ORIGNALITY : LITERARY, DRAMATIC, MUSICAL,

AND ARTISTIC WORKS

INTRODUCTION
Perhaps the most well-known requirement that must be satisfied for
copyright protection to arise is that the work be original. It should be noted that
this only applies to literary dramatic, musical, and artistic works. In contrast, there
is no need for entrepreneurial works (sound recordings, films, broadcasts and
cable programmes, and typographical arrangements to be original for them to
qualify for protection. Instead the 1988 Act declares that copyright only subsists to
the extent that such works are not copied from previous works. (We look at this in
the following sect ion.)
In order for a literary, dramatic, musical or artistic work to be protected by
copyright it must be original.10 The originality requirement, which has been a
general Statutory requirement since 1911,11 sets a threshold that limits the subject
matter protected by Copyright law. It also functions to limit the duration of
protection it protection. It does this by preventing existing works from being the
subject of further copyright

protection in the absence of some additional

contribution since this function could be achieved by requiring that the work must
not already exist (as is the case with entrepreneurial works), it seems that the
originality requirement is intended to do something more. What this is, however,
is unclear.
It is very difficult if not impossible to state with any precision what
copyright law means when it demands that works be original. This uncertainty has
been exacerbated by the fact that as part of the harmonization of copyright law in
Europe, a new concept-that of the authors own intellectual creation is now used
in the UK to determine the originality of databases and
arguably also computer programs and photographs .
The meaning that is given to originality in copyright law is somewhat
different from the way it is construed in other contexts. For the purposes of
copyright law, originality does not mean that the work is inventive, novel or
unique.5 Instead, when copyright says that a work must be original, this means
that the author must have exercised the requisite labour, skill, or effort in
producing the work. While the novelty requirement in patent law focuses on the
relationship between the invention and the state of the art, the originality

examination is more concerned with the relatIonsh1 between the creator and the
work. More spastically in determining whether a work is original, copyright law
focuses on the input-the labour, skill or effort-that the author contributed to the
resulting work. Before looking in more detail at originality determined, it is
necessary to make a number of preliminary remarks.
3.1 PRELIMINARY ISSUES
(i)

The first point to note is that in most cases the requisite labour, skill, and

effort that is needed for a work to be original will be exercised in the way the
work is expressed: in the way the paint is applied the words are chosen and
ordered, ideas executed, or the clay moulded. However, the originality of a work
may arise in the steps preceding the production of the work (in the pre-expressive
stage).8 That is, the labour that confers originality on a particular work may arise
in the selection of the subject matter or the arrangement of the image that comes
to be embodied in the painting. In other cases, such as with respect to literary
compilations the courts will consider the footwork involved in discovering the
information, or the selection or choice of the materials that are later embodied in
the work. This has been particularly important in relation to tables and
compilations.
(ii) It is important to appreciate that the question of whether a work is original
often depends on the particular cultural, social, and political context in which the
judgment is made. In part this is because originality turns on the way the labour
and the resulting work are perceived by the courts. One of the consequences of
this is that what is seen as original may change over time. A good example of this
is provided by photography. When invented in the 1840s, photography was seen
as a non-creative (and non-original) mechanical process whereby images were
produced by exposing chemically sensitive materials to light. In the late
nineteenth century, however, photography came to be seen as an artistic activity.
As a result, photographs came to be seen as creative and thus potentially original
works.2 Similar changes recently occurred in relation to the artistic works of
Australian Aboriginals.
The historical specificity of the originality examination means that we
must be careful as to the conclusions we draw from earlier decisions. This can be
seen for

