test for originality in uk copyright lawstricklin-king obituaries

Footnote 16 and Football Dataco, having been references for a preliminary ruling in relation to the Directives on computer programs and databases and in relation to the Information Society Directive,Footnote 17 made important pronouncements as to the interpretation of the originality requirement in the context of these Directives. In order to qualify for copyright protection a work must be 'original', in the legal sense that it is In contrast to Meltwater, one cannot regard the classical English cases on originality without any qualifications at all after Infopaq and the subsequent cases of the CJEU,Footnote 183 but it is also overstated to declare them as overruled altogether.Footnote 184 Furthermore, one can imagine what would happen if an EU copyright code were enacted.Footnote 185 The whole development of the gradual incorporation or transplantation of EU originality rules, as shown before, would repeat itself, unless this process were already completed and the originality rule in a future comprehensive EU Copyright Directive would only be a restatement of the status quo. The process for the preparation of the football fixture lists was not purely mechanistic or deterministic; there was rather much skill and labour involved. In: Wood AW (ed), Nisbet HB (trans). Both cases decided that point at interlocutory stage only. This illustration of artificial intelligence has in fact been generated by AI. Highly personal choice is not required; the selection only has to be the result of thoughtful evaluation and choice.Footnote 76 Furthermore, if one looks at UK copyright law, one realises that the minimum threshold of originality seems to depend on the type of work, and a clear distinction between quantitative and qualitative labour that has to go into the work to turn it original cannot be made out.Footnote 77 So the originality concept is not consistent within UK copyright law itselfunderstandably, because different types of works require an individual application of general principles. Andreas Rahmatian. 267 (ex 234) TEU; see 2nd edn. It is only likely that the level of required originality has been lifted up slightly by the CJEU in a US Feist-like manner, provided we can ascertain, for the purpose of comparison, a chief originality threshold in traditional UK copyright law in the first place. One can test this hypothesis by looking at the understanding of originality in copyright, and particularly the own intellectual creation formula in the EU Directives for the definition of originality in the respective national laws. Hale (1971), p. 311. Second, it If the CJEU wanted to interpret the term own intellectual creation as a new autonomous originality criterion harmonised throughout the EU and for copyright in general, not only for specific types of work,Footnote 56 this could affect the originality requirements of both the copyright and the authors rights countries.Footnote 57 There is good reason to believe that the criterion own intellectual creation is neither a copyright Common Law nor a droit dauteur Civil Law term of art, but something different from both. Certainly until 2009, when Infopaq was decided, and possibly until 2012, when the CJEU handed down its decision in Football Dataco, the unanimous opinion was that in the UK a work is original for copyright purposes if it is the result of its authors own skill, labour, judgment and effort. STEP 2: INTERPRETATION (Authority, EU standard) STEP 3: APPLICATION. This report highlights the main UK copyright decisions in 2021. Lucas and Lucas (2006), p. 7879; Vivant and Bruguire (2009), p. 179; Loewenheim in: Schricker and Loewenheim (2010), Sec. 95 (mere films, Laufbilder); Rehbinder (2010), p. 118. (Recital 16 was Recital 17 in the preceding Term Directive 93/98/EEC.) However, one can argue that the existing Information Society Directive (Directive 2001/29/EC) leaves the door open for a more extensive application to copyright in general, see the Recitals 4, 7 and 9, and Art. The statement in paras. In Pachot, the Court reinterpreted the classical formula of originalitylempreinte de la personnalit de lauteuras la marque dun apport intellectual de lauteur (a mark of intellectual contribution of the author).Footnote 156 The subjective aspect of personality of the author reflected in the work (in the sense of Flauberts Madame Bovary, cest moi) has been replaced by the objective idea of intellectual input of a person: it is effectively the choice, selection and arrangement of a person that makes the work original, not the specific nature of the authors personality that has shaped and individualised the work.Footnote 157 That applies to all works (at least where they are covered by the Directives). UK: Independent Television Publications Ltd. v. Time Out Ltd. [1984] FSR 64; Football League Ltd v. Littlewoods Pools Ltd. [1959] Ch. A proper definition of the originality criterion of own intellectual creation has not yet been given, only approximations to this term have been attempted so far. Infopaq International v. Danske Dagblades Forening [2009] ECDR 16 (Case C-5/08). For a discussion why this analysis is arguably correct but why Walter v. Lane does not add anything new to the definition of originality in UK copyright law, see Rahmatian (2009), p. 579580. Loewenheim in: Loewenheim and Schricker (2010), Sec. Lucas and Lucas (2006), p. 343; Germany: Rehbinder (2010), p. 1617, 157158; Rigamonti (2006), p. 355356. France: Lucas and Lucas (2006), p. 78, 80; Germany: Rehbinder (2010), p. 31, 69; Loewenheim in Schricker and Loewenheim (2010), Sec. This interpretation certainly complies with the CJEU rulings.Footnote 198 One could restate the originality requirement in UK copyright law in the following way: a creation is protected by copyright if it constitutes an original work that is recorded in some permanent form. Only if the natural person of the author were at the centre of protection (and the work and its economic exploitation were notionallyFootnote 107 incidental to the authors personality protection), the UK would be a droit dauteur country. 