Copy Right - Originality
• Other Derivative Works
Works based on pre-existing works. Eg: the second edition of a textbook, which is essentially a copy of the first but with some updates or revision. The Q in deciding whether a derivate work is original is deciding whether the author has expended enough additional skill labour or judgment to render that derivative work an original one
Macmillan v Cooper
• Derivative work must have some quality or character which the raw material did not possess or which differentiates the product from the raw material; Macmillan v Cooper
• SAS Institute Inc v World Programming Limited [2013] EWCA Civ 1482
A computer program can be protected by copyright; however, on the facts of the case, there was no infringement of copyright, because what had been replicated were the functions of the computer program, and the functionality of a computer program cannot be protected by copyright, because it is not the author's own intellectual creation; SAS Institute v World Programming Ltd, Court of Appeal If infopaq changed the test it raised it rather than lower it Question !!!Can you reverse engineer a computer programme.
BSA
A graphic user interface is capable of copyright protection, if it was the author's own intellectual creation, separate and distinct from any technical considerations. If content is simply dictated by functional or technical considerations, then there is a lack of creative choice, and content cannot be deemed original UK- not a category • Gervais argues that a creative choice is one made by the author that is not dictated by the function of the work, method, or technique used, or by applicable standards of relevant good practice. Purely arbitrary or insignificant selection is insufficient.
• Football Dataco v Yahoo! UK Ltd Case C-604/10, [2012] 2 CMLR (24) 703
A selection or arrangement must express author's creativity, i.e., she must have stamped her own personal touch on the arrangement. Thus, football fixtures are likely not intellectual creations, because the large number of rules involved in football constrain choice severely; Football Dataco, CJEU There is a common harmonised intellectual creation across all categories Facts - Football fixture lists - Rules o No club should have 3 consecutive home or away matches o No more than 4 home or away matches - Request o Day or time off play o 200 requests made throughout the year Court - Is the selction of the information- expressing their creativity - They say you can't have an intellectual creation if rules are dictated without no scope for creativity - By obeying all those rules and requests- no room for creativity - The effort in creating the data not relevant - Choice in pre - epressive choices- we don't know how much they can count - The effort is about arranging and selecting the information Contrast with Ladbroke
Redwood Music v Chappell
Copyright may subsist in a derivative authorial work, even though that work might, itself, be infringing copyright;
• Cases C-403/08 and C-429/08 Football Association Premier League Ltd v QC Leisure and Karen Murphy v Media Protection Services, [2012] 1 CMLR (29) 769
Could a football match be a cR- constrained by rules of game- Football matches are not intellectual creations, because games are dictated by rules, and there is therefore no requisite creativity; FAPL, CJEU UK- FB match not dramatic work - doesn't fit in unity
Meltwater V NLA Effect of infopaq
In Meltwater - media monitoring company- extracts fo articles being reproduced. v NLA, Sir Andrew Morritt held that Infopaq test was limited to origin and did not qualify the English test. However, he held that newspaper titles are capable of being original. • Thus, although the British courts have traditionally been reluctant to protect titles, slogans, and short phrases as literary works, clearly attitudes are changing as a result of Infopaq. There is also less reliance now on the categories. • However, descriptive short titles, such as The Lawyer's Diary, remain unprotected (Rose v Information Services)
Interlego V tyco
The case of Interlego v Tyco concerned drawings of lego blocks that had once been patented, but patent protection had since expired. Lego arranged for the blocks to be redrawn and certain, very minor changes were made to the design and technical specifications. Tyco produced similar blocks, and Lego argued that copyright of the new drawings had been infringed. The House of Lords held that skill and labor in merely copying the old drawings into the new drawings is not the right kind of skill and labor for copyright to arise. There is no copyright in merely tracing; what is required is some material alteration or embellishment. This needs to be visually significant.
