C. Database:
The EU Directive defines a database as “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.”[41] This definition was introduced into the 1988 Act. In essence, for a database to be protected by copyright it should, normally, not only fall within that definition, but also it has to satisfy the standard of originality requested in the 1988 Act, which is:
“... a database is original if, and if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation.” [42]
The standard of originality in database, which is author’s own intellectual creation, demonstrates a higher standard of originality than it is presented in the UK. It can be said, however, that when a work fail to comply with the definition of database and its standard of originality, it might be protected as a table or compilation or by the so-called the ‘Sui Generis’ Right.

Originality in Dramatic works

Whilst dramatic work is distinct from literary work,[43] there might be a similarity in standard of originality, that is, it must originate from the author and to be capable of being performed in front of the audience. The important issue here is allocating the author of a dramatic work, but it is outside the scope of this essay.

Originality in Musical works

As defined in the 1988 Act, musical work is
“... a work consisting of music, exclusive of any words or action intended to be sung, spoken or preformed with the music.”[44]
The originality requirement where discussed in the case of Sawkins. This case demonstrated that the common standard of originality, which is the work must originate from the author who spent the time, skill and effort to produce the work, can be applied in the musical works. However, the issue arises is the degree of the skill and labour. Actually, what matters is the de-minims threshold. It should be noted that the essential issue in the previous case was whether the performing edition can be “incapable of being original work” particularly when the edition is made in a close approximate with a previous work. It was said that
“… the effort, skill and time which the judge found the claimant spent in making the three performing editions were sufficient to satisfy the requirement that they should be "original" works in the copyright sense. This is so even though (a) the claimant worked on the scores of existing musical works composed by another person”.[45]

Originality in Artistic works
Artistic works mean:
“(a) a graphic work, photograph[46], sculpture or collage, irrespective of artistic quality,
(b) a work of architecture being a building or a model for a building, or
(c) a work of artistic craftsmanship.”[47]

In general, original artistic works attract copyright protection if it is not copied and a minimal level of skill, labour and judgment has been exercised in the produced works. However, in relation to the first category artistic quality is not needed, and the only exception to this is when the outcome of the work is insignificant. This was the issue in the case of Merchandising Corp which was explained above. It should be noted, however, when the artistic work is a derivative work it must met the requirements set out in the case law, which was discussed above. While in relation to the second and third category, a level of artistic quality is required. Therefore, any craftsmanship work such as jewellery will not be original artistic work only if it is artistic craftsmanship. What is essential is the meaning of artistic quality. This question rose in the case of Hensher,[48] and the lordships had different views concerning artistic quality. For example, Lord Reid focuses on the public, that is, they should see the workr as an artistic and admires it, whereas Lord Kilbrandon focuses on the intention of the author to produce an artistic work and it should be left to the court to determine the existing of such an intention. Furthermore, another test was introduced by Lombe J in the case of Vermaat where he emphasized on the evidence of creativity to confer artistic quality on the work.[49] However, this issue has not been settled yet.

Conclusion
As we have seen, originality is an important aspect in copyright since the protection is conferred to original works whether it was first generated or a derivative work. Surprisingly, a derivative work can be original and infringing a pre-existing works in the same time. However, the threshold of originality in the UK is lower than it is in the civil law jurisdictions, wherein the common concept of originality in the UK is that the work must originate from the author and not copied, the level of originality in the civil law system is the author’s own intellectual creation. Moreover, as stated above, although originality is not required in entrepreneurial works, the 1988 Act provides that these works should not be copied from a previous works. This low standard of originality in the entrepreneurial works, as suggested by some commentators, relates to an economic reason. It is said that the right in authorial works is “more expensive that with entrepreneurial works”.[50]

