Concept of Originality under Copyright Law

Submitted to:
Ms. Nilima Panda
Assistant Faculty
Faculty of Law

Submitted by:
Permanika Chuckal
VIIth Semester
201275

Damodaram Sanjivayya National Law University

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ACKNOWLEDGMENT
I would like to express my special appreciation and thanks to my advisor
Ms. Nilima Panda , who have been a tremendous mentor for me. I would like to
thank you for encouraging my research, advice for the research has been priceless.
I would extend my thanks to the University Authorities, for providing me with is
opportunity to submit my project. I am indebted to all those who have helped me
in developing this project for their suggestion and guidance.
Permanika Chuckal
201275

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Table of Contents
Serial

Topic

Page No.

No.
1.
2.
3.
4
5

Introduction
Preliminary Issues
Determining whether a work is original
Conclusion
Bibliography

5
6
8
23
25

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INTRODUCTION
Perhaps the most well-known requirement that must be satisfied for
copyright protection to arise is that the work be original. It should be noted that
this only applies to literary dramatic, musical, and artistic works. In contrast, there
is no need for entrepreneurial works (sound recordings, films, broadcasts and
cable programmes, and typographical arrangements to be original for them to
qualify for protection. Instead the 1988 Act declares that copyright only subsists to
the extent that such works are not copied from previous works. (We look at this in
the following sect ion.)
In order for a literary, dramatic, musical or artistic work to be protected by
copyright it must be original. The originality requirement, which has been a
general Statutory requirement since 1911,1 sets a threshold that limits the subject
matter protected by Copyright law. It also functions to limit the duration of
protection. It does this by preventing existing works from being the subject of
further copyright protection in the absence of some additional contribution since
this function could be achieved by requiring that the work must not already exist
(as is the case with entrepreneurial works), it seems that the originality
requirement is intended to do something more. What this is, however, is unclear.
It is very difficult if not impossible to state with any precision what
copyright law means when it demands that works be original. 2 This uncertainty
has been exacerbated by the fact that as part of the harmonization of copyright law
in Europe, a new concept-that of the authors own intellectual creation is now
used in the UK to determine the originality of databases and arguably also
computer programs and photographs .
The meaning that is given to originality in copyright law is somewhat different
from the way it is construed in other contexts. For the purposes of copyright law,
1 Though the requirement was introduced for paintings, drawings, and
photographs by the Fine Art Copyright Au 1862
2 S. Ricketson, The Concept of Originality in Anglo-Australian Copyright Law (1991) 9(2)
Copyright Reporter 1, 9. A plausible argument could be made that the originality requirement
operates differently in relation to artistic work from the way it operates in relation to literary work.
For example, in Interlake v. Tyco Industries [1989] AC217 Lord Oliver said it would be palpably
erroneous to apply the test of originality developed in relation to literary compilations in Ladbroke
v. William Hill (1964) 1 All ER 465, namely that originality was dependent upon the degree of
skill, labour, and judgment involved in preparing the compilation, to art works. Note also the New
Zealand High Court decision holding that the US authority Feiss v. Rural Telephone Services o.
Inc., 499 US 340 (1991) applied to literary works only and was therefore not a persuasive authority
in the context of artistic works: Artifakts Design Group v. NP Rigg 1199311 NZLR 196, 214.

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originality does not mean that the work is inventive, novel or unique. Instead,
when copyright says that a work must be original, this means that the author must
have exercised the requisite labour, skill, or effort in producing the work. While
the novelty requirement in patent law focuses on the relationship between the
invention and the state of the art, the originality examination is more concerned
with the relatIonsh1 between the creator and the work. More spastically in
determining whether a work is original, copyright law focuses on the input-the
labour, skill or effort-that the author contributed to the resulting work. Before
looking in more detail at originality determined, it is necessary to make a number
of preliminary remarks.
PRELIMINARY ISSUES
(i)

The first point to note is that in most cases the requisite labour, skill, and

effort that is needed for a work to be original will be exercised in the way the
work is expressed: in the way the paint is applied the words are chosen and
ordered, ideas executed, or the clay moulded. However, the originality of a work
may arise in the steps preceding the production of the work (in the pre-expressive
stage). That is, the labour that confers originality on a particular work may arise
in the selection of the subject matter or the arrangement of the image that comes
to be embodied in the painting. In other cases, such as with respect to literary
compilations the courts will consider the footwork involved in discovering the
information,3 or the selection or choice of the materials that are later embodied in
the work. This has been particularly important in relation to tables and
compilations.
(ii) It is important to appreciate that the question of whether a work is original
often depends on the particular cultural, social, and political context in which the
judgment is made. In part this is because originality turns on the way the labour
and the resulting work are perceived by the courts. One of the consequences of
this is that what is seen as original may change over time. A good example of this
is provided by photography. When invented in the 1840s, photography was seen
as a non-creative (and non-original) mechanical process whereby images were
3 For example in Kelly v. Morris (1866) 1 Equity Cases 697 the author needed to make time
consuming enquiries and to write down the results with painstaking accuracy.

