19 September 2008

Copyright: What is meant by "Originality"?

Originality is not defined by the Copyright Designs and Patents Act 1988 ("CDPA"), except by reference to databases under s.3A. Generally, originality means the application of independent skill and labour. The threshold is not high and need not be creative, innovative or novel but it must be more than slavish copying as in xerography.

Meaning of Independent Skill and Labour

In Sawkins v Hyperion Records Ltd. [2005] EWCA Civ 565 (19 May 2005) a musicologist has set out to restore as faithfully as possible the work of a 17th and early 18th century composer. One of the objections to his claim was that he had not actually created any new music. The Court of Appeal considered that to be irrelevant. The House of Lords had previously held in Walter v. Lane [1900] AC 539 that copyright subsisted in a newspaper reporter's notes even though he had intended to capture as closely as possible the words of a politician's speech. There had been some debate as to whether that case was still good law as the statute under which it has been decided did not require originality. The Court of Appeal held that the case would have been decided on the same facts in exactly the same way.

Right Kind of Skill and Labour

However, the skill and labour must relate to the work. IFylde Microsystems Limited v. Key Radio Systems Limited [1998] EWHC Patents 340 quite considerable work some of it highly skilled was ignored because it was not of the "right kind". While that case was concerned primarily with joint copyright rather than originality, it would seem that that the right kind of skill and labour has to be such as would add to the quality of the work.

Analogous Provisions
Originality as such is not required for copyright to subsist in a film or sound recording but s.5A (2) provides that copyright does not subsist in a sound recording which is, or to the extent that it is, a copy taken from a previous sound recording. Similarly, s.5B (4) of the Act provides that copyright does not subsist in a film if, or to the extent that it is, a copy taken from a previous film. In the same vein s.6 (6) provides that copyright does not subsist in a broadcast that infringes, or to the extent that it infringes, the copyright in another broadcast.  Finally, s.8 (2) provides that copyright does not subsist in the typographical arrangement of a published edition if, or to the extent that, it reproduces the typographical arrangement of a previous edition.

Databases
In order to give effect to art. 3 (1) of the 
Database Directive, which requires copyright protection for databases that by reason of the selection or arrangement of their contents constitute their authors' own intellectual creation, reg. 6 of The Copyright and Rights in Databases Regulations 1997 inserts a new s.3A into the Act importing a special definition of originality for databases:

"For the purposes of this Part a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author's own intellectual creation."

This article first appeared on the IP/IT Update website on 28 May 2005.

See also Case Note: Christoffer v Poseidon Film Distributors Ltd. and Case Note Creation Records Ltd. v News Group 

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