2(a) of the Information Society Directive (protection of authors regarding the reproduction of their work).Footnote 33, The latest step in this development is the Football Dataco decision.Footnote 34 The case concerned a reference for a preliminary ruling on the interpretation of the Database Directive, especially, whether the notion of the authors own intellectual creation in Art. May (1994), p. 7374; Rahmatian (2011), p. 160163, with further references. 1(a) original literary, dramatic, musical or artistic works (emphasis added). Section2(1)(5) German Copyright Act 1965. Furthermore, the individuality and personality of a human being that is to reflect in his/her work, can arguably not be simplified to just an ability to make (perhaps informed and educated) choices; this is a reductive economic market model of humans as mere producers and consumers, but it may well be part of the mind-set of EU institutions, including the CJEU. 2(5) and (8) assumes that the protection of literary and artistic works presupposed such works as intellectual creations.Footnote 52 But that means that the classical British skill and labour originality would be compatible, because the Berne Convention was not, and was never supposed to be, understood in such a way so as to exclude Berne membership of the UK and other countries with skill and labour originality.Footnote 53 So an argument founded on the Berne Convention is of no assistance, nor is, as such, the invocation of the principle of the impetus in the EU towards a harmonised legal framework for copyright as a legal basis for a harmonised originality requirement.Footnote 54 It is well known that, because of the different nature of copyright works and the inevitable unpredictability of case law, the originality requirements are not even consistent or harmonised within one copyright jurisdiction, and probably will never be.Footnote 55 Finally, the term own intellectual creation, which the respective Directives use, and which the CJEU seeks to deploy as perhaps a general basis for the understanding of originality in copyright across the EU, is a label that means little without an underlying body of grown case law. Derclaye (2010), p. 247251. See discussion and examples in Legrand (1997a), p. 4750. Oxford University Press, Oxford, Binctin N (2010) Droit de la proprit intellectuelle. volume44,pages 434 (2013)Cite this article. However, most of the restoration cases within the visual arts do come from the authors rights countries France and Italy. Therefore, even if, notionally, the originality threshold has been raised slightly in the UK as a result of the CJEU rulings, one can still presume that in the great majority of cases works would also gain protection under the new regime. 2729. UK copyright law: the basics Out-Law Guide | 24 Jul 2020 | 1:58 pm | 6 min. Webpersonality, plays no role.5 Furthermore, the general opinion is that in UK copyright law in fact two different levels or even qualities of originality operate,6 and the recent CJEU Footnote 67 as regards photographs and in Football Dataco UK: CDPA 1988, Sec. The element of choice played a role in the assessment of the originality of the intellectual contribution.Footnote 177, A case of a transplant into UK law of the own intellectual creation originality rule of the EU Directives and its interpretation by the CJEU is the English case of Meltwater.Footnote 178 The High Court, affirmed by the Court of Appeal, held that the defendants copying of titles and short extracts of newspaper articles as part of its business as a commercial media monitoring service could infringe copyright. Accordingly, the interface can be protected, as an original work in general (though not as a computer program specifically), if it is its authors own intellectual creation.Footnote 29 Whether that is indeed so in the concrete case, is for the national court to decide. This problem also emerges in relation to smaller sectors of European or constructed European private law, for example the European laws on suretyship: the laws in Europe are characterised by diversity and differentiation, and a uniform approach in EU legislation risks causing more legal fragmentation. Had the court dismissed the matter due to the strict application of originality, all parties would have lost all the benefits that result from copyright protection. This lends credence to the notion that the test of originality should continue to be the authors own intellectual creation in the United Kingdom copyright law. The author is protected by the authors right as a person (in its conception a kind of human rightFootnote 87) and therefore everything the author creates and which bears the features of the authors personality also obtains protection.Footnote 88 The author in droit dauteur systems is not merely a property maker: the property product the author creates (the work of the author) is indirectly protected through the authors personality protection. 1.1(1) suggests, however, that we have not arrived at an uncontested status quo yet, because the proposed originality definition seems to accommodate skill and labour originality as well as creative originality.Footnote 187. The principal idea of originality in droit dauteur countries is not really compatible in most practical cases with the notion of the protection for computer programs and databases, which is essentially an investment protection. 