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produced by exposing chemically sensitive materials to light. In the late

nineteenth century, however, photography came to be seen as an artistic activity.
As a result, photographs came to be seen as creative and thus potentially original
works. Similar changes recently occurred in relation to the artistic works of
Australian Aboriginals.4
(iii)

The next point to note is that the originality threshold has been set at a

very low level. It may come as a surprise for some to learn that the courts have
accepted a original such things as railway timetables and exam papers (which
were drawn Iron) the stock of knowledge common to mathematicians, produced
quickly and included questions similar to ones which had been previously asked
by other examiners)5 One of the consequences of the originality standard being set
at a low level is that there have been relatively few instances where subject matter
has been excluded on the basis that it was non-original. Most of the problems that
have arisen have been in rd1mtinii to tables and compilations, derivative works
(that is, works which incorporate material copied from another source), and
industrial designs. Originality may be important, however, in so far as it plays a
role in ascertaining whether a substitution part of a work has been taken (which is
sometimes used to establish infringement). Originality has also played an
important role in deciding whether new classes of works (photography in the
nineteenth century and more recently Aboriginal art) ought to be protected by
copyright law. There is also a possibility that the growing judicial suspicion about
the over-extension of copyright may mean that originality conies to be used as a
way oh restricting the scope of the subject matter protected by copyright law.
(iv) Non-division of the work. One of the most important and at the same time one
of the most neglected issues in copyright law concerns the nature of the copyright
work: particularly as to the way the boundaries of the work are to he determined.
While we discuss this in more detail later, it is important to note that, while in aim
infringement action it is possible to divide a work into protected and nonprotected parts, when considering whether a work is original it is not possible to
4 See B. Sherman, From the Non-original to the Aboriginal, in Sherman and
Strowell.
5 University of London Press v. University Tutorial Press (1916) 2 Ch 209
Although widely referred to Peterson J s comment that the work should originate
from the author offers little assistance when differentiating original and nonoriginal works.
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divide the work into elements. That is, when considering whether a work is
original1 the work must be examined as whole. This was made clear in Ladlyroke
v. William Hill6 where he question are as to whether football pool coupons (which
listed matches to be played and offered a variety at arranged in sixteen categories
were original compilations on the basis that the expressive form of the coupons
inevitably followed from the commercial decisions as to the bets which should be
offered the appellants argared that the coupons were not original the house of
Lords rejected these claims according to lord Reid it was incorrect to artificially
divide the inquiry up on the one hand into the commercial decisions about which
bets to offer and on the other the form and arrangement of the table the selection
of wagers and their presentation was so interconnected as to be inseparable
consequently it was inappropriate to dissert the labour skill and Judgment.
DETERMINING WHETHER A WORK IS ORIGINAL
As it is explained above when copyright says that a work must be original this
means that the author must have exercised the requisite labour skill or effort in
producing the work. While patent law is concerned with the relationship between
the invention and the information in the public domain the originally examination
is more concerned with the relationship between the creator and the work. This
means that in determining whether a work is original copyright law focuses on the
input the labour skill or effort that the author contributed to the resulting work.
In creating a work an author will normally exercise labour skill and effort
in a number of different ways for example in producing a portent a painter may
exercise ingenuity time and effort in the choice of subject matter who where in
what pose against what background in ensuring

that the sitter is relaxed:

stretching the canvas and making the frame developing new techniques of
painting in ensuring that the paints and materials used are environmentally
friendly in the mixing of the colours in choosing a title for the work and in
explaining the painting to critics and reviewers. While each of these steps may
help to make the painting a success only some of them will be taken into account
in deciding whether the resulting work is original. The reason for this is as Lord
6 (1964) 1. All FR 465, 469 (Lord Reid) Football League V. Littlewoods (1959) Ch 637, 654
Bookmarkers Ajtertioon V Gilbert (1994) FSR 723.

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Oliver said in Interlego only certain kinds of skill labour and Judgment confer
originality.7
In part these difficulties arise because the effort skill or Judgement which is
needed to confer originality on a work cannot be defined in precise terms. This is
because originality must depend largely on the facts of the case and must in each
case be very much a question of degree. As a result it is very difficult to explain
originality in terms at any overarching principles or rules. Gives this perhaps the
best approach is to took at originality in terms of the types of work in question. To
this end we will look at the ways the courts approach originality in relation to the
following types of works.
(i)

new works

(ii)

derivative works

(iii)

tables and compilation

(iv)

databases computer programs and photograph and

(v)

computer generated works.

