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This essay will consider the development and continued relevance of the
labour, skill and judgement criteria of originality. After a historical overview
of originality, the approaches of other jurisdictions such as France and
Germany will be assessed. This will highlight that although the differences
between the jurisdictions are not as pronounced as they first appear; the UK
approach remains less sophisticated. We will then focus on the European
Union standard as developed in Infopaq and applied by the UK Court of
Appeal in Meltwater. It will be concluded that this European Union standard
signals the beginning of the end for the labour, skill and judgement criteria.
The criteria are not without merit, having reflected the UKs focus on
protecting works from misappropriation. But the European Court of Justice
(ECJ) is clearly moving towards a harmonised standard of originality and it is
widely believed this standard demands a higher threshold than the labour,
skill and judgement criteria can offer.
Walter v Lane[3] has been described as the case where the essential
elements of originality were expounded[4]. Although it was concerned
primarily with authorship (as originality was yet to enter the statute) it is still
regarded as undeniably good law[5]. The court dismissed the view that a
work must be an original composition of value and interest[6], stating this
was neither expressly or impliedly present in the statute. It did not matter
that the words came from someone else, provided the author displayed
labour, skill and capital in producing their work. If this was found the court
would not allow another to misappropriate it.[7]
Walter v Lane received a mixed reaction at the time- Strahan interoperated
it as a simple and natural construction on the words of the Copyright Act
1842[8], whilst Mofatt disagreed, believing the court to have come to a
startling conclusion[9]. However both were in agreement that the Copyright
Act 1842 was not fit for purpose.
ii) The Inception of Originality
The Copyright Act 1911 saw the inception of originality on statuary footinghowever no definition was given. The court addressed this in University of
London Press v London Tutorial[10]. Firstly the case clarified that originality
had nothing to do with original or inventive thought- this is consistent with
the principle established in Hollinrake v Truswell[11], that copyright is
concerned with expression. Further originality did not require work to be
expressed in a novel form, but that the work must not be copied from
another work - that it should originate from the author[12]. This is a very
low threshold which is further solidified by Peterson Js comment that what
is worth copying is prima facie worth protecting[13].
Football League Ltd v Littlewoods[14], amongst other cases, solidified the
labour, skill and judgement criterion. Claims that the implementation of
original into the statute required a higher standard than Walter v
Lane never came to fruition[15]. Ladbroke v William Hill is a more modern
example of how the law currently operates- this case related to table and
compilations as literary works. The case reiterated the requirement of
labour, skill and judgement and that originality required only that the work
originated from the author. It also displays that such a low threshold is
required to balance two competing policy objectives. Firstly it allows
individuals to protect the fruits of their labour whilst also ensuring
protection given... is in no sense a monopoly, it is open to a rival to produce
the same result if he chooses to evolve it by his own labours[16]. This case
also showed the court would consider the pre-expressive stage of the work.
Thus labour, skill and judgement in accumulating the information would be
considered. Therefore even though the arrangement of the work was not
enough to convey originality, its contents were. This is a logical extension of
a UK court looking to protect economic rights, but (as will be discussed later)
it is expressly at odds with the EU standard.
work was original. The House of Lords disagreed with this judgement stating
there was no element of skill or originality in the order in which the tables
were arranged. This displays the minimal margins that can determine
whether originality is found and that more concrete guidance must be given
to ensure certainty in the law.
iii) Germany
In Germany the Authors Rights Act 1965 Article 2 (2) states that for a work
to be protected; it must be of the authors personal intellectual creation.
This higher threshold protects copyrights purpose of encouraging and
protecting the result of intellectual creativity[35], whilst also protecting, in a
proportionate manner, those works that do not meet the higher threshold of
originality.
A good case for displaying the potential differences between Germany and
the UK is Sawkins v Hyperion[36]. Here the UK protected a derivative work
as Sawkins had displayed labour, skill and judgement in adding information
to produce playable editions of Lalandes music. This would be unlikely to
meet the German threshold. However Article 70 of the Authors Rights Act
grants a neighbouring right for works that represent the result of scientific
analysis and differ in a significant manner from previously known editions of
the works or texts, these can be protected for 25 years. It is also possible
that Sawkins could have gained protection under the Law Against Unfair
Competition, particularly section 4 (9) which concerns the exploitation of
anothers reputation or the misappropriation of anothers work.
In Hyperion v Sawkins it was held that others could still copy Lalande's
music, all that was restricted was the use of Sawkins work as a short cut to
doing this. There seems no reason why the German courts could not utilise
their statutes to come to a solution that was just as agreeable. Indeed it
could be argued the UK should consider this approach for more accurate and
relevant outcomes, rather than using copyright as a catch-all category.
iv) Are the approaches really that different?
It is argued that in reality the approaches are not as distinct as their labels
suggest. Waisman argued that it is widely accepted that a very small
amount of whatever the chosen standard requires is enough to consider that
a work is original; that is, a minimum of skill and judgment, a minimum of
creativity or a minimum of personality[37]. Thus as only a small amount is
needed, the distinction is blurred and most works will be granted protection
regardless of the standard used.
