Money for nothing and your copyright protection

Course Convenor: Alan Story - ‘Originality in copyright is a contested issue. Discuss’. - Sophie Read

Intellectual Property Law

(LW556) Dissertation:

‘Money for Nothing and your

Copyright Protection for Free!’

2005-2006

Word Count: 5,081

SOPHIE READ

Page 1 of 26


CONTENTS

ABSTRACT pg3

Part One

INTRODUCTION i) Deciphering the ‘Original’ Requirement ii) Exclusive Rights and the Public Domain iii) Creativity Ceases iv) Subjectivity

Part Two

pg 4 pg 5 pg 7 pg8 pg12 i) The Author, Authorship and the Flaws or the Romantic Theory pg14 pg 17 ii) Has the Author Vanished? iv) Photography v) Reform?

CONCLUSION

BIBLIOGRAPHY pg17 pg23 pg 20 pg 21

Page 2 of 26


Abstract

Originality has been described as ‘[t]he sine qua non of copyright law 1 ’. It is a legal construction with fundamental importance and must be satisfied in order for copyright to subsist. To analyse this criteria it is important to disengage oneself from the common understanding of ‘originality’ as it is eviscerated of its come meaning.

2

The first part of this dissertation will concentrate on the skill, effort and judgement requirements that arose from the case of Ladbroke. To ones dismay what manifests after analysis is that this originality requirement, I think, erodes the public domain via its ambiguity and low threshold which therefore allows non-original and non-beneficial works to enjoy the exclusivity that copyright protection provides and refutes the justification that copyright law encourages creativity.

The second part will concentrate upon satisfying that the work must originate from the author as in University Press case. This I believe is completely flawed concept because to say that the work must originate from the author cannot be sustained because of the fortified theory that nothing is ever original, as the new build on the old and works are therefore often readjusted and reshaped

3

.

1 Feist Publications, Inc v. Rural Telephone Services co. Supreme Court of the US 499 U.S 340 (1991)

2 http://aix1.uottawa.ca/~dgervais/publications/Feist%20Article%20(PDF).pdf

3 Lessing, L ‘The Future of Ideas’ (Vintage Books, 2002) pg 105

Page 3 of 26


Part One

‘

ORIGINALITY SHARES THE FATE OF A PINK ELEPHANT, EASY TO

RECOGINSE DIFFICULT TO DEFINE’

-Professor Franz van Isacker-

INTRODUCTION

Historically no proprietary rights could be claimed over the author’s works. ‘ True inspiration was divine’ as humans were seen as

‘craftsmen [and] as mere copiers.’ 4

There are several views of how the copyright law came into play; the orthodox view

5

is that The Statute of Anne 1710 was the main origin of copyright law as it started the concept of author being viewed as owners

6

as opposed to being merely

‘mouthpieces.’ 7

Currently the Copyright, Designs and Patents Act 1988 governs this area and provides a detailed list of the types of creations protected by copyright law

8

. Copyright is ‘ a privilege granted by the state to the copyright owner

9

.

An obvious corollary to this would be for certain criteria to be met for an applicant to be successful.

The originality requirement is the first and foremost criterion that needs satisfying in relation to the form in which the work is expressed albeit literary, dramatic, musical or artistic

10

. This requirement is said to be the most

‘well- known’ 11

and therefore denotes

4 ibid pg 7

5 There are many areas to highlight which all could be justified as to how the notion of copyright law began. Different interest could reveal different justifications for example, Locke, J implicit notion that individual as authors experience. For more discussion see: Deazley, R ‘On the Origin of the Right to Copy:

Charting the Movement of Copyright Law in the Eighteenth Century Britain (1695-1775)’ (Oxford

University Press 2004)pg 47.

6 This statute also introduced the principle of fixed term protection of twenty eight years.

7 Littrell, R ‘Towards a Stricter Originality Standard for Copyright Law www.bu.edu/law/news/ip/papers pg 7

8 From now on I will abbreviate to the CDPA 1988.

9 Wei, G ‘Telephone Directory and Database: The Policy at the Helm of Copyright Law and a Tale of Two

Cities’ Intellectual Property Quarterly (2004) pg 4

10 CDPA 1998 s.1(1)(a)

Page 4 of 26

Course Convenor: Alan Story - ‘Originality in copyright is a contested issue. Discuss’. - Sophie Read not only its fundamentality but also the heavy weight that this criteria has placed upon it.

It is therefore a resonant component that is important to be clearly identified what exactly is required and what the term ‘original’ demands. i)Deciphering the ‘Original’ Requirement.

The aforementioned Act provides no definition as to what is meant by the word

‘original’. To use ones common understanding of something that is original would provide bedevilling results. There is no correlation between original within the common understanding

12

and the use of original in this context. We must, therefore, subject the meaning of this word to an entirely different denotation in order to understand its role.

Does this test require something creative, innovative or would some evidence of labour suffice? Can it be said that

‘It includes, if not creativity per se, at least some sort of intellectual effort?’ 13

Regrettably there is no clear cut answer and the more one analyses this requirement the nearer one becomes to unravelling a deep-seated ambiguous requirement that is unascertainable and has a low threshold. In doing so therefore one fails to see that how this requirement can be justified, as its role is in no way transparent and its application is ambiguous.

Case law provides some indication as to what the orientation of this requirement demands. The two cases that I will look at reveal a two part test, firstly, skill, effort and judgment must be spent by the author

14 and secondly the work must originate from that author and cannot be copied.

