Literary Work

In what sense does a literary work need to be “original” protected by copyright in the UK? Is the law of originality in a satisfactory state? How, if at all, might it be improved?

This piece will examine the UK position on the concept of ‘originality’ in the law of copyright, determine whether this law is satisfactory and make suggestions for improvement if necessary.

Part One: ‘Originality’ in the UK

Section 1(1)(a) of the Copyrights, Designs and Patents Act 1988 describes subsistence in copyright as falling on:

“original literary, dramatic, musical or artistic works.”

Section 3(1) describes the literary work as:

” any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes

(a) a table or compilation, and
(b) a computer program…”

One key difficulty of the 1988 Act is that it does not define originality but instead this is left to a rather aged common law. Council Directive 93/98 on the Harmonising of the term of Protection of Copyright in Certain and Certain Related Rights is of no help in this matter as full sovereignty is given to the Member States on issues of copyright eligibility .

The state of the English common law is therefore as follows:

A. Originality is not indicative of quality

The ordinary and everyday meaning of ‘original’ is not an accurate description of the term as it applies to the law of copyright but instead the courts have interpreted it as a term that describes the relationship of the created work with the author and whether the work ‘originated’ from the author. As stated by Peterson J in University of London Press v University Tutorial Press:

“…The word ‘original’ does not in this connection mean that work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and in the case of ‘literary work’, with the expression of thought in print or writing… ”

This therefore means that the actual quality of the work as something inventive is not a prerequisite to copyright, which therefore sets it apart from the law of patenting. This distinction was justified by Peterson J as being needed so as to prevent a scenario whereby considerations of creativeness, such as the length of time taken in the creation of the writing and the use of prior styles or themes would be integral to the granting of copyright protection. He goes on to state that:

“…If time expended is to be the test, the rapidity of an author like Lord Byron in producing a short poem might be an impediment in the way of acquiring copyright, and, the completer his mastery of his subject, the smaller would be the prospect of the author’s success in maintaining his claim to copyright… ”

Originality is therefore strictly concerned with the origin of the work with the author,
which therefore means that it allows for the protection of written and printed matter such as examination papers and football fixture lists as well as works of a more considerable creativity. In Ladbroke (Football) Ltd v William Hill (Football) Ltd Lord Pierce reinforced this rhetoric by stating that ‘originality’ requires that:

“…the work should not be copied but should originate from the author… ”
The definition of originality is equally applicable to dramatic, musical, artistic and software works as all require to be ‘original’ in order to have copyright subsist in them.
For example, a computer program is included in the definition of ‘literary work’ under the 1988 Act and as for all forms of copyright, it is necessary that the program be recorded in either a written form or electronic encoding. As with literary works, consideration of the extent of labour, skill and judgement or ‘proviso de-minimi’, range from the actual writing of the program from a ‘source-to-object code’ to the compilation of several programs . This means that the vast majority of programs will be afforded copyright protection under UK law. In the case of Cantor Fitzgerald v Tradition, Pumfrey J immediately criticised the Australian High Court Decision of AutoDesk v Dyason as they gave substantial consideration to a relatively small part of a program and decided that there had been a breach. This meant that the entire program could not be utilised without the payment of royalties but that decisions like this would cause a rift in commercial activity as regards software.

Australia is however not the only country that disagrees with the UK’s very liberal approach to the provision of monopoly copyrights. Article 3(1) of the 1991 Software Directive requires that the program is “the author’s own intellectual creation.” Controversy lies in the fact that some Commission Officials regard the UK’s originality test as insufficient to meet the needs of this requirement under the directive.

Further to this, under directive 96/9/EC on the Legal Protection of Databases , the same test is applicable. Article 3(1) states that:

“In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection.”

The notion that no other criterion may be applied suggests that the EU position is for the entire database to be 100 percent derived from the intellectual creation of the author(s). This is a far stricter test than the current UK provision. The consequence of UK law carries the result that an item of little artistic merit may even have originated from another person!

B. The primary consequence of the low standard: Work may be derived from other work.

The loose interpretation of ‘originality’ as being derivable from the author means that secondary work that is derived from an existing source is also eligible for copyright protection . Therefore, in the case of Walter v Lane , it was held that the shorthand writings of a verbatim speech was authored by the writer of the shorthand and this therefore meant that a work, once translated, became the intellectual property of the translator as opposed to the original author . The primary concern of this older case law is that the secondary work did actually merit some ‘skill and judgement’ in the creation of the translation and it was for this reason that the work was deemed as original as opposed to being an outright copy . This case did however take place prior to the statutory requirement of originality and its current application has been questioned. Distinction has however been made between the levels of skill and judgement that go into a recording and the process of editing has been shown to demonstrate the necessary skill and judgement for originality in case law.