The strength of this argument can be seen in Sawkin v Hyperion Record- this
is a controversial case yet originality was granted by both the English and
the French courts[38]. The French court held that the intellectual and
personal contribution required was satisfied by the personal and arbitrary
artistic choices made by Sawkins[39]. Whilst the English claimed the work
had not been slavishly copied, but that Sawkins had exercised considerable
skill and judgement. It is important to note that the UK courts accepted that
double creation is a possibility- whilst the French court would not allow an
exact reconstruction of the work to be granted copyright. Therefore Waisman
perhaps goes too far in dismissing the labels as meaningless. Valles more
reserved opinion is more persuasive- he states that it would be inexact to
conclude the differences... have disappeared but the process of convergence
promoted by both sides should not be ignored[40]. Therefore it could be
argued there is little point in adopting the French doctrine as the outcome of
cases would remain the same.
v) Berne Convention
When comparing the international policies on originality, the Berne
Convention must be mentioned as it represents the internationally agreed
principles of copyright. Gervais believes that the UK standard is incompatible
with the Berne Convention. A reason for this is that Article 2(5) states
collections...which, by reason of the selection and arrangement of their
contents, constitute intellectual creations shall be protected[41]. Further a
WIPO expert committee stated that although Article 2 (1) does not explicitly
define originality it indicates that only those productions are considered
works which are intellectual creations[42]. Therefore the argument is that
originality requires intellectual creation by definition. As stated in The
General Report of the Berne Convention Revision conference: we are already
using a term which means we are talking about personal creation.[43]
The first question was whether the intellectual effort and skill of creating
data should be excluded. The ECJ responded that only the structure of the
database and not its contents would be considered. Therefore the UK courts
could no longer assess the pre-expressive efforts of the author. Further, the
ECJ seemed to suggest that authors own intellectual creation represented a
higher standard of originality. This is because the court claimed labour and
skill was not enough to constitute originality in isolation but that the
arrangement of the data must amount to an original expression of the
creative freedom of the author. However it is up to the UK courts to
That said, the court also confirmed that a national legislature is precluded
from granting copyright protection under conditions which vary from that of
Article 3 (1). This is significant: when writing extra judicially Justice Laddie
stated that this European standard is not just a raising of the threshold. It
imposes a requirement which is fundamentally different in kind. He added
that there is now a significant qualitative factor on the test...there must be
some subjective contribution, sweat of brow will not do.[48]
words that the author may express his creativity in an original manner and
achieve a result which is an intellectual creation of a literary work[52].
Vousden criticised this decision claiming the ECJ was making law rather than
interpreting it. He claimed that the court used a number of legal fictions to
support its judgement and that this would make the law more uncertain[53].
This seems agreeable, as Rosati points out, the court derived support from
the fact that intellectual creation subsisted in other directives (such as the
Software Directive and Database Directive)- however these directives were
harmonised to take account of the special features or the special technical
nature of the category of work.[54] Thus Vousdan may be correct in arguing
that this decision is not a logical application of any pre-existing law.
However others disagreed with this- Derclaye believed that the judgement
was generally beneficial both for authors and legal certainty. Further she
described it as dropping a bomb in the UK copyright landscape[55]. The
point about this higher level of criterion being beneficial for authors is
interesting. Both Derclaye and Vousdan believe cases such as Francis
Day could be decided differently under Infopaq. This is because the ECJ
clearly wants the national courts to consider qualitative aspects of the work,
rather than quantitative - therefore a minimum of two words could convey
originality if they demonstrated the authors own intellectual creation
through the choice, sequence and combination of words.
However some argue the Dutch court has not followed this advice. In the
case ofDMO Marketing BV the judge did mention the authors own
intellectual creation- however there was no real substance behind this. For
example the judge failed to mention which paragraphs of Infopaq informed
his decision[58]. Vousdan claimed any reference to Infopaq was simply
judicial vanity and it was clear only national precedent had been
considered. He believed if other jurisdictions took a similar approach there
would be no hope of harmonisation. Such scepticism from Europe may offer
hope to advocates of the labour, skill and judgement doctrine
text extract of not more than 256 characters comprising the headline from
the article, the first few words after the headline and the context in which
the keyword was found. The question for the court was whether copyright
could subsist in these texts- a key factor being whether they could be
considered original under Infopaq and the consequent effect on previous
case law advocating the labour, skill and judgement docterine.
The relevant sections of Infopaq were stated by the judge. Firstly, Paragraph
48, this displays that originality will be found when an extract expresses the
authors own intellectual creation, which is for the national court to decide.
Secondly, paragraphs 38-39 were described as having particular
importance. According to these sections a part of the work is to be treated
no differently from the whole of the work- provided that they contain
elements which are the expression of the intellectual creation of the author
originality will be found. The judge concluded that copyright could subsist in
the headlines.
The court in Meltwater went on to state the test of quality has been restated but for present purposes not significantly altered by the Infopaq case.
