Something for nothing? The standard of ‘originality’ in copyright law: Going beyond mere labour (4/5)

This is part IV 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 number of jurisdictions have, in order to avoid an overly expansive scope for copyright when the industriousness standard is applied, articulated a standard which requires an extra element beyond mere labour and the absence of copying.

A. “Creativity” or “judgement and skill”

In the United States, a number of federal courts included elements of creativity within the definition of originality1, whereas others applied the English industriousness test2. This uncertainty was resolved when the US Supreme Court held, in its Feist decision, that the former approach was to be followed3. Justice O’Connor stated that in order for a work to be considered ‘original’ it must not only be an independent creation, it must also show a “modicum of creativity”4. Is such a threshold too high?

This issue was looked at by the Canadian Supreme Court in 2004 in CCH5, where it found originality to require independent production involving skill and judgement.

In reaching its decision, the court considered the labour standard and found it to be ‘too low’ and as “[shifting] the balance […] too far in favour of the owner’s right, and [failing] to allow copyright to protect the public’s interest in maximizing the production and dissemination of intellectual works”6. It also considered the Feist test and rejected it as too ‘high’, wrongly assimilating it to a novelty or uniqueness requirement7.

The US approach can thus be seen to subsume the author’s private rights as a means to promote progress for the public benefit8. By contrast, the Canadian approach considers author’s rights to be a means to secure the public benefit, as well as an end in themselves9. It is submitted that the latter approach is preferable, providing a more nuanced framework in which to decide the desired level of protection.

The resulting tests bear close resemblance to the ‘creative choices’ doctrine espoused in several civil law jurisdictions.

B. Personal intellectual creation

1) The Civil Law approach

The traditional originality test in France and Germany fully embraces a subjective approach, based on a Hegelian philosophy, by requiring that the work express or reflect the author’s personality10). Indeed, the French Supreme Court decisively rejected a labour approach11. However, as a result of the difficulty in applying this standard to utilitarian works, the French courts developed a level of abstraction for the authorial test by finding the “choices and intellectual operations required to create [a bilingual dictionary]”12 to allow the resulting compilation to meet the threshold.

This test has been termed the “creative choices” standard by commentators13). At its core it requires that the author make choices that were neither guided by the format or function, nor mechanical. Such an approach has, to a certain extent, been adopted in a number of civil law jurisdictions including Switzerland14, the Netherlands15, and Belgium16.

2. Originality on the European level

The ECJ examined the issue of originality in its Infopaq17 case, where it held that the EU originality test (“author’s own intellectual creation”18 applies beyond the ‘works’ designated in a series of directives – namely computer programs19, photographs20, and databases21 – so as to encompass all categories of works under the Berne Convention into the European sphere.

The likely consequence of this decision is that a number of works under the more permissive English copyright regime, as seen above, will no longer attract protection22. This is to be welcomed and it is hoped that it will bring about a further departure from the minimalist English standard.

  1. Burrow-Giles Lithographic Co. v Sarony, 111 U.S. 53, 60 (1884); See also MEADE, T. 1994. Ex-Post Feist: Applications Of A Landmark Copyright Decision. Journal of Intellectual Property Law. 245 (2), at 245 []
  2. DOWD, J. 1992. A Selective View Of History: Feist Publications, Inc. v Rural Telephone Service Co. Boston College Law Review. 137, at 138-39 []
  3. Feist (supra) at 344-351 []
  4. Ibid. at 346; see also Part II []
  5. CCH (supra) []
  6. Ibid. at 24 []
  7. See Justice O’Connor in Feist (supra) at 345, 358 []
  8. Ibid. at 349 per Justice O’Connor, quoting the Constitution of the United States of America, Art I, §8, cl 8 []
  9. Théberge v Galerie d’Art du Petit Champlain Inc. [2002] 2 S.C.R. 336 paras 30-31 []
  10. GERVAIS, D. 2002. Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law. Journal of Copyright Society of the U.S.A., 49 (summer 2002) at 968; 
CA Paris, 1e ch., May 22, 1990, Légipresse 1990, I, at 67; 
Bundesgerichtshof [BGH] May 9, 1985, Entscheidungen des Bundesgerichtshofes in Zivilsachen [BGHZ] 94 (F.R.G. []
  11. Cass. 1e civ., May 2, 1989: JCP G 1990, II, 21392, note A. Lucas; RIDA 1/1990, at 309 []
  12. CA Paris, 4e ch., Mar. 21, 1989: 142 RIDA 333, 338-39 cited in GERVAIS at 969 []
  13. GERVAIS (supra) at 975; HARIANI & HARIANI (supra []
  14. Van Dale v Romme II, HR Apr. 1, 1993, IER 1993 (3) at 82 []
  15. GERVAIS (supra) at 969 citing BANNELET & EGLOFF in note 148 []
  16. Cass. civ. Apr. 27, 1989: R.W. 1989-90, at 362 []
  17. Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2009] ECDR 16 []
  18. Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of copyright and certain related rights, article 6) []
  19. Directive 2009/24/EC of the European Parliament and of the Council on the legal protection of computer programs []
  20. Duration directive []
  21. Database directive []
  22. Infopaq (supra) paras 33-37 []