17 To use Benjamin Kaplans terminology in An Unhurried View of Copyright

(l965t, the test in copyright is psychological, whereas in patents it is historical.
On another reading, three different factors have been taken into account:
the relative importance of each depending on the subject matter in question. In
certain situations, the courts have considered the quality of the labour. In other
situations the courts have focused upon the quantity of labour that has been
invested in the creation of the work. Where the labour is expended on a preexisting work, the courts have paid attention to the effect that the labour has on the
underlying work.
19 For example in Kelly v. Morris (1866) 1 Equity Cases 697 the author needed to
make time consuming enquiries and to write down the results with painstaking
accuracy.
20 B. Edelman, Ownership of the Image: Elements for a Marxist Theory of Law
(1979); j. Gaines, Contested Culture: The Image, The Voice and the Law (1992).
21 See B. Sherman, From the Non-original to the Aboriginal, in Sherman and
Strowell.
example, if we look at the 1900 decision of Water v Lane. In this case it was held
that a newspaper report of an oral speech given by Lord of Rosebery, transcribed
by a reporter from the talk, was an original work. This was because the reporter
exercised considerable labour, skill and judgment in producing a verbatim
transcript of the speech. More specifically, the Court said that the report was
original since taking down the words of a person who spoke quickly was an art
requiring considerable training. It is possible that changes Since 1900, notably the
emergence of the tape recorder, may mean that the transcription of a speech will
no longer be treated as labour that gives rise to an original work.
(iii)

The next point to note is that the originality threshold has been set at a

very low level. It may come as a surprise for some to learn that the courts have
accepted a original such things as railway timetables and exam papers (which
were drawn Iron) the stock of knowledge common to mathematicians, produced
quickly and included questions similar to ones which had been previously asked
by other examiners) One of the consequences of the originality standard being set
at a low level is that there have been relatively few instances where subject matter
has been excluded on the basis that it was non-original. Most of the problems that
have arisen have been in rd1mtinii to tables and compilations, derivative works

(that is, works which incorporate material copied from another source), and
industrial designs. Originality may be important, however, in so far as it plays a
role in ascertaining whether a substitution part of a work has been taken (which is
sometimes used to establish infringement). Originality ha also played an
important role in deciding whether new classes of works (photography in the
nineteenth century and more recently Aboriginal art) ought to be protected by
copyright law. There is also a possibility that the growing judicial suspicion about
the over-extension of copyright may mean that originality conies to be used as a
way oh restricting the scope of the subject matter protected by copyright law.
(iv)

Non-division of the work. One of the most important and at the same time

one of the most neglected issues in copyright law concerns the nature of the
copyright work: particularly as to the way the boundaries of the work are to he
determined. While we discuss this in more detail later, 23 it is important to note
that, while in aim infringement action it is possible to divide a work into protected
and non-protected parts, when considering whether a work is original it is not
possible to divide the work into elements. That is, when considering whether a
work is original1 the work must be
22

Walter v. Lane [19001 AC 539. This was decided under the 1842 At and

there was no specific requirement of originality it has been treated as being

undeniably good law. See Express v News UK (1990) FSR 359 (Browne
Wilkinson V-C).
23

The court also noted that considerable skill had to be invested in learning

shorthand and that judgment was exercised in deciding how to convert spoken
words anti performance to written sentences, with suitable grammar. On the skills
of the journalist see Water v Lane (1900) AC 539, 551-2 (Lord Davey) 554 (Lord
James of Hereford).
24

University of London Press v. University Tutorial Press (1916) 2 Ch 209

Although widely referred to Peterson J s comment that the work should originate
from the author offers little assistance when differentiating original and nonoriginal works.
25

See below at pp. 160-2. 165-73.

Excited as whole. This was made clear in Ladlyroke V. William II where he

question are as to whether football pool coupons (which listed matches to be
played and offered a variety at arranged in sixteen categories were original

compilations on the basis that the expressive form of the coupons inevitably fol
lowed from the commercial decisions as to the bets which should be offered the
appellants argared that the coupons were not original the house of Lords rejected
these claims according to lord Reid it was incorrect to artificially divide the
inquiry up on the one hand into the commercial decisions about which bets to
offer and on the other the form and arrangement of the table the selection of
wagers and their presentation was so interconnected as to be inseparable
consequently it was inappropriate to dissert the labour skill and Judgment.
3.2