11 Lionel, Bentley, Sherman ‘Intellectual Property Law’ (Oxford University Press, 2000) pg 80

12 Common understanding be it first, earliest, able to produce new ideas which would be a similar to the understanding of its meaning in Patent Law.

13 http://aix1.uottawa.ca/~dgervais/publications/Feist%20Article%20(PDF).pdf

:

Gervais, D ‘Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law’

(2002)

14 The author will be discussed in the latter part of this dissertation, but for clarification it means the author is the person who creates it CDPA 1988 s. 9

Page 5 of 26


The case of Ladbroke (Football) Ltd v. William Hill (Football)

15

revealed the former test where Lord Reid commented

16

that in respect to this copyright infringement claim it could not be disputed that

‘a vast amount of labour, skill or effort…has gone into building the respondents coupons.

17 ’

This therefore established that for copyright to subsist there must be the expenditure of the above three elements 18 which provides some indication to deciphering originality.

These components are in no way highly expectant or demanding; in fact they are applied in a very loose way and have a very low threshold. These elements are fluid and are not applied objectively which consequently blurs their application.

19

The latter part was founded in the case of University of London Press Ltd v. University

Tutorial Press Ltd

20 where it was stated that

‘the originality which is required related to the expression of the thought… the work must no be copied from another work …that it should originate from the author.’ 21

This second part test also is unsophisticated as to what it demands. In the simplest understanding it requires that the work must come from the author and that the author did not copy this work.

Initially one might consider the role of these requirements in the originality test to be of immense importance because it could be an avenue to deciding whether new types of classes of works should be protected by copyright

22

or to ascertain whether infringement has occurred

23

. It may be seen that these could equip the Courts with the means to turn

15 Ladbroke (Football) Ltd v. William Hill (Football) Ltd [1964] 1 All ER 465

16 It must be noted that this was not the first case to introduce these requirements Walter v. Lane [1900] AC

539 in which a transcribed speech was deemed for copyright to subsist because the report had exercised co nsiderable amount of skill, effort, and judgement.

17 ibid 465, 469 Lord Reid

18 Although there is no indication as to what weight is given to each of these requirements.

19 Boyd, S ‘Deriving Originality in Derivative Works: Considering the quantum of Originality needed to attain copyright protection in a derivative work’ Santa Clara Review (2000) pg 5

20 University of London Press Ltd v. University Tutorial Press Ltd [1916] 2 Ch 601

21 ibid per, Peterson, J.

22 For example, Photography, Folklore or Aboriginal Art.

23 Lionel, Bentley, Sherman

‘Intellectual Property Law’

(Oxford University Press, 2002) pg 84

Page 6 of 26

Course Convenor: Alan Story - ‘Originality in copyright is a contested issue. Discuss’. - Sophie Read down frivolous claims by applying these strictly and only succeed those works that deservingly require copyright protection.

However having no statutory definition as to what either skill, effort and judgment demands or what it means to say that the work must originate from the author perpetuates the ambiguity that currently surrounds this area and provides indistinctness 24 . Attracting an application of a low threshold

25 effectively produces an outcome which does not encourage desirable behaviour but it opens the floodgates so that every type of work can easily succeed and subsequently enjoy the powerful rights that copyright protection exclusively permits. ii) Exclusive Rights and the Public Domain

The problem of allowing such nonchalant vetting of works through originality can be disastrous to the public domain.

With the implementation of the EU Directive

26

the duration of copyright protection was extended from life plus fifty years to life plus seventy years in the UK by 1996

27

. This meant that the rights granted by copyright protection were extensive and exclusive

28

. If I was to successfully obtain copyright protection of this dissertation

29

then it would mean, providing I lived until the age of seventy, that this work would be protected until the year

2126! This connotes that other authors could not build or expand upon my work until this very year because of my ownership rights that would have been granted to me.

Karjala

30

in his article entitled

‘Comment of the US Copyright Laws Professors on the

Copyright Office Term of Protection Study

31 ’ comments upon the duration of copyright protection and how it hinders the public domain. Karjala states that the extension leads to

24 Ricketson, S ‘The Concept of Originality in Anglo-Australian Copyright Law Copyright Society of

U.S.A.

, vol. 39, (1992)’pg 267

25 For example timetables, coupons and exam papers been held to be original.

26 Duration of Copyright and Rights Performance Regulations 1995 SI 1995/3297

27 CDPA 1988 s. 12

28 ibid s. 16

29 Providing of course that I could successfully satisfy the originality requirement!

30 Karjala, D ‘Comment of US Copyright Law Professors on the Copyright Office Term of Protection

Study’ European Intellectual Property Review (1991) pg 3

31 ibid

Page 7 of 26

Course Convenor: Alan Story - ‘Originality in copyright is a contested issue. Discuss’. - Sophie Read a higher cost to the public domain to works which would otherwise be free

32

. Also he notes that the public domain has always been an integral part of the

‘social bargain inherent in copyright law.’ 33

The importance to highlight is that there is good justification as to why the term of copyright duration has been extended; I am not disputing this here. What I believe is empirical to draw to ones attention is that this extension only exuberates the need for works that are given the protection to be considered for there benefit to the public domain.

When the author of the work dies there is no provision for compulsory licensing. This type of licensing effectively allows, for example, musical like Les Miserables to be benefited by the public.