New works
The first situation we wish consider is where a new work is created. 8 In
particular we wish to consider the situation for example where inspired by a
particular event a person sits down at their desk and writes a poem or a song. As in
these circumstances the work clearly emanates from the author, there are unlikely
to be any problems in showing originality. The one exception to this is where the
labour is trivial or insignificant. While in most cases this principle is
uncontroversial difficult issues arise in relation to artistic works. The reason for
this is that while in some contests the drawing or a straight line or a circle may be
regarded as trivial when painted by a Rothco or a picasso, it would (or at least
should )not be. This was in effect the position in British Northrop where it was
agrued that drawings of things such as rivets screws. studs a bolt and a lenght or
wire lacked originality because they were too simple. In rejecting the argument,
Megarry I said that he would be show to exclude drawings from copyright on the
7 Interlego v. Tyco Industries (1989) AC 217, 268 (Lord Oliver)
8 While works are never created de novo, we have used term new works as a way of distinguishing
derivative works. It should also be noted that these categories are not mutually exclusive there is
no reason derivative work (or a derivative work)

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mere score of simplicity or on the basis that they were of elementary or

commonplace objects.9 The courts have also been show to conclude that because a
literary work is small it lacks originality.10
Derivative or copied works
The next type or creation of creation that we wish to consider are the so-called
derivative works that is works which are derived from or based upon pre-existing
works (whether or not they are protected by copyright law has long recognized
that it is important that authors should be able to draw and build upon other
works. However in order to ensure that copyright works are not protected in
perpetuity which would otherwise be the case copyright imposes limits on the
types of derivative works that will be protected. To this end, authors can copy (or
use) pre-existing materials and still get copyright protection in the resulting work
so long as they bring about a material change to the raw material more specifically
the labour skill and capital must have imparted to the product some quality or
character which the raw material did not possess and which differentiates the
product from the raw material.11 In so doing the law ensures that any copyright
that is acquired in a derivative work is distinct from the original work that is
incorporated into it.12 The difficult question is deciding where to draw the line
between legitimate borrowing from existing sources and illegitimate copying.
It is very difficult to define what the something special is that distinguishes
original and non- original derivative works. In part this is because it is difficult to
describe in positives terms exactly what it is that the originality requirement
involves. Given this perhaps the best way to approach this issue is to focus on
those (limited) situations where changes made to the raw material have been held
9 British Northrop v. Texteam Blackburn (1974) RPC57, 68 See also karo Trade
Mark (1977) RPC 255, 273 expect of the case of straight line drawn with a ruler (a
case of such barren and naked simplicity which would not be a very promising
subject for copyright.)
10 In some cases where the resulting work is regarded as sufficiently creative, the
work may be very small extract of four lines from poem if Kipling v. Genatson
(1917-23) Macg. CC 203
11 Macmillan v. Cooper (1924) 40 TLR 186, 188, (1923) 93 LJPC 113, Described
in Interlego as perhaps the most useful exegesis on the issue of originality
12 It the original work is still apparent in the new version the licence of the
copyright owner of the original will be needed by both the maker or the new
version and any third party copier
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to be non material and thus non original. Before looking at the situations where a
person exercises labour in the creation of a derivative work yet the resulting work
will not be original. It is necessary to make two preliminary comments.
It should also be noted that the requirement that the labour needs to
produce a materially different work for it to be original is unnecessary where the
same author produces a series of drawings or drafts.13 As Nourse LJ explained:
What the Copyright Act requires is that the work should be the original work of its
author if, in the course of producing a finished drawing, the author produces one
or more preliminary versions the finished product does not case to be his original
work simply because he adopts it without much variation or even it he simply
copies it from an earlier version. Each drawing having been made by him each is
his original work.14
With these general points in mind, we now turn to consider four situations where
derivative works have been held to be non- original. These are where.
(i)

the labour fails to bring about a change in the resulting work.

(ii)

the change in the resulting work is a result or a mechanical or automatic

precess.

(iii)

the change in the resulting work is non- material or

(iv)

the labour is of the wrong kind.

