Threshold of originality
Encyclopedia
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
ed. It is used to distinguish works that are sufficiently original
Originality
Originality is the aspect of created or invented works by as being new or novel, and thus can be distinguished from reproductions, clones, forgeries, or derivative works....
to warrant copyright protection from those that are not. In this context, "originality" refers to "coming from someone as the originator/author" (insofar as it somehow reflects the author's personality), rather than "never having occurred or existed before" (which would amount to the protection of something new, as in patent protection).
The "sweat of the brow" doctrine
Some countries grant copyright protection based on how much labour and diligence it took to create a work, rather than or in addition to how original a work is. This is referred to as the "sweat of the brow" doctrine in relation to the idiomIdiom
Idiom is an expression, word, or phrase that has a figurative meaning that is comprehended in regard to a common use of that expression that is separate from the literal meaning or definition of the words of which it is made...
, "the sweat
SWEAT
SWEAT is an OLN/TSN show hosted by Julie Zwillich that aired in 2003-2004.Each of the 13 half-hour episodes of SWEAT features a different outdoor sport: kayaking, mountain biking, ice hockey, beach volleyball, soccer, windsurfing, rowing, Ultimate, triathlon, wakeboarding, snowboarding, telemark...
of one's brow".
The sweat of the brow doctrine has been recognized at various times in the United Kingdom, Canada, Australia, and elsewhere. The 1900 UK case Walter v. Lane
Walter v. Lane
Walter v. Lane [1900] AC 539, was a judgement of the House of Lords on the question of Authorship under the Literary Copyright Act 1842. It has come to be recognised as a seminal case on the notion of originality in copyright law.-Facts:...
ruled that the copyright of an account of a speech transcribed by a reporter belonged to the newspaper he worked for because of the effort it took to reproduce his spoken words.
Courts in the United States have rejected this notion in Feist Publications v. Rural Telephone Service
Feist Publications v. Rural Telephone Service
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 , commonly called Feist v. Rural, is an important United States Supreme Court case establishing that information alone without a minimum of original creativity cannot be protected by copyright...
(1991) and Bridgeman Art Library v. Corel Corp.
Bridgeman Art Library v. Corel Corp.
Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 , was a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack...
(1999). In these cases, the courts asserted that originality was required for copyright protection. Since the Feist decision, many common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
countries have moved towards applying a similar standard. In Canada, for example, the court in Tele-Direct (Publications) Inc. v. American Business Information Inc. (1997) concluded that compilations of data must embody originality and creativity in order to be copyrighted.
The European Union recognizes a sui generis
Sui generis
Sui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
right for databases and compilations, which is distinct from copyright, but offers many of the same protections.
United States
In United States copyright lawUnited States copyright law
The copyright law of the United States governs the legally enforceable rights of creative and artistic works under the laws of the United States.Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution...
, the principle of requiring originality for copyright protection was invoked in the 1991 ruling of the United States Supreme Court in Feist Publications v. Rural Telephone Service
Feist Publications v. Rural Telephone Service
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 , commonly called Feist v. Rural, is an important United States Supreme Court case establishing that information alone without a minimum of original creativity cannot be protected by copyright...
. The court opinion stated that copyright protection could only be granted to "works of authorship" meeting this minimum threshold of originality. As such, mere labor, if not original, was not copyrightable. This legal interpretation was derived from the Copyright Clause
Copyright Clause
Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:- Other Terms :This clause is also referred to as:* Copyright and Patent Clause* Patent and Copyright Clause...
of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, which grants Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
the power to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." This requirement sets a very low bar for originality under U.S. law. For example, the expression of some obvious methods of compilation and computation
Computation
Computation is defined as any type of calculation. Also defined as use of computer technology in Information processing.Computation is a process following a well-defined model understood and expressed in an algorithm, protocol, network topology, etc...
, such as the Yellow Pages
Yellow Pages
Yellow Pages refers to a telephone directory of businesses, organized by category, rather than alphabetically by business name and in which advertising is sold. As the name suggests, such directories were originally printed on yellow paper, as opposed to white pages for non-commercial listings...
or blank forms, cannot receive a copyright (demonstrated in Morrissey v. Procter & Gamble). However, if such works contain some copyrightable elements—e.g. a paragraph describing the Yellow Pages
Yellow Pages
Yellow Pages refers to a telephone directory of businesses, organized by category, rather than alphabetically by business name and in which advertising is sold. As the name suggests, such directories were originally printed on yellow paper, as opposed to white pages for non-commercial listings...
, or random designs on the blank forms—then those elements can receive copyright protection.
Reproductions of public domain works
The requirement of originality was also invoked in the 1999 United States District CourtUnited States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
case Bridgeman Art Library v. Corel Corp.
Bridgeman Art Library v. Corel Corp.
Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 , was a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack...
