Something for nothing? The standard of ‘originality’ in copyright law: The traditional common law approach (3/5)

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 originality1. 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 work2.

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 met3, provided the input is not trivial4. There is perhaps no better case to illustrate this than Walter v Lane5, 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 Newspapers6. Similarly in Ladbroke7, Lord Pearce found the only requirement of originality to be: “[that] the work should not be copied but should originate from the author”8.This minimalist standard is also to be found in New-Zealand9 and South Africa10.

The two main arguments in favour of this approach, according to Cornish and Llewelyn11, 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”12.

This critique was also cited and approved by Chief Justice McLachlin in the Canadian CCH case13.

BC Jockey Club v Standen14 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” involved15, 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 facts16.

As noted by Craig17, 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 progress18. In response to this, it has been suggested19 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 doctrines20, 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 itself21.

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 activity22.

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”23. As such, one may want to turn to other legal mechanisms for protection such as: (i) contractual confidentiality clauses; (ii) unfair competition rules24; (iii) trade secrets protection;  (iv) the tort of misappropriation; (v) sui generis legislation25.

One of the most effective sui generis protection systems is undoubtedly the European Database Directive26. 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 Convention27. It is, indeed, hard to reconcile such a standard with the term “intellectual creation”28.

  1. See for eg. Jeweler’s Circular Publishing Co., 281 F. at 88 []
  2. HUGHES, J. 1988. The Philosophy of Intellectual Property. Georgetown Law Journal. 77 (1988), at 6-28 []
  3. See Ladbroke v William Hill [1964] 1 All ER at 465; LADDIE, H, PRESCOTT, P, VICTORIA, M. 1995. The Modern Law of Copyright and Designs. 2nd ed. London: Butterworths. at 46; BAINBRIDGE, D. 2002. Intellectual Property. 5th ed. London: Longman. at 36 []
  4. Redwood Music v Chappell [1982] RPC 109 at 115 []
  5. Walter v Lane (1903) All ER Rep Ext 1666 []
  6. Express Newspapers v News (U.K.) Ltd. [1990] 1 W.L.R. 1320 at 365-366 []
  7. Ladbroke v William Hill [1964] 1 All ER []
  8. Ibid. at 291; but see Interlego AG v Tyco Industries Inc [1989] AC 217 (mere copying of drawings) []
  9. The University of Waikato v Benchmarking Services Ltd. (2004) 8 N.Z.B.L.C. 101. []
  10. Econostat (Pty) Ltd v Lambrecht 89 JOC (W); Klep Valves (Pty) Ltd v Saunders Valve Co Ltd 1987 2 SA 1 (AD) []
  11. CORNISH & LLEWELYN. 2007. Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights. 6th ed. London: Sweet & Maxwell. at 422-425 []
  12. Feist at 353 []
  13. CCH (supra) at 23 []
  14. British Columbia Jockey Club v Standen (c.o.b. Winbar Publications) [1985], 22 D.L.R. (4th) 467 []
  15. Ibid. at 470 []
  16. CRAIG, C. 2007. Resisting Sweat and Refusing Feist- Rethinking Originality After CCH. UBC Law Review. 40 (1), at 84 []
  17. Ibid. at 85 []
  18. See CRAIG, C. 2002. Locke, Labour and Limiting the Author’s Right: A Warning against a Lockean Approach to Copyright Law. Queen’s Law Journal. 28 (1); LITMAN, J. 1990. The Public Domain. Emory Law Journal. 39, at 965-1023 []
  19. Per Linden JA in CCH Canadian Ltd. v Law Society of Upper Canada, (Federal Court of Appeal) [2002] 4 F.C. 213 para 59 []
  20. SENFTLEBEN, M. 2010. Bridging the Differences between Copyright’s Legal Traditions – The Emerging EC Fair Use Doctrine. Journal of the Copyright Society of the U.S.A. 57 (3), at 521; see also NLA v Meltwater [2011] EWCA Civ 890 []
  21. See Rosemont Enterprises, Inc. v Random House, Inc., 366 F.2d 303 at 310 cited in Feist (supra) at 354 []
  22. See LANDES, W & POSNER, R. 1989. An Economic Analysis of Copyright Law. Oxford Journal of Legal Studies. 18 (325) []
  23. HARIANI, K & HARIANI, A. 2011. Analyzing “Originality” in Copyright Law: Transcending Jurisdictional Disparity. IDEA: The Intellectual Property Law Review. 51 (3) at 510 []
  24. Copyright used as a substitute for unfair competition: Exxon v Exxon Insurance, [1982] R.P.C. 69 []
  25. See for eg: Collection of Information Anti-piracy bill –  H.R. 2652 (105th US congress) []
  26. Directive 96/9/EC of the European Parliament and of the Council on the legal protection of databases []
  27. RICKETSON & GINSBURG. 2005. International Copyright and Neighbouring Rights: The Berne Convention and beyond. 2nd ed. Oxford: Oxford University Press. para. 8.03 []
  28. See part II.; GERVAIS, D. 2004. The compatibility of the skill and labour originality standard with the Berne Convention and the TRIPs Agreement. European Intellectual Property Review. 26 (2), at 10 []