This is part III of a series of blog posts looking at the concept of ‘originality’ in copyright law.
Go to: Introduction -> Part II -> Part III -> Part IV -> Conclusion
A. The Lockean inspired test of industriousness
The amount of work expended in the creation of a work is one of the criteria which some judges have used as a test for originality. This has been England’s traditional standard, drawing close analogies to Locke’s labour theory of ‘just desserts’, whereby the labourer deserves to be rewarded for his efforts in producing the work.
Under this standard, if a work is created through the labour of an individual, irrespective of any lack of creative input or of mere statement of facts, the originality threshold will be met, provided the input is not trivial. There is perhaps no better case to illustrate this than Walter v Lane, where copyright was found to have subsisted in the report of public speeches by Lord Rosebery. Shorthand notes had been taken by a reporter; they were then transcribed, revised and corrected before publication. The effort, skill and time expended by the writer was found to be sufficient for the work to be considered ‘original’.
This approach was confirmed as good law in Express Newspapers. Similarly in Ladbroke, Lord Pearce found the only requirement of originality to be: “[that] the work should not be copied but should originate from the author”.This minimalist standard is also to be found in New-Zealand and South Africa.
The two main arguments in favour of this approach, according to Cornish and Llewelyn, are (i) a maximal reduction in the scope of the subjective element/qualitative requirements in deciding what is to be protected, and (ii) the protection of labour and investment. As outlined in Part II, I believe that the first argument is a valid concern and, I will, therefore, look at its implications when examining higher thresholds in Part IV. I shall now address the second argument.
B. The problem with mere labour
1. The protection of facts and tipping the scales in favour of the ‘creator’
In Feist (See Part III), whilst rejecting this approach, the US Supreme Court exposed the following flaw in the labour standard:
“[this extends] protection in a compilation beyond selection and arrangement — the compiler’s original contributions — to the facts themselves [by adopting the] “sweat of the brow” [test] courts thereby eschewed the most fundamental axiom of copyright law — that no one may copyright facts or ideas”.
This critique was also cited and approved by Chief Justice McLachlin in the Canadian CCH case.
BC Jockey Club v Standen provides us with a useful illustration of the dangers inherent in the overreach of copyright into facts. In this case, the claimants produced a publication outlining information on horse racing to take place for the day ahead. This work was adopted by the defendants. It was, however, in a different format and included additions and comments. The Court of British Columbia, finding for the claimants, based its decision on the cost and the “painstaking labour” involved, thereby granting a ‘quasi-monopoly’ over the information at hand.
I use the term ‘quasi-monopoly’ since the information contained in this work is, theoretically at least, capable of being recorded, analysed and published by another, thereby circumventing liability. There are, however, situations where the possibility of independent discoverability is no more than a fiction, thus conferring this quasi-monopoly over facts.
As noted by Craig, this indirect grant of power over information runs contrary to fundamental values such as the free flow of knowledge and information into the public domain, thereby hindering social and scientific progress. In response to this, it has been suggested that the doctrines of ‘fair use/dealing’ may be used to temper the effect of a low labour-based threshold. In light of the narrow construction of these doctrines, I remain unconvinced by this argument.
Secondly, by requiring each author to independently discover the facts, this approach results in a duplication of effort, without providing any benefit to society nor adding any value to the work itself.
It is conceded that an economic argument may be deployed to the effect that exclusivity should be granted over the collection of some information in order to encourage what may be a desirable activity.
In any case, if such an argument were to hold sway it may be addressed by considering alternative means of protection.
2. The availability of alternative means of protection
As Hariani & Hariani convincingly argue, “it is not the mandate of copyright to protect all effort”. As such, one may want to turn to other legal mechanisms for protection such as: (i) contractual confidentiality clauses; (ii) unfair competition rules; (iii) trade secrets protection; (iv) the tort of misappropriation; (v) sui generis legislation.
One of the most effective sui generis protection systems is undoubtedly the European Database Directive. This directive introduces a dual-layer system, under which any original form of presentation or selection of data is covered by copyright, while the data itself is granted sui generis protection.
This leads us to the conclusion that a low threshold for originality cannot be justified on the basis alone that the creations, that would be excluded from a potentially higher threshold, would be without any protection at all.
3. A departure from the spirit of international law?
Furthermore, it may be argued that granting creations the status of ‘work’ on the basis of labour alone, goes against the spirit, if not the letter, of the Berne Convention. It is, indeed, hard to reconcile such a standard with the term “intellectual creation”.