This notion also extends to dramatic and artistic works. In the case of Creation Records v News Group Newspapers a photographer secretly took a picture during an Oasis shoot of the scene that resembled their chosen album cover photograph and published and sold it as a poster in the Sun newspaper. Here, Lloyd J held that the subject matter of the scene itself was not subject to copyright and was merely an assembly of ‘objets trouvés.’ This led him to the conclusion that the work was therefore not a copy of a scene. Further to this, he concluded that the photograph was also not a copy of the official photograph, but that it was merely a shot of the same scene:

“…If the subject matter is not itself a copyright, in principle two different photographers can take separate photographs of the same subject without either copying the other…two works created from a common source do not by reason of that fact involve copying one of the other, however similar they are… ”

While this case is logical in its context, in the later decision of Antiquesportfolio.com plc v Rodney Fitch & Co Ltd Neuberger J examined the concept of photographic representations of three dimensional objects by stating that a distinction is to be drawn between the intention to make a ‘faithful copy’ and use of the photographer’s ‘own flair’ via use of angle, type of film and lighting. Therefore, had the judge in Creation Records decided that the display was not merely an assembly of ‘objets trouvés’ copyright could nevertheless have subsided in the photograph as a result of the ‘flare’ of the photographer.

Equally helpful is the fact that this case also drew attention to a paradox that exists in our law. In the Antiquesprotfolio case, it was held that photographic representations of antiques were held to lack the originality required to be protected under copyright. This therefore means that a direct copy of an artistic work cannot be protected under copyright but, paradoxically, there could have been a great deal of labour, skill and judgement. This represents blatant proof that the concept of labour, skill and judgement is hopelessly flawed and should perhaps be removed.

Part Two: Is the UK law satisfactory and what improvements should be made?

A. Satisfactory?

1. The issue of a the low standard

In the words of Mr Justice Laddie :

“…We should not be handing out monopolies like confetti while muttering, ‘this won’t hurt… ”

However this seems to be the exact practice of the UK legislature and the courts. The above analysis has revealed that the low standard is creating awards for the relatively mundane, such as the deviser of a football pool form in the Ladbroke case. There are however two advantages to our system.

Firstly, there is very little need to instil a subjective element in the determination of what may be protected under copyright law as only substantial copies of another item are caught under UK law. Secondly, there is the further commercial advantage of gaining rights as a result of almost all creative ventures involving labour, skill and judgement, regardless of the level of imagination that has gone into the work.

2. Derivative Works

While the above analysis shows that the definition of originality does accept derivative works, this concept is not a carte blanche opportunity for individuals to seek out and steal the works of others. The case of Antiquesportfolio.com clearly demonstrated that any derivative would have to elicit an element of artistic flair that would render the new work distinct from that of its predecessor. The case law also reveals that this concept is also very strictly scrutinised, whereby such items as 3D representations of 2D animation and direct photographs of objects would not satisfy Neuberger’s vision of “flare” that would need to be present.

3. One problem

One major issue is the fact that a moral dilemma exists in the provision of monopoly rights for items that are relatively mundane and did not require too much labour, skill and judgement.

B. Improvements? The categories of artistic works – a stricter definition for originality?

Artistic works are categorised into three headings under s 4 of the 1988 Act, which has the result that it is only one category out of three under the 1988 Act that is given as loose a definition of originality as with literary works. This means that only works that entail very minor variations will not be protected .

1. Irrespective of artistic quality

This is the category of a graphic work, photograph, sculpture or collage, irrespective of artistic quality which is demonstrated in the case of Wham-O v Lincoln. Here it was held that a plastic Frisbee was an engraving due to the rings on its exterior, which were modelled by a sculpture. Equally, in Solar Thomson v Barton it was held that three concentric rings were of sufficient artistic skill because the act of drawing them had been done to precise measures as part of technical plans.

This category represents the typical state of all literary, dramatic and musical works, however an ideal comparator can be made with the other two, categories of artistic work and a solution to the problem does present itself.

The other two categories of artistic works, namely architecture and works of artistic craftsmanship are strict definitions. The result is that, for a work to fall under either category, it must demonstrate specific traits. In addition to originality, classification acts as a second tier to the requirement for copyright to subsist in the work.

2. Architecture

In architecture, there requires to be an element of artistic quality whereby ‘something apart from the common stock of ideas’ is necessary.