(i)

Where the labour fails to bring about a change in the resulting work. One

situation where a person may exercise a considerable amount of labour yet the
resulting work will not be original is where the labour fails to bring about any
change in the resulting work. This would be the case, for example where there is
a direct or slavish copy of another work or where a work is photocopied. 15While
the tracing or copying of drawings especially technical drawings requires patience
skill labour as Lord Oliver said in Interlogo Copying per se however much skill or
13 Moreover it has been held where a drawing was made from a three dimensional
functional design such a drawing would be original if there was a continuous
design process between the creation of the three dimensional functional object and
the subsequent creation of the two- dimensional drawing copying the three
dimensional object. Marray Engineering v. Nicholas Cesare (1997) unreported.)
14 LA Gear v. Hi-Tech Sport (1992) FSR 121, 136 (Nourse Lj).See also
Biotrading and Financing Oy v. biohit (1996) FSR 393, 395 (not sufficient merely
to be owner of copyright in earlier drawings if later ones which are relied upon are
not significantly different) Cf. Rexnold v. Ancon (1983) FSR 662 (summary
Judgement refused in similar circumstances)
15 British Northrop v. Texteam (Blackborn) (1974) RPC 57, 68
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labour may be devoted to the process cannot make a work original. More
specifically he said a well executed tracing is the result of much labour and skill
but remains what it is, a tracing. It is clear that the reason why tracing and
photocopying do not produce original works is not that there is no labour. Rather
it is that it is not the right type of labour.
(ii)Where the change is a result of a mechanical or automatic process another
situation where that courts have suggested that a change made to a work will be
non material is where the change that occurs in the resulting work is a
consequence of a mechanical or automatic process. The defining feature of a
mechanical or automatic process being the absence of human input: the element
that underlies the originality examination for example in one case it was suggested
that the making of a chronological list which is automatic and only requires
painstaking accuracy would not of itself be original. The reason for this is that the
making of a chronological list requires no element of teste or selection judgement
or ingenuity .16 In another it was held that the routine application of a formula to
produce forecast dividends on greyhound races was not sufficiently original. In
another case the photocopying of an image (and enlarging it by 10 percent) was
said to be wholly mechanical and thus lacking in originality.
It is possible to imagine other situations where the process of producing a
work may be so routine and formulaic that it is effectively a mechanical process
thus rendering it non original that is there may be other instances where the author
is so constrained in terms of the choice that he or she is able to exercise over the
resulting product. This may be the case, for example where the features express
some engineering principle,17 a computer program needs to achieve a particular
function,18 or in the drawing of functional objects. Gives the low threshold that
needs to be satisfied to show originality, it seems that a creator would only need to
exercise a very small degree of control over a work for it to be original. In this
context it should be noted that the courts have been reluctant to exclude artistic
works (which include technical drawings) on the basis that they are simple of
commonplace.

16 Football League v. Littlewoods (1959) Ch 637, 654

17 British Leyland v. Armstrong (1986) RPC 279, 2996 (Oliver Lj)
18 Ibcos Computers v. Barclays Mercantile Highland Finance (1994) FSR 275

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One question that remains unanswered in this context is whether the digitization
of a work (with no other changes) is sufficient to confer originality on the
resulting work. For example would the digital scanning of a novel or the creation
of a digital database from non digital sources give rise to an original work? some
commentators have suggested that the translation of a work into a digital format
(in the case of a literary work from a typographical character to numerical token)
19

may give rise to an original work. While there can be no doubt that the process

of digitization does produce a product which is different it is doubtful whether it

would constitute a material change such as to confer originality on the resulting
work.
(iii)Where the change to the resulting work is non material in some situations
originality has been denied where the labours of a creator fail to bring about a
material change in the resulting product. That is while the efforts of the author
may have led to a change in the resulting product the change (thus the labour) is
not regarded as sufficient to confer originality on the resulting conversely where
the change is material, the work will be original This approach has been used to
confer originality on new editions,20 compilation anthologies translations
adaptations of preexisting materials, as arrangements of music, and engravings in
all these cases the labour of the author not only produced a change it also
produced what was taken to be a material change in he raw material. This can be
seen for example in Macmillan v. Cooper where the Privy Council was called
upon to decide whether a selection of 20,000 words for a schoolboy version of a
40,000 word translation of Plutarch's book the Life of Alexander was original as
Lord Atkinson explained copyright could exist in such a selection is such labour
skill and capital had been expended sufficiently to impart to the product some
quality or character which the raw material did not possess and which
differentiates the product from the raw material, An important factor in the
finding that the selection was not original and thus not protected by copyright was
that the process of selection was motivated by a desire to exclude material which
was of an indecent or indelicate character and unfit for schoolchildren. Such a
process did not required great knowledge sound judgement literary skill or taste to
19 Laddie et al para 20.67 suggest that it was akin to the copyright protection given to the
speechwriter in Walter v. Lane (1900) AG 539.

