2.. C - originality

Question 1

Ricketson

Answer 1

“the dividing line between original… works and unoriginal… works, remains an uncertain and shifting one”

Question 2

MacMillion v Cooper (1923)

Answer 2

originality “must depend largely on the facts of the case and must in each case be very much a question of degree”

Question 3

The classic test? (UK)

Answer 3

University of London Press v University Tutorial Press [1916]

3 parts

• ORIGINATE from author
• not slavishly copied (can be inspired or based)
• NO novelty requirement or inventiveness or aesthetic merit

Question 4

MOST COMMON LABEL FOR UK TEST?

Answer 4

SKILL LABOUR AND JUDGEMENT

• basically looks for authorial contribution (originality means ORIGINATES from author not novel)
• sometimes used disjunctively
• sometimes other words are used (work, effort, knowledge)

Question 5

NO REQUIREMENT FOR CREATIVE THOUGHT (UK test)

Answer 5

Ladbroke v William Hill

• originality does not demand creative thought
• artificial to divide process into expressive (writing down odds) and pre-expressive parts (coming up with the odds)

Lord Pearce: original does not demand original or inventive thought, just that work should ORIGINATE from the author

Question 6

Amount of SLJ must be SUBSTANTIAL or at least not trivial

Answer 6

law declines to recognise originality if labour or result is trivial/insignificant

e.g. Merchandising Corporation v Harpbond situation (they said it wasn’t a painting but decision is also justifiable on basis of trivial outcome so no originality)

Question 7

Lord Oliver (PC) - Interlego v Tyco

Answer 7

“only certain kinds of skill, labour, and judgement confer originality”

• slavishly copying is labour but not originality
• ‘well-executed tracing’ = SLJ but it “remains … a tracing”

Question 8

Cramp v Smythson [1944]

Answer 8

POCKET DIARIES (tables in the front)

• sweat of the brow is not enough (no originality - no C)
• selection = no originality (chasing to include one of stock materials is minimum labour and judgement so not original)
• quality of tables = tables itself have no variation of content (need to be accurate) so no room for judgement so no originality

Question 9

Football League v Littlewoods Pools [1959]

Answer 9

FOOTBALL FIXTURE LISTS

• sweat of the brow enough
• there is SLJ and ingenuity in creation + painstaking hardworking
• no C in facts/information but C in the way information is selected and arranged

it is the painstaking effort that justifies C protection

Question 10

s.3A DATABASES

Answer 10

Where SWEAT OF THE BROW was enough in UK cases –> all databases

Dispute about whether SOTB is enough before for originality

NOW it deffo doesn’t exist –> where it was successful before was in databases and now database requires OWN INTELLECTUAL CREATION

Question 11

Walter v Lane (HL)

Answer 11

reporter’s copyright

• yes originality, so C in the report
• considerable SLJ (to record accurately and precisely)
• Speech marker = irrelevant (distinguish speech from record of speech)
• C should prevent unfair competition (don’t reap where you don’t sow)
• Giving C does NOT prevent other reporters making their own report and having C in that
• POLICY considerations (support press, giving C for socially valuable activities)

Question 12

Express Newspapers v News (UK) [1990]

Answer 12

2 potential C works - article itself and quotes inside the articles
- reporter has C in the reported quotes and article, and interviewee has C in literary work of the words fixated

• BUT courts hesitated before saying it was infringed because rewording is rarely infringement
• interview took SLJ (journalist selected questions, and which quotes to use)
• Walter still good law - applied it here and said more SLJ than reports in Walter
• cases = difficult, doesn’t distinguish between fixation and expression enough (no C just because fixated but if you contribute content/expression then you could get C)

Question 13

Black v Murray

Answer 13

courts protect new editions (even though based on pre-existing works)

Question 14

Byrne v Statist Co [1914])

Answer 14

Courts protect compilations, anthologies, translations (even though based on pre-existing works)

Question 15

DERIVATIVE WORKS

Answer 15

pay attention to facts of each case – the cases do not necessarily fit together

An update/second edition of a book might not be protected – author must expend enough effort to make something new

Examine facts – in PQs, work out which elements match up with particular facts

Difficult Q: because you’re working out how much extra labour counts

Question 16

Interlego v Tyco [1989]

Answer 16

RATIO: S & L in mere copying (no matter how much effort) does not give C

• new drawings only differed in slight respects to the original bricks (slight sharpening of the edges), but mostly just changed technical specifications (around the drawings)

