Term ‘Originality’ with reference to Copyright Law

In Newspaper Licensing Agency Ltd v Meltwater Holding BV (CA), [2012] Bus LR 53, it was held as under:

As Peterson J said in University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601, 608–609 (approved by the House of Lords in Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273, 277–278, 285 and 291):

“The word ‘original’ does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of ‘literary work’, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in original or novel form, but that the work must not be copied from another work—that it should originate from the author.”

Originality involves the application of skill or labour in the creation of the work, Interlego AG v Tyco Industries Inc [1989] AC 217, 259–263. The skill or labour need not be directed to the creation of particular modes of expression; it can be deployed in the selection or choice of what should be included in the work. Thus copyright protection is available to verbatim reports of interviews and public speeches: see Walter v Lane [1900] AC 539 and Express Newspapers plc v News (UK) Ltd [1990] 1 WLR 1320.

In a Leading Judgment of the Supreme Court of India-Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1, while discussing the issue of originality in relation to the Copyright Act, 1957, it was held as under:

The word “original” does not mean that the work must be the expression of original or inventive thought. The Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and in the case of literary work, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work—that it should originate from the author; and as regards compilation, originality is a matter of degree depending on the amount of skill, judgment or labour that has been involved in making the compilation. The words “literary work” cover work which is expressed in print or writing irrespective of the question whether the quality or style is high. The commonplace matter put together or arranged without the exercise of more than negligible work, labour and skill in making the selection will not be entitled to copyright. 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.

The Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada, (2004) 1 SCR 339 has noticed the competing views on the meaning of “original” in copyright law wherein some courts have held that a work which has originated from an author and is more than a mere copy of a work, is sufficient to give copyright. This approach is held to be consistent with the “sweat of the brow” or “industriousness” standard of originality on the premise that an author deserves to have his or her efforts in producing a work rewarded. Whereas the other courts have held that a work must be creative to be original and thus protected by the Copyright Act, which approach is consistent with a natural rights theory of property law; however, it is less absolute in that only those works that are the product of creativity will be rewarded with copyright protection and it was suggested in those decisions that the creativity approach to originality helps ensure that copyright protection is extended to the expression of ideas as opposed to the underlying ideas or facts. The Court has also noticed that those cases which had adopted the “sweat of the brow” approach to originality should not be interpreted as concluding that labour, in and of itself, would be a ground for finding of originality.

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