20 Black v. Murray (1870) Mag GCC 341, 355.

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be brought to bear upon the translation. 21That is the reduction did not involve the
application of the something special that is needed to confer originality on the
resulting work.
This decision can be usefully contrasted with Macmilan Publishers v. Thomas
Reed Publications. The case turned on whether the publication of a number of
small local charts that contained an outline of the coastline as well as relevant
information (such as depth soundings buoys and geographical features )were
original More specifically the question arose as to whether the charts were original
given that they wee drawn the question arose as to whether the charts were
original given that they were drawn from and based upon Admiralty charts. Unlike
the labour which was used in Macmillan v. Cooper the High Court held that the
labour used in producing the simplified charts involved the appropriate level of
work and skill for the resulting work to be original.
In this context it may be helpful to pause and ask what is it that
distinguishes the non- original reduction in Macmillan v. Cooper from the
simplification in Macmillan v. Reed that was held to be original. Some guidance
as to the way this question may be answered is offered in Macmillan v. Cooper
where the Privy Council distinguished the non- original reduction from a
(hypothetical) abridgment, which would have been original had it been carried
out. While the reduction of the Life of Alexander from 40,000 to 20,000 words
was not original the Privy Council said that the (hypothetical) process of
abridgment would have required some form of learning Judgement literary teste
and skill.22 That is is lacked what the courts saw as the necessary skills to quality
for protection. Quoting from an early edition of Cosiger's Treatise on copyright
the Privy Council said the act of abridgment is an exertion of the individuality
employed in moulding and transfusing a large work into a small compass
Independent labour must be apparent and the reduction of the size and work by
copying some of its parts and omitting others does not do this. In contrast the
Privy Council said that the reduction of the Life of Alexander from 40,000 to
20,000 works was non original because it lacked the exertion of the individuality
employed in mounding and transforming a large work into a small compass.
21 Mar Millan v. Cooper (1924) 40 TLR 186.
22 MacMillan v. cooper (1923-4) 40 TLR 186, 187.

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(iv) Where the labour is of the wrong kind. Another situation where an author
may exercise a considerable amount of labour and the work not be original is
where the type of labour used does not correspond to the type of work for which
protection is sought. This can be seen in Interlego where the Privy Council was
called upon to decide whether there was copyright in drawings for the childrens
building blocks known as Lego bricks. After Logos patents and designs in the
bricks expired in 1975, Lego sought to retain its monopoly over the bricks by
claiming that copyright existed in drawings produced in 1973. As these drawings
were based upon earlier drawings, the question arose as to whether the alterations
made in 1973 were sufficient to produce an original artistic work. The major
differences between the drawings concerned the sharpening of the outer edges of
the tubes on the brick, changes in tolerances and increase in the radii on the outer
edges of the knobs on the bricks from 0.2 to 0.3 mm. Of the changes made, only
the first was shown pictorially, the others by letters and figures .23
While the Privy Council recognized that these changes were technically
significant and the result of considerable labour and expertise, they denied that
there was copyright it the later drawings. Lord Oliver did not necessarily mean
that it was therefore an original drawing. As Lord Oliver explained (t) here must
in addition be some element of material alteration of embellishment which
suffices to make the totality of the work an original work. While Lord Oliver
acknowledged that this could be a relatively small alteration, he added

the

important rider that in the case of artistic works the change must be visually
significant. That is. to confer copyright the skill and labour must be relevant to tic
work in question, On the facts it was held that as the changes made to the
drawings were Primarily to the written specifications, this was not an alteration of
visual significance. As such, the drawings were not original. If this principle IS
applied in other Contexts, it may have important ramifications for forms of
appropriation art; that is where artists focus on the meaning rather than the visual
appearance of the work.24
Tables and compilations
23 Interlego v. lyco Industries (1989) AC 217.
24 See B. Sherman, Appropriating the Postmodern Copyright and the Challenge of the New
(1995) 4 Social & Legal Studies 31 P. Anderson, On the Legal Limits of Art (1994) Arts &
Entertainment Law Review 70.

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In this section, we consider the way in which the originality of tables and
compilations has been approached. As we explained earlier, as a result of the
Database Directive the law in this area has recently undergone a number of
changes: notably, the introduction of a new standard of originality for databases.
While this topic is discussed below, it is first necessary to look at the way the
originality of tables and compilations has been dealt with in the past.
Over time the courts have used two different and largely inconsistent
approaches when determining whether tables and compilations are original. While
the approaches are similar in so far as they focus upon the labour exercised in the
creation of the work, they differ in terms of the type of labour that is needed for
the work to be original. In some cases, originality arises through the application of
the appropriate skill, labour, and effort in the creation of the work (the quality of
the labour used in creation of the work). More controversially, originality can also
arise through the application of a sufficient amount of routine labour (the quantity
of the labour used in creation of the work). We will deal with each in turn.
(i) Quality of the labour. The originality of tables and compilations may arise
through the application of the appropriate skill, labour, and effort in the creation of
the work (the quality of the labour used in creation of the work). It seems that the
requisite Labour may be employed either in the way the information to be
included in the compilation is selected, or the way that information is arranged.
For example, if we take the case of an edited collection originality may arise as a
result of the way the author to be included in the volume are selected or through
the way the chapter are origanized given that tables and compilation are similar to
derivative works (a list is after all made up from pre existing material) the
comments made above about the original it of derivative works apply here.
Looking at the question negatively it scams that a table or compilation would not
be original where the selection and arrangement is directly or slavishly copied
from another work another situation where a compilation would lack originality is
where the resulting work is a consequence of a mechanical automatic of formulaic
process. The position would be the same where the material to be included in a
compilation was selected automatically. The reason for this is that the defining
feature of a mechanical or automatic process is the absence of human input the
element that underlies the originality examination in one case it was suggested
that the making of a chronological list which is automatic and only requires
16 | P a g e

