CONCEPT OF ORIGINALITY

“What is originality? To see something that is yet without a name, that yet is impossible
to designate, even though it stares you in the eye”
Friedrich Nietzsche

Introduction: What is originality?

Originality is the both question and the answer in the sense of defining the scope of
copyright protection. It is the answer because without any doubt originality is the basic
and essential prerequisite to obtain a copyright protection whether it is a novel or a
computer program seeking for a legal shelter. But the difficulty lies in the definition of
originality; the notions of originality are not only abstract to able to define in legal terms
but also too subjective to determine the scope the protection. So the answer becomes the
question here: “What is originality?”

The New Oxford American Dictionary1 defines originality as “the ability of thinking
independently and creatively” and “the quality of being novel or unusual” and which
mostly clings originality to the concept of “creativity”. As stated above, such abstract
terms as “creativity” and “unusualness” are too subjective for a law-based definition, so
throughout the years jurists tried to find an objective definitions concerning the originality.

Basic Approaches To Originality

One of the first and basic definitions of originality regarding the copyright protection was
made through the University of London Press Case2 by J. Peterson: “The word original
does not in this connection mean that the 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. The originality which is required relates to the expression of
thought. But the act doesn’t require that the expression must be in an original or novel
form, but that the work must not be copied from another work- that it must originate from
the author.” Later on this “originate from the author” approach has become a standard in
the process of judicial determination whether a work is copyrightable or not.

Another significant approach regarding the originality is so called “UK Approach” which
is based on skill, judgement and labour together with the originated from the author
requirement3.

In French tradition, the author’s right is founded on the link between the author and the
work emanating from his mind the concept of originality developed from jurisprudence
and doctrine. The classic French theory is that “the work when original ‘bears the mark of
the personality of its author and confers on the created object a specific aspect”4 Unlike
the UK approach which gives a broader and tangible definition regarding the contribution

1
The New Oxford American Dictionary, Second Edition, Erin McKean (Editor), 2096 pages, May 2005,
Oxford University Press
2
University of London Press Ltd v. University Tutorial Press Ltd (1916) 2 Ch.601
3
UK 1988 Act
4
Sterling, J.A.L, “World Copyright Law”, London : Sweet & Maxwell, 2003, p.293
of the author, the French theory of originality seemed abstract. When problems arose with
productions such as computer programs, the Cour de Cassation tried to solve the conflicts
by accepting the criterion of “intellectual contribution” instead of “mark of personality”. 5

International Instruments

a) EU

In order to harmonise copyright protection in EU countries and set a common level of

originality requirement in several aspects of copyright law, European Union set some
Directives which are mainly based on the “authors’ own intellectual creation” criteria. 6

b) Berne Convention:

The Berne Convention does not require as a condition of protection, that a work should be
original. But however it is generally accepted that a work must be classified a fulfilling
criterion of originality or creativity in order to fall within the categories of production
which are within the scope of the Convention (7)

The Idea/Expression Dichotomy

The idea/expression concept, which basically means the idea of the author is not protected,
it is the expression of the idea that is protected, was developed by the US jurisprudence.
The US Act Section 102(b) provides that:

“In no case does the copyright protection for an original work of authorship extend to any
idea, procedure, process, system, method or operation, concept, principle, or discovery,
regardless of the form in which it is described, explained, illustrated,or embodied in such
work.

And as stated in the famous Harper&Row case7: “No author may copyright facts or ideas.
The copyright is limited to those aspects of work- termed expression- that display the
stamp of author’s originality.

In Europe, the the dichotomy become the subject of protection in 1990s and is recognised
in TRIPS Agreement 8as:
“Copyright protection shall extend to expressions and not to ideas, procedures, methods of
operation or mathematical concepts as such”

And article 2 of the WIPO Copyright Treaty recognises the concept, in the same terms as
TRIPS Agreement.

5
Babolat Maillot Witt v. Pachot, Cass March 7, 1986: (1986) 129 R.I.D.A 130
6
Directive 91/250, Directive 93/98, Directive 96/9
7
Harper & Row, Publishers, Inc v. Nation Enterprises 471 U.S 539, 556 (1985)
8
TRIPS Agreement Article 9(2)