36. Or, in the more popular rendering of Lewis Carrolls Humpty Dumpty:Footnote 189 When I use a word, Humpty Dumpty said, in rather a scornful tone, it means just what I choose it to meanneither more nor less.Footnote 190 One can now conjecture what the UK courts may choose originality to mean in the light of the recent CJEU decisions. WebA. IIC 44, 434 (2013). 17: To secure copyrightit is necessary that the labour, skill and capital expended should be sufficient to impart to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material. 2728. Similar Waylite Diary CC v. First National Bank [1993] EIPR D-242. IIC 41(5):524ff, Schricker G, Loewenheim U (eds) (2010) Urheberrecht. Anyone you share the following link with will be able to read this content: Sorry, a shareable link is not currently available for this article. German Copyright Act 1965, Sec. 36, Football Dataco, supra note 2, at para. This is also the case in relation to parts of a work, which cannot be treated any differently from the work as a whole.Footnote 24 Newspaper articles would clearly be their authors own intellectual creation and protected as literary works under the Information Society Directive. Copyright and droit dauteur lawyers alike may consider this rule as a transplant or being imposed on their national copyright/authors right system. First, the author has to be a natural author,Footnote 92 statutory authors,Footnote 93 or (corporate) authors under a works made for hire doctrineFootnote 94 are ruled out in principle.Footnote 95 Secondly, the personality of the author as a physical human being is protected by the moral rights, of which the right to be named as the author (paternity/attribution right) and the right to object to derogatory treatment of the work (integrity right) are the most important ones.Footnote 96 These moral rights are integral to the authors rights protection system,Footnote 97 and not just an addendum without being a constituent element within the copyright system, as is the case in the UK.Footnote 98 Thirdly, as the personality protection of the author extends to what emanates from the author as a person, the work must bear traces of the authors personality to deserve protection. See e.g. In: Laslett P (ed) Two treatises of government. Walter v. Lane [1900] AC 539, at 552, per Lord Davey. For the UK that would mean that the old skill and labour originality requirement has to be qualified somewhat in theory; although, the practical difference that the application of this new originality test will make to the UK copyright system isprobably very small indeed. See Rehbinder (2010), p. 69; Loewenheim in: Schricker and Loewenheim (2010), Sec. (2013) Originality in UK Copyright Law: The Old 'Skill and Labour' Doctrine Under Pressure. The draft European Copyright Code proposed by the Wittem Group in 2010, defines in Art. (Vienna), LL.M. This has been an issue for a long time. This cannot be said of Infopaq and the subsequent cases; furthermore, it is at least arguable that in these cases a Community Law provision appears included which does not even exist as yet (that is, a general rule on originality in copyright). Further discussion of the originality requirement in musical works of joint authorship in Rahmatian (2009), p. 570573; Rahmatian (2011), p. 191193. Oxford University Press. The CDPA leaves the interpretation of the term original to the courts, see CDPA 1988, Sec. English law rejects comprehensive codification in principle and would not see such a move as necessary. This is certainly true of the types of work which the Directives address (computer programs, data bases and photographs) and seems to be an example of primarily non-legislative harmonisation through judicial convergence, based on different protection philosophies as their starting point.Footnote 192 The regulation of these categories of work has led to different standards of originality within the respective national systems in both the copyright and the authors rights countries. 49. 19, Sec. non-artistic photographs, computer programs and databases. WebThe originality concepts of both the copyright system of the UK (skill and labour) and the authors rights systems (personal intellectual creation bearing the stamp of the author) are 4 notes 2, 56. Some droit dauteur commentators question whether it is desirable in the long run to maintain different originality levels within one jurisdiction, also in view of possible further harmonisation at EU level in the future.Footnote 135 The EU own intellectual creation originality has also been interpreted as a qualitative shift from the subjective traditional stamp of the author originality to an objective approach to originality.Footnote 136 This can be observed, for example, with regard to databases (own intellectual creation) if these are compared with the originality criteria for anthologies and compilations, which the authors rights laws traditionally protected.Footnote 137 The area of compilations and similar works was, however, always an established field of the operation of the kleine Mnze concept.Footnote 138 One can see that the introduction of the own intellectual creation criterion created as much fragmentation of the originality notion in droit dauteur countries as in the UK. in: Kluwer Copyright Blog, 1 March 2012. http://kluwercopyrightblog.com/2012/03/01/football-dataco-skill-and-labour-is-dead/. Accessed 15 March 2012, Gadamer HG (2003) Truth and method. 2(2) that the work must be a personal intellectual creation. Software Directive, Art. French Supreme Court, Cass. The CJEUs development of the interpretation of originality in copyright can be interpreted in the following way for the further discussion. See Yin Harn Lee (2012), supra note 19, at 290293. Compare Interlego A.G. v. Tyco Industries Inc. [1988] RPC 343 at 371372. Wittem International Network Project on a European Copyright Code, available at: http://www.copyrightcode.eu/ (accessed 18 April 2012).

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