34

This is restricted when the author dies and therefore fortifies the need for the public not to restrict current creators so that they can build upon descendant’s works.

35

The originality requirements low threshold means that it has dramatic effects on the public domain by allowing copyright to be granted to undeserving works and restrict the domain from developing. iii) Creativity Ceases.

Injecting an instrument into the Ladbroke originality test that requires creativity to be considered would mean that the work would need to show some deserving quality. It would therefore decongest the public domain of any undeserving works, such as coupons, and ensure that the exclusive rights benefit not only the author but give something to the public in return. Granting copyright protection to works which are significantly beneficial to the public domain deserve the exclusive longevity.

It would also restrict and tighten the current application of this test and demolish the low threshold that is current ambiguous and completely flawed as to how it decides what works deserve protection.

32 ibid pg 2

33 ibid. pg 3

34 ibid

35 ibid

Page 8 of 26


‘Copyright is a crucial part of the process of creativity; a great deal of creativity would not exist without the protection of the law. Without the law, the incentives to produce creative works would be vastly reduced. Copyright is therefore an integral and crucial part of the creative process.

36 ’

This quote evidences the crucial role of including creativity into this area of copyright law. The slow demolition of this requirement was kept alive in the case of Feist

Publications 37 it was held that ‘…telephone numbers…could not be more obvious and lacks the modicum of creativity necessary to transform mere selection into copyrightable expression…moreover there is nothing remotely creative about arranging names alphabetically’ and therefore reiterated the importance of creativity albeit only a modicum.

Idealistically one would also hope that the skill, effort and judgment test that arose from

Ladbroke

38 would be injected into the originality requirement so that it could perpetuate and keep alive the justification for encouraging creativity into the pubic domain.

Unfortunately I think that the stance that this test takes is a mechanical one which purely looks at labour of the work. This is fortified by the comparison of the two cases:

Ladbroke and G.A Cramp & Sons Ltd. Frank Smythson.

39

What was being protected in the Ladbroke was the format of a football betting coupon.

This case erodes any degree of creativity that could be used to analyse whether or not copyright subsisted. Lord Reid stated that he did not think that it was to be disputed that a great deal of work had gone into the coupons .

I think however that the amount of work expended to produce these coupons should be disputed. This type of business is centred on the odds of football games but just because that is the nature of the business does not mean that copyright can subsist. No copyright law protects odds and how difficult is it to produce a coupon of this type? Lord Reid gave

36 Lessig, L ‘ The future of Ideas’ pp 107-108 explicitly states his theory that creativity is perpetuated by copyright process

37 Feist Publications, Inc v. Rural Telephone Services co. Supreme Court of the US 499 U.S 340 (1991)

38 This was also reiterated in Interlego AG v. Tyco Industries Inc [1988] 3 All ER 949

39 G.A Cramp & Sons Ltd. V Frank Smythson Ltd. [1944] AC 329

Page 9 of 26

Course Convenor: Alan Story - ‘Originality in copyright is a contested issue. Discuss’. - Sophie Read no explanation as to the weight given to the components, nor did he suggest which one was the deciding factor. I suggest that Lord Reid looked at the effort that the coupon had taken to devise and the nature of the business and consequently found copyright to subsist, therefore applying a mechanical test which diverts from any creativity.

In the case of Cramp the Court rather ambiguously decided that the pocket diaries which included tables of weights and measures, timetables and percentages tables were not original as they were ‘commonplace’ which resulted in no room for ‘taste or judgment and their selection did not constitute an original literary work.’

40

The complexity of applying the originality test can be seen as each Court, until the House of Lords, showed a divergence of opinions. The Court of first instance, Justice Uthwatt found there to be no real

‘exercise of knowledge, labour, judgment or skill.

41 ’

The Court of Appeal then reversed this although there was a

‘near line’ of protection. Finally the House of Lords held that the selection was negligible

42

.

I would not really dispute the fact that a diary in this case doesn’t take a great deal of selectivity to produce, but what I would dispute is the fact that the case law isn’t consistent in what they deem to be original. It is not clear on the application of this test and consequently allows for low standard of originality

43

to be applied and therefore creativity in the public domain diminishes rapidly. Labour in this case seems to be the controlling element, and therefore no creativity is even considered.

Cases that date back to the early twentieth century confirm that this mechanical analysis of the work in question is the deciding factor.

H Blacklock Co v. C. Arthur Pearson Ltd 44 held that labour and skill had been sufficient in the production of alphabetical index of railway stations although in the United States Supreme Court refused this type of work

40 G.A Cramp & Sons Ltd. v. Frank Smythson Ltd. [1944] AC 329 as per Viscount Simon L.C

41 ibid at 136-37

42 Ricketson, S ‘The Concept of Originality in Anglo-Australian Copyright Law’ Copyright Society of

U.S.A.

, vol. 39, (1992) pg 277

43 ibid pg 269

44 H Blacklock Co v. C. Arthur Pearson Ltd 2 CH 376 (1915)

Page 10 of 26

Course Convenor: Alan Story - ‘Originality in copyright is a contested issue. Discuss’. - Sophie Read protection for lack of

‘original work… of authorship’ in the absence of creativity contribution.

45

Although these cases are similar as they adopt the mechanical approach the outcomes are different. In Ladbroke there was sufficient originality but in Cramp there was not but to me they were judging something very similar both not demanding a lot to produce. What messages that these cases send is nothing but unclear, confusing and ambiguous as to the role of the originality requirement. Could one just assert that perhaps then the originality requirement is more concerned with the labour that has been expended and therefore diminishes the creativity and subsequently harms the public domain?

