Something for nothing? The standard of ‘originality’ in copyright law: An elusive yet essential requirement (2/5)

This is part II 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.  International conventions and statutes

International copyright conventions do not provide us with a definition of ‘originality’, nor do they expressly provide for such a requirement. There are, however, a number of statements in diplomatic records that confirm that this requirement is present1 and was not included in the Berne Convention as it was considered to be evident2. The Convention does provide us with hints as to the scope of protection by stating that “encyclopedias and anthologies which, by reason of the selection and arrangement of their contents constitute intellectual creations [emphasis added] shall be protected as such”3, thus implying that this is the threshold for originality4.

The requirement of ‘originality’ is, however, to be found, in various forms, expressly in legislation across many jurisdictions5. Yet none of these statutes define the concept or the scope of ‘originality’. This is why judicial interpretation of the requirement of originality is so important and warrants close examination.

B. What ‘originality’ is not: distinguishing originality from ‘novelty’

A dictionary definition of ‘originality’6 may draw us towards parallels with ‘novelty’ in patent law7. This is misleading, as ‘originality’ must be distinguished from the requirement that the creation be an inventive step beyond the current state of the art.

1) ‘Independent creation’ as a common starting point

It is postulated that at its most basic level, originality may be rephrased as ‘origination’. As Peterson J expressed in University of London Press8: “[the only requirement is that the creation] should originate from the author”. Indeed, according to Mummery LJ, originality does not require: ‘novelty, usefulness, inventiveness, aesthetic merit, quality or value”9.

The work must, therefore, be composed independently by the author and need not involve anything ‘novel’. It is postulated that this first and most basic requirement is a common feature of most judicial interpretations of originality10.

2) Why assimilating originality to novelty would be undesirable

I would argue that such a high standard is undesirable and, in my opinion, would not provide a desirable alternative to the lower standards I shall examine in this series of posts.

In Bleinstein v Donalson11), the US Supreme Court had to decide whether certain lithographs prepared as advertisements were copyrightable. Justice Holmes, on behalf of the majority, stated:

“it would be a dangerous undertaking for persons trained only to the law to constitute themselves judges of the worth of the pictorial illustrations, outside of the narrowest and most obvious limits”12.

This is, I would argue, a valid concern which would render any such threshold to be inherently unfair. Certain commentators such as Reytblat, have attempted to address these concerns by advocating for juries to pronounce judgements of originality. Yet this solution is clearly unsatisfactory, as the author recognizes when she concedes that this would do no more than to “[provide] a modicum of objectivity”13.

  1. WIPO. 1986. 1886-1986: Berne Convention Centenary. Geneva: WIPO []
  2. WIPO. 1988. Draft Model provisions for Legislation in the Field of Copyright. Memorandum prepared for the WIPO Committee of Experts on Model Provisions for Legislation in the Field of Copyright, document CE/MPC/I/2-III of Oct. 20, 1988, at 10 []
  3. Art. 2(5) of the Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended in 1979, S. Treaty Doc. No. 99-27 (1986); See also Art. 10(2) of the Agreement on Trade-Related Aspects of Intellectual Property, Apr. 15, 1994, 33 I.L.M. 1125 []
  4. GERVAIS, D. 1998. La notion d’oeuvre dans la Convention de Berne et en droit comparé. Geneva: Librairie Droz. at 45-49 and 55-65 []
  5. Copyright, Designs and Patents Act 1988: Chapter 48 – s.1(1)(a); 17 U.S.C. § 101; Copyright Act, § 2 (2) (F.R.G.). []
  6. Concise Oxford Dictionary of Current English. 1982. 7th ed. Oxford: Oxford University Press, ‘original’ []
  7. See 35 U.S.C. § 102 (2006); See also Synthon BV v Smithkline Beecham plc [2005] UKHL 59 []
  8. University of London Press Ltd. v University Tutorial Press Ltd, (1916) 2 Ch 601 at 609-10 []
  9. Per Mummery LJ in Hyperion Records Ltd v Sawkins [2005] EWCA Civ 565 para 31 []
  10. Feist Publications Inc. v Rural Telephone Service Co. Inc., 499 US 340 (1991) at 345; 
CCH Canadian Ltd. v Law Society of Upper Canada, (2004) 1 S.C.R. 339, 2004 SCC at 25; University of London Press (supra); IceTV Pty Ltd. v Nine Network Australia Pty Ltd. (2009) ALR 386 para 48 []
  11. Bleinstein v Donaldson Lithographing Co., 188 U.S. 239, 250 (1903 []
  12. Ibid. at 251 []
  13. REYTBLAT, J. 1999.  Is Originality in Copyright Law a ‘Question of Law’ or a ‘Question of Fact?’: The Fact Solution. Cardozo Arts & Entertainment Law Journal. 17, at 196 []