DETERMINING WHETHER A WORK IS ORIGINAL

As we explained above when copyright says that a work must be original

this means that the author must have exercised the requisite labour skill or effort
in producing the work. While patent law is concerned with the relationship
between the invention and the information in the public domain the originally
examination is more concerned with the relationship between the creator and the
work. This means that in determining whether a work is original copyright law
focuses on the input the labour skill or effort that the author contributed to the
resulting work.
In creating a work an author will normally exercise labour skill and effort
in a number of different ways for example in producing a portent a painter may
exercise ingenuity time and effort in the choice of subject matter who where in
what pose against what background in ensuring

that the sitter is relaxed:

stretching the canvas and making the frame developing new techniques of
painting in ensuring that the paints and materials used are environmentally
friendly in the mixing of the colours in choosing a title for the work and in
explaining the painting to critics and reviewers. While each of these steps may
help to make the painting a success only some of them will be taken into account
in deciding whether the resulting work is original. The reason for this is as Lord
Oliver said in Interlego only certain kinds of skill labour and Judgment confer
originality.

28

Thus while it is clear that the originality arises through the labour

skill, and effort exercised by the creator and the impact that this has upon the
work not all types of labour skill and effort will give rise to an original work. The
difficult task is distinguishing the labour skill and effort that will give rise to an
original from that which will not.

In part these difficulties arise because the effort skill or Judgement which
is needed to confer originality on a work cannot be defined in precise terms. This
is because originality must depend largely on the facts of the case and must in
each case be very
26.

(1964) 1. All FR 465, 469 (Lord Reid) Football League V. Littlewoods

(1959) Ch 637, 654 Bookmarkers Ajtertioon V Gilbert (1994) FSR 723.

27.

Ladbroke v. William Hill (1964) 1. All Er 465 (Lord Reid)

28.

Interlego v. Tyco Industries (1989) AC 217, 268 (Lord Oliver)

much a question of degree. As a result it is very difficult to explain

originality in terms at any overarching principles or rules. Gives this perhaps the
best approach is to took at originality in terms of the types of work in question. To
this end we will look at the ways the courts approach originality in relation to the
following types of works.
(i)

new works

(ii)

derivative works

(iii)

tables and compilation

(iv)

databases computer programs and photograph and

(v)

computer generated works.

3.2.1

New works
The first situation we wish consider is where a new work is created.

30

In

particular we wish to consider the situation for example where inspired by a

particular event a person sits down at their desk and writes a poem or a song. As in
these circumstances the work clearly emanates from the author, there are unlikely
to be any problems in showing originality. The one exception to this is where the
labour is trivial or insignificant. While in most cases this principle is
uncontroversial difficult issues arise in relation to artistic works. The reason for
this is that while in some contests the drawing or a straight line or a circle may be
regarded as trivial when painted by a Rothco or a picasso, it would (or at least
should )not be. This was in effect the position in British Northrop where it was
agrued that drawings of things such as rivets screws. studs a bolt and a lenght or
wire lacked originality because they were too simple. In rejecting the argument,
Megarry I said that he would be show to exclude drawings from copyright on the
mere score o simplicity or on the basis that they were of elementary or

commonplace objects.32 The courts have also been show to conclude that because
a literary work is small it lacks originality. 33
3.2.2

Derivative or copied works

The next type or creation of creation that we wish to consider are the so-

called derivative works that is works which are derived from or based upon preexisting works (whether or
29.

Macraillan k. Cooper (1923) 93 LIPC 113 (Lord Atkinson)

30.

While works are never created de novo, we have used term new works as a

way of distinguishing derivative works. It should also be noted that these

categories are not mutually exclusive there is no reason derivative work (or a
derivative work)
31.

Total information processing v.Daman (1992) FSR 191, 179 (mere linking

of three computer programs was created as unprotected by copyright)

Merchandising Corp.of America v. Harpbond (1983) FSR 32 (Simple face paint
was not an original artistic work)
32.