painstaking accuracy would not of itself be original. 25 reason for this is that the
making of a chronological list requires no element of taste or selection judgement
or ingenuity. On this basis it seems that where a list is organized alphabetically it
would not give rise to an original work (although originality may arise through the
quantity of labour used in creating the compilation)
(ii) Quantity of the labour. In certain situations the courts have accepted that
themere exercise of a substantial amount of routine labour may give rise to an
original work. For example, where a compiler spends a considerable amount of
time and effort creating a chronological list of television programmes or an
alchemically ordered list of layers, the resulting work will be original. That is,
even though in creating the table or compilation the author may not have
exercised the appropriate quality of labour, the work may nonetheless still be
original if the process of compilation involves a sufficient level of (mundane)
labour.
Where there is insufficient labour (and originality does not arise through the
exercise of requisite qualitative skill, labour, and effort), the resulting work will
not be original.26 For example, where the process of compilation involves little
effort or judgement and the effect is commonplace, the work will not be treated as
original. Thus the selection of seven tables at the front of a diary, consisting of
things such as days and dates of the year, tables of weights and measures, postal
information was held to be non-original. Similarly in another case a compilation
of a local timetable chewing a selection of trains to and from a particular town that
was made from official railway timetables was held to be non-original. In these
circumstances the difficult question is knowing how much labour needs to be
exercised for the resulting work to be original.27
The willingness to accept that a substantial amount of routine labour may give rise
an original work is usually explained in terms of the fact that defendants outght
not to he able to avail themselves of the labour and expense which a claimant
invested in the production of a work. Instead of asking whether the work is
25 In relation to indisputable facts (such as when the sun rises or sets), it was said
that there is no room for taste or judgment. There remains the element of choice as
to what information should he given all and J table can do is state the facts
accurately; Cramp v. Sniythson 119441 AC 329, 336 (Viscount Simon).
26 Exxon Corporation v. Exxon Insurance Consultants International (1982) Ch 119

27 Cramp v. Smithson [1944) AC 329

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original and thus protectable. Where the courts have focused on the quantity of the
labour exercised in the creation of the work they have tended to Start from the
premises that any Labour or effort that a claimant exercised in the production of
work ought to be protected (so long as it reaches the requisite quantitative
threshold). This is rejected in the mam: what is worth copying is prima facie
worth protecting28 One issue that has yet to he answered in this context, to which
we will return shortly, relates to the impact that the new standard of originality
which As flow to be applied to databases: namely, of authors own intellectual
creation will have upon these decisions.
The position in the UK where the exercise of non-creative labour can give rise to
an original work can be contrasted with the position in other jurisdictions such as
Germany (where case law suggests that there is a requirement of some minimal
degree of creativity) and France (where originality is said to require the imprint
of the authors personality on the work or an intellectual contribution). The UK
position is also at odds with the position in the USA where, as the Supreme Court
pointed out in the Ferst decision, a work must have at least a minimal degree of
creativity to be protected.29 In relation to the question of the originality of a whitepage telephone directory, the Supreme Court held that since facts were not
created, the names and numbers were not themselves copyrightable. Moreover,
while the collection might have been original had the selection or arrangement
involved some minimal creativity as the directory in question had been selected by
area and arranged alphabetically it did not meet that minimum threshold.
It should be noted that routine labour has only been used to confer originality on
the resulting work in the UK in a limited number of situations. In particular, it has
only been applied to a limited category of works: largely to tables and
compilations of things such as maps, guidebooks. street directories, dictionaries,
works and selected of poems More specifically the cases which have accepted that
originality can arise through the exercise of a sufficient degree of labour have
tended to focus on the amount of labour exercised in the amount of materials to be
included in tables a compilations that is. they take place in the pre-expressive
rather than the express stage.30
28 University of London Press v. University Tutorial Press [1916) 2 Ch 601
29 Feist Publications v. Rural Telephone Service to. 499 US 34(1 (1991).
30 Cramp v Smythson 1I9I AC 329, 330
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Databases. photographs. and computer programs