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[1] Howard Abrams, “Originality and Creativity in Copyright Law” Law & Contemp Probs”,Vol.55,No.2, (Spring,1992), p 3.
[2] Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. [1964] 1 W.L.R.
[3] Copyright, Design and Patent Act 1988, S 1 (a).
[4] CDPA 1988 ss. 5A (2), 5B (4), 6 (6) and 8 (2).
[5] The 1988 CDPA did not define originality except in reference to databases. See S 3A(2).
[6] University of London PressLtd v University Tutorial PressLtd[1916]2Ch.601.
[7] This test of originality is considered as a “De- minims threshold” of originality which differs from the European concept of originality which is “author’s intellectual creation”. See Bently and Sherman, “intellectual property” (2nd edn, Oxford University Press, 2001), p.92.
[8] Laddie, H. et al,“The Modern Law of Copyrights”(2nd edn., Butterworths, 1995), p.48
[9] It is argued that test of originality which was set out in the case of University London Press is not compatible with the Berne Convention. It was pointed out by Gervais that “Most dictionaries give three definitions for the word "original"…and, of course, to designate a thing about which one would say that it has been produced by a given author …. It is this last definition that Justice Petersen used. This is not the meaning that should be applied in copyright. All the discussions and negotiations concerning the Berne Con…show that originality is closely tied to the act of intellectual creation.” Dee Daniel J. Gervais, ”THE COMPATIBILITY OF THE SKILL AND LABOUR ORIGINALITY STANDARD WITH THE BERNE CONVENTION AND THE TRIPS AGREEMENT” E.I.P.R.2004, 26(2), pp. 75-80.
[10] Ibid, p 92.
[11] Ibid, p 92.
[12] MacMillan v. Cooper (1923) 93 LJPC 113.
[13]Dr Goldberg, “Copyright And Allied Rights (LS5551)” (University of Aberdeen, Session 2006-2007)
[14] Ibid, p. 92
[15] Litman, J “the public Domain” http://www.law.duke.edu/pd/papers/litman_background.pdf, accessed 18th April, 2007.
[16] Merchandising Corp of America v. Harpbond [1983] F.S.R. 32.
[17] British Northrop Ltd v Texteam Blackburn Ltd [1973] F.S.R. 241.
[18] Ibid, p 93.
[19] See Bently, ibid pp 94-98
[20] Ibid, p 94.
[21] Interlego v. Tyco Industries Inc [1988]3W.L.R.678.
[22] Ibid.
[23] Interlego v. Tyco (supra).
[24] See Bently, p 98.
[25] Ibid.
[26] Ibid.
[27] ZYX Music v. Chris King [1995] F.S.R. 566.
[28] CDPA 1988.
[29] However, it should be noted that it will only be protected if it is recorded in written or otherwise. S 3(2), CDPA 1988.
[30] Walter v. Steinkopff [1892] 3 Ch 489, Byrne v. Statist [1941] 1 KB 622 and Ravenscroft v. Herbert [1980] RPC 193.
[31] University of London Press v. University Tutorial Press (supra).
[32] Hollinrake v. Truswell [1894] 3 Ch.420.
[33] Exxon Corp v. Exxon Insurance Consultants, [1982] R.P.C.69CA.
[34] Express Newspapers v. Liverpool Daily Post [1985] FSR CA.
[35] W.R. Cornish, “Materials on Intellectual Property” (ESC Publishing Limited 1990) pp. 214-216.
[36] Ibid, p. 99.
[37] Ladbroke v. William Hill (supra).
[38] Independent Television Publications v. Time Out [1984]F.S.R.64.
[39] Feist Publications v. Rural Telephone Service Company, 1990 WL (U.S.). See also http://www.gesmer.com/publications/article.php?ID=115.
[40] Ibid, p. 103.
[41] Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.
[42] CDPA 1988.
[43]The definition of dramatic work can be found in the case law such as Norowzian v. Arks Ltd [2000] F.S.R. 363 (CA), where it was held that “The expression "dramatic work" should be given its ordinary and natural meaning, which was a work of action, with or without words or music, which was capable of being performed before an audience.”
[44] CDPA 1988, S 3 (1).
[45] Sawkins v Hyperion Records Ltd [2005]1W.L.R. 3281.
[46] It is argued that test of originality in photographs should be treated as sound recording and films where there is no requirement of originality due to the fact that there is no skill and labour in pressing a button in camera for example. Richard Arnold, “COPYRIGHT IN PHOTOGRAPHS: A CASE FOR REFORM” E.I.P.R.2005, 27(9), 303-305.
[47] CDPA 1988, S4(1)
[48] Hensher v. Restawile [1975] RPC115. See also Bently, ibid pp. 74-76.
[49] Vermaat v Boncrest Ltd (No.1) [2001] F.S.R. 5.
[50] Bently, ibid p.106.