Some would disagree and argue that these factors do move towards the creativity spectrum

46

as they require skill and effort. I would disagree because although the

‘mix of attributes’ 47

could be scrutinized in a way to say that certain components encourage creativity in actual fact the weight given to each one is ambiguous. Concomitantly with this is that it provides the Courts to be persuaded by the applicant showing that they have expended a great deal of time, energy etc and ultimately be given powerful economic gain as a consequence.

The danger of eroding away at the public domain means that not only does the copyright protection give years of exclusive rights it also monopolises this area of the law.

The economic incentive to encourage creation of works is fundamental when considering the costs of production, albeit large budget films or a small anthology of poems, as there is huge amount of expense that the putative author will incur in producing the work.

Judge Posner, R has written that ‘[T]he absence of copyright protection is, paradoxically as this may seem, a benefit to authors as well as a cost to them.’ 48

45 Feist Publications, Inc v. Rural Telephone Services co. Supreme Court of the US 499 U.S 340 (1991)

46 www.bu.edu/law/news/ip/paper_Craig.pdf

pg 25

47 ibid pg 25, which goes on to say that the attributes being not just the labour but the skill and judgment expended makes up the originality test. It goes on to say that the labour aspect is the industry analysis but the other components are which redirect the proceeds down the scope towards creativity.

48 ibid pg 108

Page 11 of 26


I am not disputing the justifications for having an economic incentive, I am stating however that what I have analysed so far, that being a low threshold that diminishes the public domain, also indirectly projects economic exploitation that orientates copyright law. I assert this because of the power that the protection gives enables the copyright owner to maximise the cost which invariably is a higher cost than that of production itself.

49

As there is no general licensing of copyrighted work monopolising in such a way cannot be prohibited.

This echoes the dire need to control the claims for copyright protection to those that deserve such protection. This would harmonise the battle between the public domain but to keep the momentum of works being creative.

Such a low threshold doesn’t do this it gives infinite rights to the owners for works that cannot justify such protection and destroys the public domain which is suppose to be the source of the finest and popular works.

50 iv) Subjectivity

Some say that creativity in copyright law has diminished. Case law certainly fortifies its extinction as the emergence of a mechanical process has taken the fort. If this trajectory is correct then it produces disastrous effects on the public domain as discussed. It is difficult how to see way to refute this argument other than to say creativity in works as it acts as a public preservation.

To view originality subjectively fortifies the erosion of creativity even further as it concentrates upon the personality element of the author. This then means that the concentration moves from the work itself onto the person who creates it and means that

‘even a “non-creative” effort will be sufficient, as long as it derives from a person…’ 51

If this trajectory is correct then it has disastrous effects as previous discussed but as case law promotes mechanical analysis one tends not to see how this can be refuted. To view


Study’ European Intellectual Property Review (1991) pg 2

50 Ibid pg 7

51 Dreier & Karnell ‘Originality of Copyrighted works: Originality of the copyright work A European

Perspective’ (……….) pg 291

Page 12 of 26

Course Convenor: Alan Story - ‘Originality in copyright is a contested issue. Discuss’. - Sophie Read originality in a subjective way also corrodes the public domain and reinforces the easy access to the capital that would flow from protection. Money for nothing and copyright protection for free. This then leads us on to the next important aspect of the originality requirement: The Author.

Part Two

‘ORIGINALITY IS A LEGAL FICTION. IT IS INHERENTLY

UNASCERTAINABLE…BECAUSE AUTHORS RESHAPE PRIOR WORKS OF OTHERS’

-Jessica Lipman

52

-

This second part of this essay will be looking at the pre-requisite that arose from the case of University Press

53

. To recap this case demands that part of the originality test must satisfy that the work should originate from the author and it must not be copied

54

. We know that the originality test is said to be the very essence of protection

55

which is a pervading pre-requisite

56

and is therefore important to understand and to ascertain what is required.

This idea, criterion, or component within the copyright test could play a fundamental role by filtering claims that really do not deserve the powerful copyright protection and protect those works which really do contribute to the progress in science and arts which effectively would serve more of a public interest.

57

It could, together with the above components be a vigorous test.

52 Litman, J ‘The Public Domain’ Emory Law Journal (1990) pg 1

53 University of London Press Ltd v. University Tutorial Press Ltd [1916] 2 Ch 601

54 Emphasis added.

55 Boyd, S ‘Deriving Originality in Derivative Works: Considering the quantum of Originality needed to attain copyright protection in a derivative work’ Santa Clara Review (2000) pg 2

56 ibid pg 1


Study’

European Intellectual Property Review (1991) pg 3

Page 13 of 26


However I suggest throughout, that to necessitate that the work should originate from the author is another completely flawed concept and that nothing is ever truly original.

Patent law is not parallel to copyright law and as we know. Inventions must meet the novelty step,

58

which requires that the invention be new and unique, this is easy to ascertain by the science of the invention. Copyright law cannot demand such as test as there is no science to base it upon.

This criterion leads one to ask what it actually is demanding. I will consider this now in the light of authorship and what manifests is a truly flawed conception that has no fortified foundations and therefore effectively weakens the originality principle once more. i) The Author, Authorship and the Flaws of the Romantic Theory.