In the case, Bridgeman Art Library
Bridgeman Art Library
The Bridgeman Art Library, based in London, Paris, New York and Berlin, provides one of the largest archives for reproductions of works of art in the world...
questioned the Corel Corporation's rights to redistribute their high quality reproductions of old paintings that had already fallen into the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
due to age, claiming that it infringed on their copyrights. The court ruled that exact or "slavish" reproductions of two-dimensional works such as painting
Painting
Painting is the practice of applying paint, pigment, color or other medium to a surface . The application of the medium is commonly applied to the base with a brush but other objects can be used. In art, the term painting describes both the act and the result of the action. However, painting is...
s and photograph
Photograph
A photograph is an image created by light falling on a light-sensitive surface, usually photographic film or an electronic imager such as a CCD or a CMOS chip. Most photographs are created using a camera, which uses a lens to focus the scene's visible wavelengths of light into a reproduction of...
s that were already in the public domain could not be considered original enough for protection under U.S. law, "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original".
Although the court claimed that their copyright claims would fail even in the United Kingdom
Copyright law of the United Kingdom
The modern concept of copyright originated in the United Kingdom, in the year 1710, with the Statute of Anne.The current copyright law of the United Kingdom is to be found in the Copyright, Designs and Patents Act 1988 , as amended...
where labor and investment
Investment
Investment has different meanings in finance and economics. Finance investment is putting money into something with the expectation of gain, that upon thorough analysis, has a high degree of security for the principal amount, as well as security of return, within an expected period of time...
in time in the creation of a work can be enough for one to be considered original, whether this applies to reproductions of public domain works is inconclusive.
Germany
German copyright law
German authors' right or Deutsches Urheberrecht is codified in the Gesetz über Urheberrecht und verwandte Schutzrechte ....
; the "Schöpfungshöhe" (height of creation) can classify copyrightable works into two classes, a design, or anything else (such as a literary work). While the threshold (which is reached even by simple creations, known as "Kleine Münze", German
German language
German is a West Germanic language, related to and classified alongside English and Dutch. With an estimated 90 – 98 million native speakers, German is one of the world's major languages and is the most widely-spoken first language in the European Union....
for "Small change") is low, the requirements for design, works that have a "purpose" (such as brand identification
Logo
A logo is a graphic mark or emblem commonly used by commercial enterprises, organizations and even individuals to aid and promote instant public recognition...
), are set much higher, as such works can be protected by the lex specialis
Lex specialis
Lex specialis, in legal theory and practice, is a doctrine relating to the interpretation of laws, and can apply in both domestic and international law contexts. The doctrine states that a law governing a specific subject matter overrides a law which only governs general matters...
law for design patents ("Geschmacksmustergesetz") or by trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
laws. Only design creations that are very high above the average are considered as "works of applied art
Applied art
Applied art is the application of design and aesthetics to objects of function and everyday use. Whereas fine arts serve as intellectual stimulation to the viewer or academic sensibilities, the applied arts incorporate design and creative ideals to objects of utility, such as a cup, magazine or...
" and so granted copyright. As an example in case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
, the logo of the German public broadcaster ARD
ARD (broadcaster)
ARD is a joint organization of Germany's regional public-service broadcasters...
, is not considered protectable under German copyright law.
Pre-positioned recording devices
Security cameras, webcamWebcam
A webcam is a video camera that feeds its images in real time to a computer or computer network, often via USB, ethernet, or Wi-Fi.Their most popular use is the establishment of video links, permitting computers to act as videophones or videoconference stations. This common use as a video camera...
s, camera trap
Camera trap
A camera trap is a remotely activated camera that is equipped with a motion sensor or an infrared sensor, or uses a light beam as a trigger. Camera trapping is a method for capturing wild animals on film when researchers are not present, and has been used in ecological research for decades...
s and other pre-positioned recording devices capture whatever happens to take place in their field of view. This raises the question whether their recordings are an original and therefore copyrighted work.
With respect to United States law, Stephen M. McJohn writes:
The U.S. Copyright Office has taken the position that "in order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable."
Under New Zealand law, according to Susy Frankel:
Frankel concludes that, under New Zealand law, "a security camera film may not reach the requisite originality threshold, but each case must be assessed on its facts."
In Canada, David Vaver has expressed the opinion that "whether scenes taken by an automatic surveillance camera are authored by anyone is doubtful: the person responsible for positioning the camera is no Atom Egoyan
Atom Egoyan
Atom Egoyan, OC is a critically acclaimed Armenian-Canadian stage director and film director. Egoyan made his career breakthrough with Exotica...
. Such
authorless films may have no copyright at all". Vaver's comment criticized the decision of the English Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
in the case of Hyde Park Residence Ltd v. Yelland from the year 2000, in which the court treated images from a security camera videotape as copyrighted and concluded that their publication in a newspaper was not covered by fair dealing
Fair dealing
Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, which is found in many of the common law jurisdictions of the Commonwealth of Nations....
.
In the law of continental European countries, according to Pascal Kamina, there is "little doubt that 'works' such as security camera videos would not satisfy" the requirement of originality.