British Northrop v. Texteam Blackburn (1974) RPC57, 68 See also karo

Trade Mark (1977) RPC 255, 273 expect of the case of straight line drawn with a
ruler (a case of such barren and naked simplicity which would not be a very
promising subject for copyright.)
33.

In some cases where the resulting work is regarded as sufficiently creative,

the work may be very small extract of four lines from poem if Kipling v. Genatson
(1917-23) Macg. CC 203.
not they are protected by copyright law has long recognized that it is
important that authors

should be able t draw and build upon other works.

However in order to ensure that copyright works are not protected in perpetuity
which would otherwise be the case copyright imposes limits on the types of
derivative works that will be protected. To this end, authors can copy (or use) preexisting materials and still get copyright protection in the resulting work so long
as they bring about a material change to the raw material more specifically the
labour skill and capital must have imparted to the product some quality or
character which the raw material did not possess and which differentiates the
product from the raw material.

34

In so doing the law ensures that any copyright

that is acquired in a derivative work is distinct from the original work that is

incorporated into it.

35

The difficult question is deciding where to draw the line

between legitimate borrowing from existing sources and illegitimate copying.

It is very difficult to define what the something special is that distinguishes
original and non- original derivative works. In part this is because it is difficult to
describe in positives terms exactly what it is that the originality requirement
involves. Given this perhaps the best way to approach this issue is to focus on
those (limited) situations where changes made to the raw material have been held
to be non material and thus non original. Before looking at the situations where a
person exercises labour in the creation of a derivative work yet the resulting work
will not be original. It is necessary to make two preliminary comments.
It should be noted that copyright subsists in a derivative work even though
it may infringe copyright in the existing work.

36

This is because any copyright

that is acquired in a derivative work will be distinct from and subordinate to the
copyright in any prior original work which is incorporated into it. Provided that
the original work is still apparent in the new version both the maker of the new
version and any third- party copier will need the licence of the copyright owner of
the original.
It should also be noted that the requirement that the labour needs to
produce a materially different work for it to be original is unnecessary where the
same author produces a series of drawings or drafts. 37 As Nourse LJ explained:
What the Copyright Act requires is that the work should be the original
work of its author if, in the course of producing a finished drawing, the author
produces one or more
34.

Macmillan v. Cooper (1924) 40 TLR 186, 188, (1923) 93 LJPC 113,

Described in Interlego as perhaps the most useful exegesis on the issue of

originality.
35 .

It the original work is still apparent in the new version the licence of the

copyright owner of the original will be needed by both the maker or the new
version and any third party copier.
36.

See wood v. Boosey (1868) Lr 3 QB 223, 229 Redwood Music v. Chapell

(1982) RPC 109, 120; ZYX Music GmbH V. King (1995) 3 All Er 1,9-11 ef.
Ashmore v. Douglas Home (1987) (1987) FSR 553 (Judge Mervyn Davies denied
copyright protection to part of a play which was derived from an existing
copyright play on the grounds that the former was infringing material).

37.

Moreover it has been held where a drawing was made from a three

dimensional functional design such a drawing would be original if there was a

continuous design process between the creation of the three dimensional
functional object and the subsequent creation of the two- dimensional drawing
copying the three dimensional object. Marray Engineering v. Nicholas Cesare
(1997) unreported.)
Preliminary versions the finished product does not case to be his original
work simply because he adopts it without much variation or even it he simply
copies it from an earlier version. Each drawing having been made by him each is
his original work.38
With these general points in mind, we now turn to consider four situations
where derivative works have been held to be non- original. These are where.
(i)

the labour fails to bring about a change in the resulting work.

(ii)

the change in the resulting work is a result or a mechanical or automatic

precess.

(iii)

the change in the resulting work is non- material or

(iv)

the labour is of the wrong kind.