Copyright law began with authorship

59

which was applied in a reflexive way and secured the rationale for propertising the productions

60

. It arose as the product of growing writers who sought to earn their living via selling their work to the increasing reading public.

61

It was something that, in the eighteenth century, was strongly associated to the Romantic

Movement in literature and in art

62

. Authorship adopted this notion that the works was something

‘infinite and the transcendental’ 63 and was envisioned as

‘creating Aphrodite from the foam of the sea’ 64

. Creativity and originality were later poured into its notion

65

.

58 CDPA 1988 s.2 in this area of intellectual property the need for a novelty step is so that the same invention cannot receive double protection.

59 Jaszi, P ‘Towards a Theory of Copyright: The Metamorphoses of “Authorship” Duke Law Journal (1991)

pg 6

60 ibid

61 Jaszi, P., Woodmansee, M ‘Report: Intellectual Property and the Construction of Authorship’ – ‘The

Genius and the Copyright: Economics and Legal Conditions of the Emergence of the Author’ Eighteenth

Century Studies (1984)

62 Jaszi, P ‘Towards a Theory of Copyright: The Metamorphoses of “Authorship” Duke Law Journal

(1991) pg 1

63 ibid

64 This is referred to by many writers, for example, Litman, J ‘The Public Domain’ Emory Law Journal

(1990) pg 1 or Littrell, R ‘Towards a Stricter Originality Standard for Copyright Law www.bu.edu/law/news/ip/papers pg 7

Page 14 of 26


Romanticism deems that the work created must ooze originality and concomitant to this was the belief that the work was a result of the writers own genius

66

. I assert that this is not so and one cannot apply this theory in contemporary society.

To require that the work must originate from the author is somewhat equivocal. It wrongly assumes that there is common understanding of who the author is. Sure enough the CDPA 1988 attends to this by clarifying that the author ‘in relation to work, means the person who creates it’ 67 . This is not an adequate definition because there can be no one definition as an author may never be said to be the sole creator of the work in question. In my opinion, nothing is ever original as works are drawn from experiences influences or unconscious thoughts.

68

I would agree that

‘[T]he very act of authorship in any medium is more akin to translation and recombination…… composers recombine sounds they have heard before…lawyers transform old arguments to fit new facts…’ 69

Rather controversially the works of Beethoven have been questioned. The Guardian newspaper printed an article that was to shock many and to create an up heave. The headline read

‘Revolutionary Theory that Shows Beethoven ‘pinched’ his famous

Tunes.’ 70

As shocking as this was to likes of one of the British leading conductors, John

Gardiner who stated that he thought that Beethoven’s music was

‘blatant pinching’ 71

, to me this does provoke or reveal anything out of ordinary and shouldn’t attract attention.

Does not everything that we know today whether it be a piece of music, or a sonnet or even a coupon derive from outer experience?


(1991) pg 6

66 ibid pg 8

67 CDPA 1988 s. 9 (1). Primary works the author would be the person who has spent the Ladbroke requirements or secondary works would be the commercial arranger of the work.

68 Jung, C.J ‘Man and His Symbols’ (Ferguson Publishing Company, 1964)

69 Litman, J ‘The Public Domain’ Emory Law Journal (1990) pg 1 also see the case of Walter v. Lane for views on translations.

70 Glaister, D ‘Revolutionary Theory Shows Beethoven ‘Pinched’ his famous tunes’ The Guardian (London)

11/05/1996

71 ibid

Page 15 of 26


I believe that they do and that every aspect of what is classified as works is influenced by some prior work. The use of the author is just to denote who is claiming the rights over the works. Authorship quite literally meaning

‘author-ity, and author the word of power.’

72

Jung has written that [T]he unconscious consists of a multitude of temporarily obscured thoughts, impressions and images, that in spite of being lost, continue to influence our conscious mind.’ 73

It may be thought that the author of that work is producing something that he has never imagined before, but how can this be proved? Jung continues to say that ‘He may not even have noticed the change, though he has now produced material that is entirely fresh and apparently unknown to him before…… it can be convincingly shown that what he has written bears a striking similarity to the work of another author’ 74

.

This just reiterates the fact the composers recombine sounds they have heard before

75 and that authors are not really authors as once romantically thought. This theory has and is demised by my contemporary theory that an

‘idea is not breathed into the mind from without a force, a person or an influence’ 76

and that inspiration is drawn from outer thoughts.

To adopt the use of author is nothing more than an artificial legal construction that has no real meaning

77

it is simply used to point a finger

78

. It is the kept components of the

Romanticism that create an even more ambiguous originality test. Romanticism structures have dissolved and in order for less ambiguous criteria one needs to disengage authorship from these.

79


(1991) pg 6

73 Jung, C.J ‘Man and His Symbols’ (Ferguson Publishing Company, 1964) pg 32

74 Ibid

75 Litman, J ‘The Public Domain’ Emory Law Journal (1990) pg 1

76 Sharnol, T ‘Originality: A Popular Study of the Creative Minds’ (T. Werner Laurie LTD, 1917)

77 Lionel, Bentley, Sherman ‘Intellectual Property Law’ (Oxford University Press, 2002) pg 45

78 Foucault, M ‘What is an Author?’ (1979) pg 121

79 Gaines, J ‘Contested Culture: The Image, The Voice, and the Law’ (BFI Publishing’s, 1991) pg 65

Page 16 of 26

Course Convenor: Alan Story - ‘Originality in copyright is a contested issue. Discuss’. - Sophie Read ii) Has the Author Vanished?