From this we can infer that the court will still consider previous judgements
under the labour, skill and judgement criteria. Indeed in Meltwater there
was clear evidence that this criteria had been considered; it is not the
completed work as published but the process of creation and the
identification of the skill and labour that has gone into it which falls to be
assessed. It is difficult to assert previous case law has been overruled when
the judgement makes such as express reference to the principles developed
in Ladbroke v William Hill.
However the COAs view here is not without qualification or merit. After
stating the continued relevance of previous case law the judge recognised
many questions remain unanswered by the Court of Justice and the full
implications of the decision have not yet been worked out. If we couple this
with the courts comments that the EU standard must be followed and that
the authors own creation is the only real test, then it would seem the court
is leaving the door open to change if EU decisions demands it. However due
to the ambiguous nature of the standard set out in Infopaq it remains
consistent to apply previous case law.
Hoppner agrees with this position, he argues that although the UK courts
may be relying on an overly expansive interpretation of Infopaq, they are
not wrong to do so[60]. In support of this he cited similar approaches in
other jurisdictions, such as the Belgian decision of Coipresse SCRL V
Google[61]. Further, according to Hoppner, the European court does not
have jurisdiction to harmonise member states in this areatherefore Infopaq should only be seen as clarifying the meaning of
reproduction in the context of the InfoSoc directive- which is merely the
infringement of a work protected by national copyright. Therefore it is up to
the member state to decide what is protectable and own intellectual
creation should be seen as nothing more than a minimum threshold.
This view seems premature; Meltwater is the first time a UK court has had
the opportunity to apply Infopaq and is awaiting appeal to the Supreme
Court, therefore the effect of Infopaq should not be discounted just yet.
Indeed Rosati believes that, despite Meltwater, the impact of Infopaq will be
deep and certainly affect low-creativity and technical subject matter[62].
This would be consistent with the persuasive argument offered by Derclaye
above, indeed Hobson stated that the court went astray in their application
of Infopaq[63]. Thus it is possible that as the case law develops the authors
own intellectual creation will subsume the labour skill and judgement
criteria in the UK.
Conclusion
In conclusion the European Union standard, although still very much in its
infancy, signals the beginning of the end for the labour, skill and judgement
criteria. Although some argue the EU standard has made little difference in
[1]
[2]
[3]
[4]
[5]
[6]
[7]
Ibid 554
Strahan, The Reporter and the Law of Copyright 26 Law Magazine and Review: A
Quarterly Review of Jurisprudence (5th series (1900/1901)) 35
[8]
[9]
[10]
[11]
[12]
Supra.10.608
[13]
Ibid.610
[14]
[15]
[16]
[18]
[20]
[21]
[22]
Dick.v.Yates (1881)18.Ch.D.90
[23]
Supra.17
[25]
G.A Cramp.&.Sons.Ltd.v.F.Smythson.Ltd.[1944]A.C.329
[26]
Macmillan.v.Cooper.(1924).50.TLR.1.86
[27]
Supra.24
[29]
7/11/2006
[30]
[31]
CA Paris, 4e ch., Mar. 21, 1989: 142 RIDA 333, 338-39 ("Harrap's" case)
[34]
[35] 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), 75-80
[36]
Supra 4
[37]
[39]
[40]
Supra.38
[41]Supra.35
[42] Draft.Model.provisions.for.Legislation.in.the.Field.of.Copyright.CE/MPC/I/2-II of Oct.20,1988,10.
[43] Reproduced in 1886-1986: Berne Convention Centenary (1986) at 179.
[45]
Ibid
Cran.Football.Dataco:.Fixture.lists.not.protected.by.Database.copyright Ent.L.R.2
012.23(5), 149-151
[49]
Minero,Did.the.Database.Directive.actually.harmonize.the.Database.Copyright?E.I.
P.R. 2012, 34(10),728-732
[50]
[51]Infopaq
[52]
Ibid.45
Vousden,Infopaq.and.the.Europeanisation.of.Copyright.Law.W.I.P.O.J..2010,1(2),1
97-210
[53]
[54] Rosati, Originality in a work, or a work of originality: the effects of the Infopaq decision E.I.P.R.
2011, 33(12), 746-755
[55] Derclaye, Infopaq International A/S v Danske Dagblades Forening (C-5/08): wonderful or
worrisome?E.I.P.R. 2010, 32(5)247-251
[56]
Supra 54
[59]
Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890
[60] Hoppner, Reproduction in part of online articles in the aftermath of Infopaq (C-5/08): Newspaper
Licensing Agency Ltd v Meltwater Holding BV.E.I.P.R.2011,33(5),331-333
[61]Copiepresse.SCRL.v.Google,.Court.of.First.Instance.of.Brussels.No.06/10.928/C.F
ebruary.13 2007
[62]
Supra.54
[63]
Stanganelli, Spreading the news online: A fine balance of copyright and freedom of
expression in news aggregation E.I.P.R. 2012, 34(11), 745-753
[64]
Bentley, http://ipkitten.blogspot.co.uk/2011/07/bently-slams-very-disappointingruling.html
[65]