As we have already noted, the European Council has begun to harmonize
copyright law within Europe. The Software and Database Directives require that a
computer program or database can only be protected by copyright where it is the
author intellectual creation. A similar test was also introduced for photographs in
the Duration Directive. While all three Directives require a similar standard of
originality for the respective works, in implementing the Directives the UK
Government responded differently. In implementing the Software and Duration
Directives the Government did not consider it necessary to amend the Copyright
Act in relation to software or photographs. As was the case before the Directives,
such works are protected if they are original. By contrast, in implementing the
Database Directive, the UK Database Regulations explicitly amended the
originality requirement of the 1988 Copyright Act in relation to databases to
include the new criterion of the
authors own intellectual creation In particular, section 3A(2) says that 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
authors own intellectual creation.
This inconsistent implementation of the EU Copyright Directives has left the
current law unclear. Perhaps the most plausible reading of the current situation is
that the only change that has taken place in relation to originality is in respect of
databases and that the standard for other works remains the same. The fact that no
changes were made to the standard of originality for computer programs and
photographs seems to suggest that it was thought that the position in the UK prior
to the implementation of the Directives Was already similar to the position
required under the Directives Conversely, the fact that a databases seems to
suggest that the test of originality for databases tables and com pilations used in
the UK. was not the same as was required under the database Directive. That is it
seems to suggest that a new standard to originality has been introduced in relation
to databases (table and compilations) .31
31 A government spokesman has confirmed that the legislative intention, motivating the
amendment in line with the EC standard, was that it be applied only to databases. Fourth Standing
Committee on Delegated Legislation, 3 Dec. 1997, the Minister of State, Dept. of Trade and
Industry (Mr lan McCartney). (The criteria apply to databases for the reasons I have given and
apply only to databases. There is currently no definition of originality and it has been a matter for
interpretation by the courts, use as the nw regulations will be.)

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The position in the UK under the revised law is similar to the old law in that the
originality of the database may arise either through the selection or arrangement
the contents of the database The extent to which the new law will differ depends
on the way an authors own intellectual Creation is interpreted by the courts. At
present it is difficult to predict how a will be Ulter pried. It has been widely
assumed that the new EU standard is gher than the prior Hritish standard of
originality.32 However, common lawyer might find it difficult to see how the
phrase differs the words used by Peterson J in University of London Press v.
University of London Press. v. here is some indication of the intended standard in
Recital 17 of the Duration Directive. This plains that a photograph will be original
if it is the author own intellectual creation reflecting his personality. Whether
this will he used in relation to databases and computer programs is yet to he seen.
While the courts may use the new standard as a way ol rethinking the law in
relation to originality, for the most part the new standard will probably not lead to
different results. In particular, where the originality derives from the quality of the
labour used in either the selection or arrangement of the database (table or
corporation), it is still likely to be regarded as an authors intellectual creation.
The one area where the new definition may lead to a change is where originality
arises through the mere exercise of routine labour; that is, where the quantity as
distinct from the quality of the labour is used in the creation of the database.
Where all an author has done is to exert a considerable amount of effort in the
creation of a database, it is difficult to see how this, on its own, could be seen as
an intellectual creation, especially one which reflects the authors personality. As
a result it is possible that the previous decisions which accepted that the exertion
of a sufficient amount of routine labour could confer originality on tables and
compilation may no longer he good law. If so, the UK will come closer to the

32 See, in the context of program S G. L) work if, Copyright Patents or Sui Generis: What
Regime Best Suits Computer Programs? in H. Hansen (ed.), International Intellectual Property
and Policy (1991,) 165, 168; J. Drexl, What Is Protected in a Computer Program? (1994), 96-7
(emphasizing that the European standard was a direct reaction to the German inkassoprogram
decision, and the standard adopted is consistent with the copyright approach of treating originality
as requiring the independent creation of an author, though not mere sweat-of-the-brow).

20 | P a g e

position of other EU countries. It will also lead to a similar position in UK law as