If works that are subject to copyright protection really cannot be said to originate from the author, which in most case I do not think does, then effectively what happens is the author vanishes.

The thoughts of a vanishing author are well recognised by the likes of Barthes, Jaszi and

Foucault

80

. This theory supposes that because of the effects that I have discussed above that really nothing is every original because we draw on inferences that consciously or not influence us we cannot say that the work is truly original.

To say that the author has vanished implies that there is no ascertainable distinction between when the author of the already expressed work starts and when the new one begins. Beethoven’s music cannot be segregated as to what compositions his music was inspired by and to which compositions were his own.

81

Similarly both Ronald Barthes and Michael Foucault suppose that the author was diminished when the new

‘birth of the reader began.’ 82

Barthes stated that the

‘…disconnection occurs, the voice loses its origin, the author enters into his own death, writing begins’ 83

.

Foucault doesn’t adopt the exact same line as death of the author but could be seen as tantamount as the trajectory he takes, albeit slightly different, the author still diminishes. Foucault states that the

‘author remains an open ended question both with respect to its general function within discourse....’

84 iii) Photography

I think that it is important to mention originality within photography as it reinforces both theories that I have made in this dissertation as it encompasses both originality components. Upon analysis it both strengths the premise that I made in the former part,

80 Ronald Barthes (1915-1980), Peter Jaszi (1991) and Michael Foucault (1926-1984)

81 This is of course supposing that the revelations are correct as alleged in the aforementioned Guardian article.

82 www.arasite.org/barthes.html

: ‘ Reading Guide to selection from Barthes, R (1971) ’ (London: Fontana

Press) Accessed on 06/12/05

83 The Death of the Author: Modern Criticism and Theory, Lodge.

84 Foucault, M ‘What is an Author?’ (1979)

Page 17 of 26

Course Convenor: Alan Story - ‘Originality in copyright is a contested issue. Discuss’. - Sophie Read revealing a low threshold that is concentrated upon a mechanical analysis of the work and also fortifies the theory of the dissolved author made in the latter part of this dissertation.

Photography’s eligibility for possible copyright protection evolved over the late nineteenth century when it came to be recognised as artistically creative.

85

The case of Burrow-Giles Lithographic Co. v Sarony 86 was an important case as it involved copyright of routine studio photography. This case challenged the American constitutionality of the Copyright Act (amendment) 1865 covering photography.

87 There was nothing romantic in the Courts approach in this case as the Court adopted a mechanical analysis to merely find the origin of the work, i.e. who expended the labour?

88

It could be said that it emphasised authorship but it did not do this in the romantic sense just added emphasis to

‘point the finger’ as to who enjoys the rights flowing from the protection.

Twenty years later the case of Bleistein v. Donaldson Lithographic Co

89

arose which involved copyrightability of circus posters and the rights to protect the reproduction. This case adopted a different approach to Sarony and viewed the photography in relation to the work itself and not upon the author as already described.

90

The Court in this case recognised that to deem one type of picture copyrightable then one must continue with this line to say, that the images on the advertising poster were illustrations and as illustrations associated to pictures and therefore deserving of copyright protection.

91 ‘A picture is none the less a picture and none the less a subject of copyright that it is used for an advertisement. And if pictures are used to advertise soap or the theatre… they may be used to advertise a circus.

92

The case therefore is interesting when considering this

85 ibid pg 82

86 Burrow-Giles Lithographic Co. v Sarony Co. 17 F 591 1883


88 ibid pg 51 The Court also held that the work was analogous to fine arts and therefore held there to be copyright protection.

89 Bleistein v. Donaldson Lithographic Co 23 S. Ct 298 1903


(1991) pg 10

91 ibid

92 Bleistein v. Donaldson Lithographic Co 23 S. Ct 298 1903

Page 18 of 26

Course Convenor: Alan Story - ‘Originality in copyright is a contested issue. Discuss’. - Sophie Read death of the author

93 because it is recognising reproductions of posters to be protected regardless of the degree of artistry by the author.

94

This case fell far from emphasising the once acclaimed romantic authorship theory and readjusted the significance of the creative input to be set low.

95

This category of authorship is then re-associated with the smallest amount of creativity and deflates the once proclaimed fundamental role of the ‘author.’ This replaces the notion of author not as the creator but as ‘one man alone’ 96

The next case that do develop photography was the case of Sarony v. Burrows-Giles 97 where the photographer Napoleon Sarony claimed the defendants had made unauthorised copies of the

‘Oscar Wilde, No 18’

that he had taken during a sitting. Sarony claimed that he had

‘authorial creation’ on the photograph and the Circuit Court of New York found in Sarony’s favour ‘ a use of harmonious, characteristics, and graceful picture… and the plaintiff made… entirely from his own mental creation’ 98

The UK stance, through implementation of Duration of Copyright and Rights Directive

99 intends that the standard of the originality test requires that the photograph will be original if it is the

‘authors own intellectual creation reflecting his personality.’ 100

What we have is this area of photography that highlights that the originality requirement is flawed. If it cannot be fortified or sustained as to who the author actually is or it cannot be proved that the work has not derived from other influences then the concept simply that al that has to be proved is that the work was not substantially copied. So I would take