Eva-Maria Painer v Standard Verlags GmbH, [2012] ECDR 6 (see especially paras. [87]-[94])
Used both again The intellectual creation test is applied for subsistence of copyright; Painer, CJEU
EU test
- Expressing free and creative choices- such that personal touch - eg. Painer angle and lighting - Expressed authors personality - Choices - How high is the standard- probably quite low- 11 words might be a intellectual creation if the author can express personality - How many choices must be available- - When there is no choice at all the work will not be an intellectual creation- eg. Football match , graphic user interface - What sorts of choices- SAS o The essence of the term - the person in question provides expressive and creative o Conscious human decision ? artistic? o Not enough for primarily commercial decisions o - Higher test - merely different ? - All of the views are open there is no correct answer this question-
Post infopaq
- walter and lane is it good law 1) Work that is the product of mere labour and effort- sweat of the brow Doesn't satisfy intellectual creation test Anyone doing the same work won't come up with the same thing- eg. Little wood It's about outcomes 2) Creatitivity goes into creativity of functions and datas Football datacode Vs Ladbroke Efforts to creation 3) What about if its contribution of the wrong kind Interlego- not enough space for creative choice 4) Deminimus work- titles- infopaq - one word in isolation is not an intellectual creation Mere skill not enough- football database Pre Expressive enough for originality- coming up with football data code - painer counted the process s Sweat of the brow - OVER!!! Even if it was part of the UK law it's not longer part of the UK law because of the implementation of database directive- preference of database and compilation. Broad definition of database - when it comes to a database- s3a2) originality is authors own intellectual creation!!! Compilations and tables always databases- databases always have to be intellectual creation.
o *Case C-145/10 Eva-Maria Painer v Standard VerlagsGmbH, [2012] ECDR 6 (see especially paras. [87]-[94])
A photograph can be the author's own intellectual creation, if it is a result of the free and creative choices of the photographer. The question here is whether the photographer was able to stamp her personal touch on the work through the techniques which she utilized; -- Portrait of child- sold but retained the photograph copyright The child was later abducted Police used the photograph to search for her Then she was found- first public appearance anticipated News paper made a comparison of old portrait and adaptation of what she would look like today Intellectual creation Expresses personality- lots of choices through the whole creative process- framing angle, atmosphere Subject , snap shot, personal touch
o Cramp v Smythson [1944] AC 329 (HL) -
An employee of this company went to work for a rival company making pocket diaries too, and copied a selection of 7 tables from the original company's pocket diary. pocket diaries with tables eg. Set times of sun dials - there's no room for taste and judgement each time you reproduce it'll be the same accurate info - not original / selection of tables and order - ordinary stock of material that any compiler would look at - small amount of labour and judgement.
Literary, Dramatic, Musical & Artistic works must be original - s1(1) CDPA s1(1) CDPA: s1(1) "Copyright is a property right which subsists in accordance with this Part in the following descriptions of work: original literary, dramatic, musical or artistic works
Authorial - originality- prevented from being recreated - content E- not copied- exactly reproduced for infringement - signal most important requirement that must be satisfied for copyright protection to arise in LDMA is originality
o Football League v Littlewood Pools [1959] Ch 637
Copyright subsists in club's fixtures list because of skill, labour, time, judgment and ingenuity in its creation. Copyright also subsists in chronological list because of painstaking hard work in reproduction of club's fixture list. There is no copyright of information- that is an idea. But there can be copyright in the selection and arrangement of this information, if sufficient skill and labour has gone into it.
scholars
Higher test- requires creativity/ they think the wording of the test echo's continental jurisdictions who rely on personality based rules rather than just effort or skill. Derbacht- says it's an revolution Normative view on what is protectables- how far it extends and merits it No change- meltwater- andreas If you look at the cases from the CJ they are talking about creative choice- encapsulated in making judgement- making choice. Minor tweaking SK AND J in stead or Or J Shift in focus of time and skill to personal vision of the creator and their creative choices The closed categories of the work might no longer be relevant The categories might be relevant because it shows what kinds of creative choices count = personal speculation
REporter's Copyright
Historically a controversial area - there is a possibility that there might be two copyrights there: in the words spoken (as a literary work owned by the people speaking them), in the report of those words (owned by the person who did the copying). This dates all the way back to Walter v Lane. There is also the question of to what extent reporters copyright survives Infopaq. This is something to think about; there are no cases to tell us. But this is one area that may have changed. Reporter's copyright is a difficult area when it comes to copyright subsistence.
BUMP- only intellectual creation
IC
Levola
Intellectual creation as a autonomous standard across Europe
The basic originality standard in the UK
O relatively low standard Flexible legal test =uncertainty O tells us something about origin - original painting not reprint. Does it originate from the author.- relationship between an author or creator and the work Not about novelty or creativity
Sweat of the brow
Old Railway timetable - back in the time these would have taken an extraordinary amount of effort to put together an accurate and helpful railway timetable. This might be considered socially valuable, and you might want an incentive to help encourage these things.