(i)

Where the labour fails to bring about a change in the resulting work. One

situation where a person may exercise a considerable amount of labour yet the
resulting work will not be original is where the labour fails to bring about any
change in the resulting work. This would be the case, for example where there is
a direct or slavish copy of another work or where a work is photocopied.

39

While

the tracing or copying of drawings especially technical drawings requires patience

skill labour as Lord Oliver said in Interlogo Copying per se however much skill or
labour may be devoted to the process cannot make a work original.

40

More

specifically he said a well executed tracing is the result of much labour and skill
but remains what it is, a tracing.

41

It is clear that the reason why tracing and

photocopying do not produce original works is not that there is no labour. Rather
it is that it is not the right type of labour.
(ii)

Where the change is a result of a mechanical or automatic process another

situation where that courts have suggested that a change made to a work will be
non material is where the change that occurs in the resulting work is a
consequence of a mechanical or automatic process. The defining feature of a
mechanical or automatic process being the absence of human input: the element

that underlies the originality examination for example in one case it was suggested
that the making of a chronological list which is automatic and only requires
painstaking accuracy would not of itself be original. The reason for this is that the
making of a chronological list requires
38

LA Gear v. Hi-Tech Sport (1992) FSR 121, 136 (Nourse Lj).See also

Biotrading and Financing Oy v. biohit (1996) FSR 393, 395 (not sufficient merely
to be owner of copyright in earlier drawings if later ones which are relied upon are
not significantly different) Cf. Rexnold v. Ancon (1983) FSR 662 (summary
Judgement refused in similar circumstances)
39.

British Northrop v. Texteam (Blackborn) (1974) RPC 57, 68 (a drawing

which is simply traced from another drawing is not an original artistic work)
Rexnold v. Ancon (1983) FSR 62, 664 (improbable that copyright would be given
to a mere tracing Davis (Holdings) v. Wright Health Group (1988) RPC 403, 409
(Casts made from models are not original) and 412 (tracing not original)
40.

Interlego AG v. Tyco Industries (1989) AC 217, 263.

41.

Ibid 262(no one would reasonably contend that the copy painting or

enlargement was an original artistic work in which the copier is entitled to claim
copyright)
no element of teste or selection judgement or ingenuity . 42 In another it was
held that the routine application of a formula to produce forecast dividends on
greyhound races was not sufficiently original.

43

In another case the photocopying

of an image (and enlarging it by 10 percent) was said to be wholly mechanical.

44

and thus lacking in originality.

It is possible to imagine other situations where the process of producing a
work may be so routine and formulaic that it is effectively a mechanical process
thus rendering it non original that is there may be other instances where the author
is so constrained in terms of the choice that he or she is able to exercise over the
resulting product. This may be the case, for example where the features express
some engineering principle,
function,

46

45

a computer program needs to achieve a particular

or in the drawing of functional objects. Gives the low threshold that

needs to be satisfied to show originality, it seems that a creator would only need to
exercise a very small degree of control over a work for it to be original. In this
context it should be noted that the courts have been reluctant to exclude artistic

works (which include technical drawings) on the basis that they are simple of
commonplace.
One question that remains unanswered in this context is whether the
digitization of a work (with no other changes) is sufficient to confer originality on
the resulting work. For example would the digital scanning of a novel or the
creation of a digital database from non digital sources give rise to an original
work? some commentators have suggested that the translation of a work into a
digital format (in the case of a literary work from a typographical character to
numerical token)

47

may give rise to an original work. While there can be no

doubt that the process of digitization does produce a product which is different it
is doubtful whether it would constitute a material change such as to confer
originality on the resulting work.
(iii)

Where the change to the resulting work is non material in some situations

originality has been denied where the labours of a creator fail to bring about a
material change in the resulting product. That is while the efforts of the author
may have led to a change in the resulting product the change (thus the labour) is
not regarded as sufficient to confer originality on the resulting conversely where
the change is material, the work will be original This approach has been used to
confer originality
42.