93 As stated by Ronald Bathes, see www.arasite.org/barthes.html

: ‘Reading Guide to selection from

Barthes, R (1971) ’ (London: Fontana Press)



(1991) pg 10


97 Sarony v. Burrows-Giles Lithographic Co. 17 F 591 (S.D.N.Y 1883)


99 Duration of Copyright and Rights Performance Regulations 1995 SI 1995/3297 Others include Software

Directive 91/250/EEC Article 1(3) and Database Directive 96/9/EC Article 3(1)

100 Recital 17 of the aforementioned Directive (1995)

Page 19 of 26

Course Convenor: Alan Story - ‘Originality in copyright is a contested issue. Discuss’. - Sophie Read a theme of a children’s book rearrange the ending or the names of the character and demand that this is original as the labour derives from me. I would refute any argument that the book was not original for I would say that the work has been influenced but not copied. iv) Reform

This low threshold that this ambiguous requirement oozes has dramatic effects upon the public domain. It can be seen that too much work that enters into the extended copyright protection hinders, restricts or blocks the potential redevelopment. Litman states that

‘[T]he pubic domain should be understood not as the realm of material that is undeserving of protection, but as a device that permits the rest of the system to work by leaving the raw material of authorship available for authors to use’ 101

There is need for reconciliation between the need to encourage authors to produce works so that the public domain will benefit but also to reduce the risk of giving too much protection to works that are of undeserving quality.

One area to consider would be fair dealing. Fair dealing can be found as a statutory defence so that a person will not be liable for copyright infringement if they can show that they fall within s. 29-31 of the CDPA 1988. The application of this defence is still restricted as there are only three areas that that respondent can claim under.

102

Sure to say that there needs to be some restrictions upon this defence otherwise the protection would lose its efficacy, but this could be loosened.

We know that the promotion of the incentive to create works is paramount but this is somewhat contradictory. If one considers that in order for this development to succeed to would inevitably reduce people’s freedom to use them. If fair use would to be loosened so that if the user did not fall under the protection of the Act they could subjectively be assessed as to the use on whether the use was justifiable , and possible reconcile this contradiction.

101 Litman, J ‘The Public Domain’ Emory Law Journal (1990) PP 968-969

102 These are private study (s. 29), criticism or review (s. 30) and reporting current events (s. 30(2))

Page 20 of 26


CONCLUSION

Originality in copyright law is a contested issue. This dissertation has dissected the ingredients that flow from case law and revealed that it is fundamentally flawed and therefore creates ambiguity. I have not found a solution to this problem but what I am certain to assert in my findings is, why have a symbolic term to represent concepts that we cannot define or fully comprehend?

103 Statue does not define, case law is unclear and inconsistent with the application and therefore it has been left entirely for the Court to determine its content.

104

The first part of this dissertation was concerned with the Ladbroke test which I have revealed to be concerned with a mechanical definition as to whether copyright subsists concentrating on the aspect of whether sufficient labour had been expended. A consequence of such an application has meant that the public domain has suffered, restricted and suffocated by non deserving works succeeding in their copyright claim.

As the term of copyright extension has been increased the public domain is therefore reduced which means that the ‘…general public suffer a net loss unless it is shown that creation incentives outweigh the reduction.’

105

Unfortunately the low threshold that the mechanical analysis attracts, mean that works are not beneficial to the public domain and therefore the only one to benefit is the owner.

The latter part discussed the demands of the pre-requisite that the work must originate from the author. Putting aside the less than adequate attempt for a statutory definition, there can be no one answer. I think that work is intertextual and that to differentiate to where one work starts and where another begins is an impossible request. Works are all intertwined consciously or sub-consciously we derive our works from some other source,

103 Jung, C.J ‘Man and His Symbols’ (Ferguson Publishing Company, 1964) pg 21

104 Ricketson, S ‘The Concept of Originality in Anglo-Australian Copyright Law’ Copyright Society of

U.S.A.

, vol. 39, (1992) pg 267


Study’

European Intellectual Property Review (1991) pg 6

Page 21 of 26

Course Convenor: Alan Story - ‘Originality in copyright is a contested issue. Discuss’. - Sophie Read influence or interest we cannot apply a scientific analysis to the originality concept and segregate where each expressed idea arose from.

‘[W]here… a writer has published a book which complies and applies information available to all men, should that writer have a monopoly on the ideas in that book through a copyright, issued merely because the words used were the author’s own?’ 106

106 Lee v. Runge 404 U.S 887 (1971), Dissenting opinion by Justice Douglas

Page 22 of 26


Bibliography

Books:



Boden, A

‘Dimensions of Creativity’

(Bradford, 1996)



Davis, J ‘Intellectual Property Law’ (Oxford University Press 2 nd

Edition, 2005)



Deazley, R ‘On the Origin of the Right to Copy: Charting the Movement of

Copyright Law in the Eighteenth Century Britain (1695-1775)’ Oxford

University Press 2004)



Gaines, J

‘Contested Culture: The Image, The Voice, and the Law’

(BFI

Publishing’s, 1991)



Halbert, D ‘Resisting Intellectual Property’ (London and New York: Routledge,

2005)



Jung, C.J

‘Man and His Symbols’

(Ferguson Publishing Company, 1964)



Lessing, L

‘The Future of Ideas’

(Vintage Books, 2002)



Lionel, Bentley, Sherman


(Oxford University Press,

2002)



Sherman & Strowel

‘Of Authors and Origins’