• University of London Press v University Tutorial Press [1916] 2 Ch 601
Peterson J: 1. the work must originate from the person claiming to be the author 2. the work must not have been 'slavishly' copied suggests that you can draw inspiration from something, or based on something else - just cannot be 'slavishly' copied. This is why the threshold is very low. 3. There is no requirement of novelty, inventiveness or aesthetic merit.- Instead for originality to be made, the work must be a product of the author's skill, labor, and judgment; ---- Low test- exam papers original even though they were drawn from stock of previous exams, stock of maths knowledge and produced quickly ?
o ZYX Music v King [1995] 3 All ER 1, [1997] 2 All ER 129
The fact that you have an infringing work does not mean you cannot have a copyright in the infringed work. This was established in ZYX Music v King. Q of whether there is originality in the derivative work from the Q of whether this derivative work infringes the primary work. These are 2 separate questions
o *Temple Island Collections Ltd v New English Teas Ltd [2012] FSR 9
There was an argument that the claimant's photograph could not be original because it was a visual cliché of London icons. Justice Birss QC held that this was incorrect, because there's potential originality in the angle of the shot, the lightning techniques, and the shade, exposure, and effects captured in the photograph. Furthermore, originality can be found in the creation of the scene photographed. Additionally, originality may derive from being in the right place at the right time; Choices to manipulate - 80 hours of work Iconic place - doesn't mean it can't be captured originally 1)aspects in receding gin how you take shot 2) subject matter 3)right place at right time - UFO 2 and 3 together fine 3 unclear of that is enough
US- swaet of the brow- FEIST
an alphabetical arrangement in a telephone directory was not original, bc it merely req effort and no creativity low but need a small amount of creativity
SLJ
author's contribution that doesn't require inventiveness. Investment time knowledge, taste, experience. Not fixed test but helpful shorthand.
Subsequent Lower courts- apply both tests
both tests UK and EU
New direction
infopaq- Infopaq was a media monitoring which summarized stories from Dutch newspapers. The software utilized would reproduce key headlines in eleven words through scanning the newspapers. A Dutch company sought to impose a licensing fee on Infopaq. The Court of Justice held that there is a harmonized standard of originality that the work is the author's own intellectual creation. The CJEU stated that if the choice or arrangement of the eleven words demonstrated the author's creativity, then those eleven words may constitute an intellectual creation;
REstoration painting
o o The first painting is called Ecce Homo (Behold the Man) which was a 19th century fresco in the Sanctuary of Mercy church in Borja, Spain. This painting had degraded over time, so it looked like the middle image. An elderly artist and a member of the congregation, Cecilia Jiménez, decided that she wanted to restore it. She tried to restore it, and botched it somewhat (as seen in the first image). This was called Ecce Mono (Behold the Monkey). This is not a great restoration. o But following the reasoning in Interlego there is certainly a material alteration to the original painting. By this reasoning, Cecilia Jiménez gets a copyright in this new version of the painting, whereas someone who had accurately restored it to how it was before would not get any kind of copyright. o Does this endpoint make sense? How does it relate to what copyright should be doing? How is this reasoning different from Walter v Lane? There might be other incentives that apply. Incentives might not be the only rationale. There also seems to be an issue with allowing copyright where there is only copying. For the conceptual coherence of copyright scheme it might be different to work out where to draw the boundaries. If something is purely an exact reproduction can have copyright in it, it would be difficult to figure out when something would be infringing. And policy reasons might change over time, leading to a great degree of uncertainty. So there is a rationale too, but there are some interesting consequences on restorations and the incentives involved there. • It also has some interesting implications with regard to aesthetic judgment. So if you ask for a material alteration, this seems like an aesthetically neutral test - you are just looking for some kind of change. Whereas if you are looking for something is socially valuable, you then have to assess the merit of the work, which is something that judges are reticent to do in the context of copyright generally. But there have been some situations where restorations, and trying to adhere to someone else's vision faithfully, has resulted in copyright subsisting.
wHich stage in the creative process is relevant Ladbroke V William Hill
o "the word 'original' does not demand original or inventive thought, but only that the work should not be copied but should originate from the author" o - artificial to divide pre-expressive and expressive labour o - you can gain copyright from the selection and arrangement of material ladbroke stole william hills betting coupons and tried to split up the creative process to intelligiable part and then just mere putting together the coupon. • Lord Reed disagreed. He held that it was artificial to divide up the creative process into pre-expressive and expressive stages. Rather, the court took a comprehensive approach to the creative process and in this case there was clearly enough skill labour and judgment when you considered the process altogether. • Significance: It is important to note this comprehensive approach to the creative process. BUT there is some authority to suggest that the ECJ does not see the creative process in the same way as the UK court did in this case. See below.