Football League v. Littlewoods (1959) Ch 637, 654 In relation to

indisputable facts (such as when the sun rises or sets) It was said that there is no
room for taste or judgement. There remains the element of choice as to what
information should be given: all that a table can do is state the facts accurately:
Cramp v. Smythson (1944) Ac 329, 339 (Viscount Simon)
43.

Greyhoud Services v Wilf Gilbert (Staffs) (1994) FSR 723.

44.

The Reject shop v. Robert Manners (1995) FSR 870,876.

45.

British Leyland v. Armstrong (1986) RPC 279, 2996 (Oliver Lj)

46.

Ibcos Computers v. Barclays Mercantile Highland Finance (1994) FSR

275
47.

Laddie et al para 20.67 suggest that it was akin to the copyright protection

given to the speechwriter in Walter v. Lane (1900) AG 539.

on new editions,
preexisting materials,

50

48

compilation anthologies translations

as arrangements of music,

51

49

adaptations of

and engravings in all these

cases the labour of the author not only produced a change it also produced what

was taken to be a material change in he raw material. This can be seen for
example in Macmillan v. Cooper where the Privy Council was called upon to
decide whether a selection of 20,000 words for a schoolboy version of a 40,000
word translation of Plutarch's book the Life of Alexander was original as Lord
Atkinson explained copyright could exist in such a selection is such labour skill
and capital had been expended sufficiently 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,

52

An important factor in the finding that the

selection was not original and thus not protected by copyright was that the process
of selection was motivated by a desire to exclude material which was of an
indecent or indelicate character and unfit for schoolchildren.

53

Such a process did

not required great knowledge sound judgement literary skill or taste to be brought
to bear upon the translation. 54 That is the reduction did not involve the application
of the something special that is needed to confer originality on the resulting work.
This decision can be usefully contrasted with Macmilan Publishers v.
Thomas Reed Publications.

55

The case turned on whether the publication of a

number of small local charts that contained an outline of the coastline as well as
relevant information (such as depth soundings buoys and geographical features )
were original More specifically the question arose as to whether the charts were
original given that they wee drawn the question arose as to whether the charts
were original given that they were drawn from and based upon Admiralty charts.
Unlike the labour which was used in Macmillan v. Cooper the High Court held
that the labour used in producing the simplified charts involved the appropriate
level of work and skill for the resulting work to be original.
48.

Black v. Murray (1870) Mag GCC 341, 355. Lord Kinloch held that to

create copyright in a new eviction alteration must be extensive and substantial;

additional notes must be not superficial or colorable but impart to the book a true
and real value over and above that belonging to the text .Although at has been
explained in the discussion of Walter v. Lane, there was no requirement of
originality under the Literary Property Act 1842, decisions there under have often
been cited in the context of works created after 1911. Blacklock v. Pearson (1915)
2 Ch 376.
49.

Byrne v. Statist co. (1914) 1 KB 622; Cummins v. Bond (1927) a Ch 167.

50.

Warwick Films v. Eisinger (1969) 1 Ch 508 (book comprising large

extracts from court transcripts was original because of editorial work addition and
omission of material etc.
51.

ZYX Music GmbH v. King (1995) 3 All ER 1 (appeal dismissed on other

grounds (1997) All ER 129) (transformation of ballad into disco or dance track
was original arrangement) See R. Arnold Performers Rights (1997) 171-4 But note
Hadley others v. Kemp (1999) EMLR 589 (contributions of performances not
relevant when assessing originality)
52.

Macmillan v. Cooper (1924) 40 TLR 186, 188; (1923) 93 LJPC 113.

53.

However the appellant had added marginal notes an introduction and a

chronological table. The Privy Council held that these were well chosen neatly
condensed sufficiently copious and accurate and must have required literary skill
taste, labour and judgement.
54.

Mar Millan v. Cooper (1924) 40 TLR 186.

55.