NO C IN MERE TRACING
YES Skill and Labour but no originality (no material alteration or embellishment/visually significant difference - so no originality, Lord Oliver)

Question 17

Hyperion Records v Sawkins [2005]

Answer 17

YES C
- SLJ in adding information that could potentially affect totality of sounds produced by musicians is pertinent

• additions had sufficient aural and musical significance to attract C protection
• NOT mere slavish copying (S added a quality work didn’t already possess, music is not just notes on a page, S affected playability of the original manuscript)

Question 18

ZYX Music v King [1997]

Answer 18

Q of whether derivative work has C is SEPARATE to whether derivative work infringes C in first work

• can infringe original song but also have C

Question 19

Antiquesportfolio.Com v. Rodney Fitch [2001]

Answer 19

SIMPLE photos of 3D objects can have originality

- considerations of aesthetic judgement: positioning, angle, lighting, focus

Question 20

Eva-Maria Painer v Standard VerlagsGmbH, [2012]

Answer 20

Original if AUTHORS OWN INTELLECTUAL CREATION

• it is, if photographer had to express creative abilities by making free, creative, choices
• photographer could include PERSONAL TOUCH so photo has C
• P’s personality reflected in arrangements

Question 21

Temple Island Collections Ltd v New English Teas Ltd [2012]

Answer 21

The fact photo was of LDN landmark = does not mean it is not original

3 aspects to originality in photos (Birss J):
1. specialities of angle, shot, light/shade, exposure, technique

2. creation of scene to be photographed
3. right place at the right time

here it was 1 and 3 (and manipulation later)
- is 3 alone enough (e.g. goals/nature pics)? doesn’t matter, 1 will always be involved

Question 22

Bridgeman Art Library v Corel (1999)

Answer 22

US CASE but courts applied UK law

• photo of 2D object (piece of art for postcards)
• HELD: NO C (no visual difference or amendments)

CASE HIGHLY CRITICISED

Question 23

Newspaper Licensing Agency v Meltwater

Answer 23

British courts had been reluctant to protect titles, slogans, and short phrases but after Infopaq, this attitude seems to be changing

• in this case, CA held “policy considerations” that may once have informed UK reluctance are now irrelevant
• some headlines will have C
• Proudman J adopted the definition of originality from Infopaq (and CA confirmed)
• depends on LENGTH (longer = more likely to have personal touch) and QUALITY (descriptive? alliteration?)

if protection of titles is now governed by Infopaq then there is some guidance

Question 24

Infopaq v Danske (EU ORIGINALITY STANDARD)

Answer 24

C applies to all works which are the author’s own intellectual creation

• creative choice?
• creative expression?

Question 25

APPLYING INFOPAQ OUTSIDE OF INFRINGEMENT CONTEXT

Answer 25

Eva-Maria Painer v Standard (photo - own intellectual creation if make creative choice on angles, poses, lightning) BSA - no C in GUI because no author's own intellectual creation (dictated by function, no room for originality) FAPL v QC Leisure - UK said football match is not a category of work so not protected, ECJ said it is not original (dictated by rules and constrained so no ability for creative choices)

Question 26

Football Dataco v Yahoo! UK Ltd [2012]

Answer 26

CONFIRMED INFOPAQ own intellectual creation test - TEST NOW HARMONISED - selecting data can be original but here it is CONSTRAINED so no room for creative choice and therefore not likely original (SLJ doesn't affect it) CONTRAST LADBROKE: it said not to break 'originality' into expression and pre-expression (but they did that here, only looked at expression not creation)

Question 27

Meltwater v NLA [2012]

Answer 27

Court said Infopaq is really about explaining that originality is not a test of novelty (and that was always the UK position) - INFOPAQ did not change the UK test - BUT he concludes that headlines are original because of a lot of SLJ (so cites UK law which would suggest not original, rejects EU test which would say it is enough to be original, then concludes headlines are original) - perhaps suggesting UK test has evolved so now it can be called equivalent to EU test

Question 28

SAS Institute Inc v World Programming

Answer 28

Court explicitly considered whether it is OWN INTELELCTUAL CREATION using Infopaq language - the more restricted choices are the. less likely creative choice - he says the law has changed and that this has raised the hurdle for protection NO CONFIRMATION FROM HIGHER COURT