(Clarendon Press Oxford, 1994)



Sharnol, T ‘Originality: A Popular Study of the Creative Minds’ (T. Werner

Laurie LTD, 1917)



Torremans, P


(Oxford University Press 4 th

Edition,

2005)

 Vaver, D ‘

Copyright Law: Essentials of Canadian Law’ (Irwin Law 2002)

Articles:

 Baade, P ‘Photographer’s Rights: Case for Sufficient Originality Test in

Copyright Law’

John Marshall Law Review (1996)

Page 23 of 26


 Boyd, S ‘Deriving Originality in Derivative Works: Considering the quantum of

Originality needed to attain copyright protection in a derivative work’

Santa

Clara Review (2000)

 Corbett, S ‘A Human Rights Perspective On The Database Debate’

European

Intellectual Property Review (2006)

 Dreier & Karnell ‘Originality of Copyrighted works: Originality of the copyright work A European Perspective’

Copyright Society of the U.S.A

., vol. 39, (1992)

 Edwards, S ‘Letter Term of Copyright’

European Intellectual Property Review

(1995)

 Foucault, M ‘What is an Author?’ (1979)

 Jaszi, P ‘Towards a Theory of Copyright: The Metamorphoses of “Authorship”

Duke Law Journal (1991)

 Jaszi, P., Woodmansee, M ‘Report: Intellectual Property and the Construction of

Authorship’ – ‘The Genius and the Copyright: Economics and Legal Conditions of the Emergence of the Author’ Eighteenth Century Studies (1984)

 Karjala, D ‘Comment of US Copyright Law Professors on the Copyright Office

Term of Protection Study’ European Intellectual Property Review (1991)

 Litman, J ‘The Public Domain’

Emory Law Journal (1990)



Ricketson, S ‘The Concept of Originality in Anglo-Australian Copyright Law’

Copyright Society of U.S.A.

, vol. 39, (1992)



Sherwood-Edwards, M ‘Term of Copyright’ European Intellectual Property

Review’ (1995)

 Turrell, E ‘The 21 st

Century Journalist’ Entertainment Law Review (2006)

 Wei, G ‘Telephone Directory and Database: The Policy at the Helm of Copyright

Law and a Tale of Two Cities’

Intellectual Property Quarterly (2004)

Page 24 of 26


Newspaper Articles:

 Glaister, D

‘Revolutionary Theory Shows Beethoven Pinched his famous tunes’

The Guardian (London) 11/05/1996

 McMahon, B

‘Italians protect Panettone by copyrighting the recipe’

The

Guardian (London) 6/12/2005

Internet Resources:

 www.klsipresources.ac.uk

:

J, Sotomi

‘Originality in Copyright: A Contested Issue.’(2004/2005)

-Accessed on 10/01/2006

 www.klsipresources.ac.uk

:

Hoare, I ‘Originality in Copyright Doctrine’ (2000/2001)


 www.bu.edu/law/news/ip/papers :

Littrell, R

‘Towards a Stricter Originality Standard for Copyright Law’


107

 www.arasite.org/barthes.html

:

‘Reading Guide to selection from Barthes, R (1971) ’ (London: Fontana Press)


 www.copyright.gov/register/literary.html

:

‘Copyright: Literary Works’

United States Copyright Office (2006)


 http://www.askoxford.com/conciseoed/original?view=uk :

-Accessed 13/02/06

 http://aix1.uottawa.ca/~dgervais/publications/Feist%20Article%20(PDF).pdf

:

Gervais, D ‘Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law’

(2002)

-Accessed 12/03/06

107 Please note that the date of this publication is unknown.

Page 25 of 26


Cases:



Bleistein v. Donaldson Lithographic Co 23 S. Ct 298 1903



Burrow-Giles Lithographic Co. v Sarony Co. 17 F 591 1883



G.A Cramp & Sons Ltd. v. Frank Smythson Ltd. [1944] AC 329



H Blacklock Co v. C. Arthur Pearson Ltd 2 CH 376 (1915)



Interlego AG v. Tyco Industries Inc [1988] 3 All ER 949



Ladbroke (Football) Ltd v. William Hill (Football) Ltd [1964] 1 All ER 465



Sarony v. Burrows-Giles Lithographic Co. 17 F 591 (S.D.N.Y 1883)



Feist Publications, Inc v. Rural Telephone Services co. Supreme Court of the US

499 U.S 340 (1991)



University of London Press Ltd v. University Tutorial Press Ltd [1916] 2 Ch 601



Walter v. Lane [1900] AC 539

Statute:



Copyright, Designs and Patents Act 1988



Copyright Act (amendment) 1865

108



Statute of Anne 1710

European Law:



Duration of Copyright and Rights Performance Regulations 1995 SI 1995/3297

Software Directive 91/250/EEC



Database Directive 96/9/EC

108 The American Constitution.

Page 26 of 26

Money for nothing and your copyright protection

Intellectual Property Law

(LW556) Dissertation:

‘Money for Nothing and your

Copyright Protection for Free!’

2005-2006

SOPHIE READ

CONTENTS

Part One

Part Two

Abstract

Part One

Part Two

Bibliography

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Money for nothing and your copyright protection

Intellectual Property Law

(LW556) Dissertation:

‘Money for Nothing and your

Copyright Protection for Free!’

2005-2006

SOPHIE READ

CONTENTS

Part One

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Abstract

Part One

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Bibliography

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