Express News papers V News
o Affirms Walter v Lane as good law. - Quotes taken down can be protected by copyright, if there is sufficient skill, labor, and judgment. In this case, the skill and labor involved was immense, as the interviews conducted by the claimant newspaper, which the defendant newspaper subsequently used in its report, had taken a long time and there is additional skill in determining how an interview ought to be conducted; Concerned Journal article that a) Rewording - This makes sense when we talk about the idea/expression dichotomy. Any newspaper should be able to report on facts and news. It makes sense that you should be able to copy this. So there was no infringement of the articles by rewording them • Copied quotes - that Walter v Lane is undeniably good law - you can get reporters copyright in reporting the spoken words of another, as long as skill labour and judgment was involved in this reporting. In this case there was clearly SLJ involved. Taking the interview with Marina Ogilvy as an example, this interview lasted over 8.5h and in this case the court thought that the skills of the reporter than the case in the Times reporters reporting the words of Lord Rosebery. Bc it also involved working out how to conduct the interview, and selecting and arranging the particular quotes to go in the article. So there is a diff here in the sense that it is not just about skill and labour in the mechanical recording, but also about the selection and arrangement of those quotes.
Hyperion Records V Sawkins Performance notes made to the original musical work by the claimant constituted the necessary skill, labor, and judgment for the work to be deemed original;
o Dr Sawkin's work had "the practical value of making Lalande's work playable. Dr Sawkins recreated Lalande's work using a considerable amount of personal judgment so as to create something really new using his own original (and not merely copied) work" 1- Sufficient SLJ- Very few people could do this sort of work; it was a highly skilled task; it took a very long time. And it was certainly not slavishly copying 2- Not a misappropriation of work =bc Dr Sawkins had imparted to the raw material some kind of quality that this material did not originally possess. He had made something different using a considerable amount of personal judgment. 3- Category argument maybe not relevant any more- that music was not limited to notes. It was anything that affected the musical character and playability of the work. And performing indications clearly affected the musical character of a musical work 4- Court here also assumed that Walter v Lane is good law. This is another authority for the fact that we can still rely on Walter v Lane. 5- There was nothing preventing people going back to the original Lalande manuscripts and coming up with their own performing additions. The only thing you could not do was to appropriate the SLJ added by Dr Sawkins. From this we also glean the traditional UK approach that the scope of the copyright is limited to what you add; limited to the originality you add.
photographs-
o When photographing three-dimensional objects, there is skill, labor, and judgment that goes into framing and taking those photographs in order to ensure the most favorable images are captured. The claimant's photographs were thus held to be necessarily original; -- Website made with the photographs from somewhere else
walter and lane
the claimant journalist composed reports on speeches given by Lord Roseberry, and the defendant used the reports in a book on Lord Roseberry's speeches. The House of Lords held that the reports are protected by copyright and made a distinction between the author of the speeches and the author of the reports. The reports were owned by the reporters. A reporter who attends a speech given by someone and who takes down verbatim everything that they say is exercising the requisite skill, labor, and judgment in formulating their report. ----- This case was about verbatim written work of Lord Rosebury's speech. That was published in the Times. Later the defendant made a book out of the reports published in the Times The only question the HL was asked to consider was whether the Times reporters owned copyright in their reports of his speeches, which could then be infringed when reproduced in the book Maj of the HL there was copyright on an potentially outdated analysis about the skill required to record verbatim a speech- skill on inserting punctuation and processes quickly. Not merely fixating the words of another like a clerk. This was something socially valuable that we might want to incentivise the fact that they were able to take these very accurate reports.- ---------------------------- o (v) Essentially the problem with reporters' copyright in Walter v Lane is that it appears to confuse the fixation of the work (the recording of the work) with its expression - the intangible property that is protected by copyright. Walter v Lane seems to confuse the two. Because generally speaking you cannot get copyright in something because of the labour in fixing it. you need to add something of your own, if not it is just slavishly copying. This is the problem with reporters' copyright. Problems now - Digital age - Shouldn't be engaging with Policy - It is also quite worrying because it depends on certain views of the justification of copyright protection. As we have seen in CDPA, the legislature has not seen fit to spell out exactly what are the rationales for copyright law that are considered to be most dominant. There is a controversy about whether this is the right way to proceed. - New law - so this not really relevant - question about authorship instead Express News Papers V News Says walter and lane in still good law.
Macmillan v Cooper
• Derivative work must have some quality or character which the raw material did not possess or which differentiates the product from the raw material;
Purpose of the originality requirement:
• Natural rights perspective: requirement of originality reflects premise that copyright ought to protect the personality of authors as expressed in their works. Absent originality, there is no justification for protection. • Rewards perspective: Where effort has been made in creating a work, the creator may be said to deserve some protection from the exploitation of that effort by another. • Utilitarian perspective: Originality threshold helps ensure that copyright protects only those works that would not have been produced, but for the incentive provided by copyright protection.