3. Artistic Craftsmanship

Under the artistic craftsmanship category the complex criterion with which objects may fit into this category is dealt with in the case of Hensher v Restawile. Here the subject-matter was the prototype for a suite of furniture that involved virtually no ‘craftsmanship,’ but ‘mere assemblage’. Unfortunately the ratio decidendi of each judge differed on the point of defining ‘originality’ for the purpose of falling under this category. Lord Simon of Glaisdale stated that there should be no distinction between the aesthetic and the functional utility and that copyright cannot be dependent on whether an item is hand-made or machine manufactured. Lord Reid disagreed with this opinion and attached a great deal of importance on the attitudes of the public . Meanwhile, Lord Kilbrandon turned his thoughts to the subjective intention to produce a work of art on the part of the craftsman but Lord Morris and Viscount Dilhorne both rejected all of these notions and instead asserted a system of judgement of the subject-matter itself.

The crucial point that is being made in the context of these specialised categories is that they are reserved, in artistic terms for works that require a higher standard of creativity and arguably, this higher standard ought to subsist in all dramatic, literary and musical works. A possible solution is to therefore expand upon the definitions of literary, musical and dramatic works so as to narrow and add sophistication to the scope of subject matter that may be eligible. This is particularly essential for the literary work as this genre is particularly at risk from creating monopoly rights over mundane subject matter. Further to this, one lesson that is to be learned from the case of Hensher v Restawile is that clear criterion as to the method for attributing classification of subject matter for the purposes of copyright has to be determined.

Conclusion

The current UK provisions on the determination of originality for a literary work is extremely simple and, as a consequence there is little wonder why it is universally applied to works of art, drama, music and computer programming. One issue that does however arise is that the ease of this system does not justify the presence of an ability for monopoly rights to be earned for very little work. The solution is however not to remove the definition of original as this quite rightly rests with the origin of the author as the source of creation. The key to a heightened standard is therefore an extension of the technique applied to artistic works under s 4 of the 1988 Act that will mean further provision as to definitions of what constitutes a literary work in particular.

Bibliography

Legislation

Directive 96/9/EC of the European Parliament and the Council of 11 March 1996 on the Legal Protection of Databases (Database Directive)
Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights
Copyright, Designs and Patents Act 1988

Case Law

Walter v Lane (1900) AC 539 (HL)
University of London Press v University Tutorial Press (1916) 2 Ch 601 (ch)
Kirk v Fleming (1928-1935) MacCC 44
Francis Day & Hunter v 20th Century Fox (1940) AC 112 (PC)
Exxon v Exxon Insurance (1982) RPC 69 (CA)
Solar Thomson v Barton (1977) RPC 357 (CA)
Wham-O Manufacturing v Lincoln (1985) RPC 127 (NZ CA)
Hi-Tech Autoparts v Towergate Two Ltd (2002) FSR 254 (Pts C Ct);(2002) FSR 270 (Pts C Ct)
Hensher v Restawile (1976) AC 64 (HL)
Guild v Eskander (2001) FSR 645 (Ch)
Roberton v Lewis (1976) RPC 169 (Ch)
Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444
Ladbroke (Football) Ltd v William Hill (Football) Ltd (64) WLR 273 (HL) Antiquesportfoliocom Plc v Rodney Fitch & Co Ltd (2001) FSR 345 (Ch)
Feist Publications Inc v Rural Telephone Service Co Inc 111 SCt 1282 (91) (US S Ct)
Cantor Fitzgerald v Tradition (2000) RPC 95 (Ch)
Whelan v Jalow [1987] FSR 1 (C Apps, 3d Circ)
[1992] RPC 575
Goldstein (1983) 30 J Cop Soc, 209
Byrne v Statist Co [1914] 1 KB 622
Eisenman v Qimron [2001] ECDR 73
Express Newspapers v News (UK) [1990] FSR 359
King Features Syndicate v Kleeman [1941] AV 417
Interlego v Tyco [1988] RPC 343 JC
Blake v Warren [1928-1935] Mac CC 268

Text Book Publications

McClean, D & Schubert, K (eds), “Dear Images: Art, Copyright and Culture” (2002)
Laddie, Prescott & Vittoria, The Modern Law of Copyright and Designs (3rd Ed, 2000)

Articles/Chapters in Books

Spence, M, “Justifying Copyright” in McClean, D & Schubert, K, above at p 388
Burrell, R., (2002) “The Future of the Copyright Exceptions”, in D McClean and K Schubert (eds) above, at pp 455–471.
Laddie, H, “Copyright: Over-strength, Over-regulated, Over-rated” (1996) EIPR 253
Hettinger, E, “Justifying Intellectual Property” (1989) 18 Philosophy and Publica Affairs 31
Goldblatt, M “Copyright Protection for Computer Programs in Australia: The Law Since Autodesk” [1990] 5 EIPR 170
See also Angel, J and Quinn T, “Database Law” [1998] 14 CLSR at p 34