(1993) FSR 455. Mummery J explained On originality i find that this is a

case where sufficient work and skill have been done: both in the creation of the
simplified form of a work showing the outline of the coast and geographical
features and in the compilation of selected information such as depth soundings
geographical features, buoys and so on.
In this context it may be helpful to pause and ask what is it that
distinguishes the non- original reduction in Macmillan v. Cooper from the
simplification in Macmillan v. Reed that was held to be original. Some guidance
as to the way this question may be answered is offered in Macmillan v. Cooper
where the Privy Council distinguished the non- original reduction from a
(hypothetical) abridgment, which would have been original had it been carried
out. While the reduction of the Life of Alexander from 40,000 to 20,000 words
was not original the Privy Council said that the (hypothetical) process of
abridgment would have required some form of learning Judgement literary teste
and skill. 56 That is is lacked what the courts saw as the necessary skills to quality
for protection. Quoting from an early edition of Cosiger's Treatise on copyright
the Privy Council said the act of abridgment is an exertion of the individuality
employed in moulding and transfusing a large work into a small compass
Independent labour must be apparent and the reduction of the size and work by
copying some of its parts and omitting others does not do this.

57

In contrast the

Privy Council said that the reduction of the Life of Alexander from 40,000 to
20,000 works was non original because it lacked the exertion of the individuality
employed in mounding and transforming a large work into a small compass.
(iv) Where the labour is of the wrong kind. Another situation where an author
may exercise a considerable amount of labour and the work not be original is
where the type of labour used does not correspond to the type of work for which
protection is sought. This can be seen in Interlego where the Privy Council was
called upon to decide whether there was copyright in drawings for the childrens
building blocks known as Lego bricks. After Logos patents and designs in the
bricks expired in 1975, Lego sought to retain its monopoly over the bricks by
claiming that copyright existed in drawings produced in 1973. As these drawings
were based upon earlier drawings, the question arose as to whether the alterations
made in 1973 were sufficient to produce an original artistic work. The major
differences between the drawings concerned the sharpening of the outer edges of
the tubes on the brick, changes in tolerances and increase in the radii on the outer
edges of the knobs on the bricks from 0.2 to 0.3 mm. Of the changes made, only
the first was shown pictorially, the others by letters and figures 58.
While the Privy Council recognized that these changes were technically
significant and the result of considerable labour and expertise, they denied that
there was copyright it the later drawings. 59 The mere fact that the drawing took
skill and labour to
56.

MacMillan v. cooper (1923-4) 40 TLR 186, 187.

57.

Ibid.

58.

Interlego v. lyco Industries (1989) AC 217.

59.

Lord Oliver was happy to find that these drawings were not original.

Otherwise, Lego would have been able to maintain a perpetual monopoly by

continually revising the picture. This type of behavior, he noted, had been
disapproved of by the House of Lords in coca-Coin o. Trade Mark Application
(198l I WLR 695. It seems that Lord Oliver overlooked the fact that the pre- 1973
works were not protected by copyright and therefore that a competitor was free to
copy pre-1973 drawings (or models based on upon pre-1973 drawings)
prnduce did not flCeSsarily mean that it w therefore an original drawing. Lord

Oliver did not necessarily mean that it was therefore an original drawing. As Lord
Oliver explained (t) here must in addition be some element of material alteration
of embellishment which suffices to make the totality of the work an original work.
60

While Lord Oliver acknowledged that this could be a relatively small alteration,

he added the important rider that in the case of artistic works the change must be
visually significant. That is. to confer copyright the skill and labour must be
relevant to tic work in question, On the facts it was held that as the changes made
to the drawings were Primarily to the written specifications, this was not an
alteration of visual significance. As such, the drawings were not original. If this
principle IS applied in other Contexts, it may have important ramifications for
forms of appropriation art; that is where artists focus on the meaning rather than
the visual appearance of the work.62
3.2.3