Feist produced in the USA.
While the only explicit change that was made to UK law of originality w
relation to databases, there is a possibility that the EU Directives will indirectly in,
influence the standard of originality for photographs and computer programs, 85
As the language of the 1988 Act should be construed as far as possible to be
consistent with international obligations86 there is a possibility that the originality
of photograph and computer programs in the UK may be read in light of the EU
standard of an authors own intellectual creation.
No judicial guidance has been given in the UK as regards the exact
circumstances in which photographs will be regarded as original. While there is
little doubt that protection will be granted to more artistic photographs (where
there may be considerable effort in selection of the material to be photographed
and the way the photograph is executed in terms of light, angle, exposure) doubts
have been raised about the originality of routine snapshots. If the Duration
Directive was to have an impact on UK law in that area, it would be likely to
increase the possibility that snapshots were not protected by copyright.
The courts have acknowledged that it is not always appropriate to treat
particular statements concerning originality made in one context as being
applicable to other contexts. For example in Interlego v. Tyco Industries (1989]
AC217 the Privy Council declined to apply statements of the House of Lords in
Ladbroke v. William Hill (1964} 1 WLR 273 to the effect that a work was original
if it was a product of labour, skill or judgment to the context of derivative artistic
works. Unfortunately, the courts have provided little guidance as to when
particular elaborations are applicable.
Computer-generated works
Prior to the passage of the 1988 Act, there was some uncertainty as to the
status of computeriener1ted works; that is, to works created by translation
programs, search engines and the like. In part, the 1988 Act resolved this
uncertainty by providing that a literary, dramatic, musical or artistic work attracts
copyright protection even where it has been generated by computer in
circumstances where there was no human author. While these changes were
useful in so far as they clarified that creations generated by a computer could be
classified as works, they said nothing about how the originality of such works was
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to be determined. The particular problem that arises with computer-generated

works is that it is difficult to see how the existing criteria of originality which
focuses on the relationship between the author and the work, 33can be applied to
computer-generated works which, by definition, have no readily.
Given that computer-generated works are protected where there is no
human author, the question arises: what is the test for originality that is to be
applied to such works? One possible test would be to ask whether the work was
produced as a result of the independent acts of the computer. That is, is the work
original in the sense that it was knot copied? Alternatively, a court might say that
originality exists where the computer has produced a work which is different from
previous works (i.e. it is novel). It has also been suggested that the courts ought to
ask the hypothetical question: if the same work had been generated by a human
author would it have required the exercise of a substantial amount of skill, labour,
and effort? If yes, then the computer-generated work would be original.

Conclusion
As we have seen, the law treats originality to be a test of origination from the
author, skill, labour and judgement, and it has been shown in the case-law that this
standard is very low. Furthermore, the legal definition of originality bears very
limited resemblance to the common conception of the term, but in using the word
original we treat authors as though they are sources of completely free and new
creation. However, arguments made by commentators such as Jessica Litman are
very forceful, and show that it is extremely unlikely that creation exists free of
influence and experience.
But when we consider altering the legal definition of originality to compensate
for influence and experience, we find ourselves struggling against evidential
problems and difficulties in creating definitions. Indeed, if Litman is correct in
asserting that nothing is original, a test of absolute originality would mean that
nothing would receive protection because no work could be created free from
33 CDPA s.9(3), 178. Cf. Payen Componets South CaI Bovicgaskets(1996) 33 JPR 406,411
(Supreme Crt. of South Africa) (distinguishing between .0putergenerated and computetai5ted
works). Apparently the issue of such works was considered in the USA as early as 1965. See A.
Miller, Copyright Protection for Computer Prograrns Databases and Computer enervated Works:
Is Anything New since CONTU? (1993) 106 Harvard Law Review 977, 1042 if. (describing the
issue as copyrights next battlefield but arguing that the problem remains conceptual for the
moment because there will be identifiable human authors for the foreseeable future).

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influence and experience. Adopting a system of protection dependant on the level

of originality still presents the same problems, namely that absolute originality
still must be identified. Also, identifying influences from the millions of possible
experiences in ones lifetime would be insurmountable and jury decisions would
provide no reasoning and thus the system would become too vague. Specific
requirements of originality per medium is also flawed because of the complexities
of defining a particular genre and the constant cross-fertilisation of different
styles.
Thus, redefining the laws requirement of originality to bring it into line
with the common conception of the term presents difficulties that may be too
much trouble. It could be viable that the term original is substituted with
something more appropriate to the test that the law undertakes such as, for
example, the Development of Creative Works Test. But perhaps other areas of
law could be reformed, with the aim of protecting and increasing the public
domain, out of which creativity stems. At present, the law makes assumptions of
originality, even though works may be undeserving of this privileged status and
this assumption should be combated.
We are all capable of creativity, and this is in no small part down to influences
acting in our lives; the places we visit, the people we meet and the people who we
respect and admire. Authors should be proud of who and what influences them,
because in many cases, without influences, the people that entertain and inspire us
may not have started down the road of creativity.

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Bibliography
Abrams, H. Originality and Creativity in Copyright Law (1992) 55-SPG Law &
Contemporary Problems 3
Baade, P. Photographers Rights: Case for Sufficient Originality Test in
Copyright Law (1996) 30 John Marshall Law Review 149
Litman, J. The Public Domain (1990) 39 Emory L.J. 965

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