Something for nothing? The standard of ‘originality’ in copyright law (1/5)

This is part I 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

“[T]o make the copyright turnstile revolve, the author should have to deposit more than a penny in the box.”1 

The standard of originality is one of the key determinants of the subsistence of copyright, and thus reflects the policy concerns which guide each jurisdiction’s copyright regime. For traditional forms of expression (such as novels, sculptures or plays) this standard is typically not an issue, as these are likely to satisfy even the most stringent of tests. As will become apparent throughout these posts, it does, however, matter with regards to the subsistence of copyright in more utilitarian works, such as factual compilations.

This series of blog posts will demonstrate that while there are different standards of originality, there is a growing convergence towards a standard based on “creative choices”. Whilst this standard often invites a balancing of both the public interest and those of creators, it shall be shown that this is not the case of the traditional labour based common law standard, which is thus low and inadequate.

To do so I shall first seek a definition of ‘originality’ by looking at international conventions and statutes, before settling on a common starting point based on ‘origination’ (part II). I shall then look at the traditional common law labour approach to originality and expose why it is inadequate (part III). Finally, I shall examine existing alternative standards and show that there is a growing convergence globally towards a similar comparatively higher standard (part IV).

  1. KAPLAN, B. 1967. An Unhurried View of Copyright. New-York: Columbia University Press. at 46 []