This is the conclusion to a series of blog posts looking at the concept of ‘originality’ in copyright law.
To conclude this discussion, I shall briefly return to the seminal case of Walter v Lane. The judgements of their Lordships aptly illustrate the three main divergent theoretical underpinnings that any articulation of an originality standard must wrestle with: the value of labour1, the public interest2, and the concept of authorship3. In this series of posts, I have argued that a conception of ‘originality’ based on labour alone, as it currently stands in a number of common law jurisdictions – such as England and Wales – is inadequate due to its impact on the public domain, the fact that it tilts the balance too far in favour of the ‘creator’, and the availability of alternative means of protection. I have also considered the public interest approach, which informs the US & Canadian cases, whereby the label ‘original’ is granted, at least partly, on the basis of the public interest in protecting such works and not solely on the basis of effort or authorial input. Finally, I have considered the civil law and EU approach which seeks genuine authorship, although, as we have seen, this approach has been somewhat tempered.
It has also been observed that there has been a departure from the labour standard in a number of Commonwealth jurisdictions4, and some convergence globally towards a standard based on creative choices, which is perhaps more in line with the spirit of the Berne Convention5.
While I have argued vigorously against a low standard based on labour alone, and would endorse a standard such as the one presented in the CCH case, which espouses both the public interest and the author’s rights, it must be emphasised that originality is only a gateway, and that the infringement stage may also be used as a means to flesh out a thinner level of protection for utilitarian works.
- See Earl of Halsbury in Walter v Lane (supra) at 547 and Lord Davey at 552 [↩]
- See Lord Brampton at 559, ibid. [↩]
- See Lord Robertson at 562 and Lord James at 553, ibid. [↩]
- Canada: see Part III; Australia: IceTV Pty Limited v Nine Network Australia Pty Limited (2009) ALR 386 paras 343-344; India: Eastern Book Company v D.B. Modak, (2008) 1 SCC 1 at 59-64 [↩]
- RICKETSON & GINSBURG (supra); GERVAIS, D (supra) [↩]