Tables and compilations

In this section, we consider the way in which the originality of tables and
compilations has been approached. As we explained earlier, as a result of the
Database Directive the law in this area has recently undergone a number of
changes: notably, the introduction of a new standard of originality for databases.
While this topic is discussed below, it is first necessary to look at the way the
originality of tables and compilations has been dealt with in the past.
Over time the courts have used two different and largely inconsistent
approaches when determining whether tables and compilations are original. While
the approaches are similar in so far as they focus upon the labour exercised in the
creation of the work, they differ in terms of the type of labour that is needed for
the work to be original. In some cases, originality arises through the application of
the appropriate skill, labour, and effort in the creation of the work (the quality of
the labour used in creation of the work). More controversially, originality can also
arise through the application of a sufficient amount of routine labour (the quantity
of the labour used in creation of the work). We will deal with each in turn.
(i) Quality of the labour. The originality of tables and compilations may arise
through the application of the appropriate skill, labour, and effort in the creation of
the work (the quality of the labour used in creation of the work). It seems that the
requisite Labour may be employed either in the way the information to be
included in the compilation is selected, or the way that information is arranged.
For example, if we take the case of

60

Interlego v. Tyco Industries (1989) AC 217. This leads to the rather bizarre

conclusion that good reproductions are denied copyright but poor ones have
sufficient visually significant variation. This was explicitly stated by Lord Oliver
(19891 AC 217. For further discussion, see Ladies at, para. 3.38, p. 217.
61

Interlego v. Tyco Industries (1989) AC 217, 268 (Lord Oliver). of.

Interlego AG v. Croner Trading 25 IPR 65 (Fed. Crt. Australia). Visually

significant variations have been held to include changes of shape but not mere
changes of scale: Drayton Controls v. Honeywell Control Systems (1992) FSR
245, 260.
62

See B. Sherman, Appropriating the Postmodern Copyright and the

Challenge of the New (1995) 4 Social & Legal Studies 31 P. Anderson, On the
Legal Limits of Art (1994) Arts & Entertainment Law Review 70.
an edited collection originality may arise as a result of the way the author
to be included in the volume are selected or through the way the chapter are
origanized given that tables and compilation are similar to derivative works (a list
is after all made up from pre existing material) the comments made above about
the original it of derivative works apply here. Looking at the question negatively it
scams that a table or compilation would not be original where the selection and
arrangement is directly or slavishly copied from another work another situation
where a compilation would lack originality is where the resulting work is a
consequence of a mechanical automatic of formulaic process. The position would
be the same where the material to be included in a compilation was selected
automatically. The reason for this is that the defining feature of a mechanical or
automatic process is the absence of human input the element that underlies the
originality examination in one case it was suggested that the making of a
chronological list which is automatic and only requires painstaking accuracy
would not of itself be original.

63

reason for this is that the making of a

chronological list requires no element of taste or selection judgement or ingenuity.

64

On this basis it seems that where a list is organized alphabetically it would not

give rise to an original work (although originality may arise through the quantity
of labour used in creating the compilation)
(ii) Quantity of the labour. In certain situations the courts have accepted that
themere exercise of a substantial amount of routine labour may give rise to an
original work. For example, where a compiler spends a considerable amount of

time and effort creating a chronological list of television programmes or an

alchemically ordered list of layers, the resulting work will be original. That is,
even though in creating the table or compilation the author may not have
exercised the appropriate quality of labour, the work may nonetheless still be
original if the process of compilation involves a sufficient level of (mundane)
labour.
Where there is insufficient labour (and originality does not arise through
the exercise of requisite qualitative skill, labour, and effort), the resulting work
will not be original.67 For example, where the process of compilation involves
little effort or judgement and the effect is commonplace, the work will not be
treated as original. Thus the selection of seven tables at the front of a diary,
consisting of things such as days and dates of the year, tables of weights and
measures, postal information 68 was
63

In relation to indisputable facts (such as when the sun rises or sets), it was

said that there is no room for taste or judgment. There remains the element of
choice as to what information should he given all and J table can do is state the
facts accurately; Cramp v. Sniythson 119441 AC 329, 336 (Viscount Simon),
64.

Football League v. Littlewoods (1959) Ch 637, 654.

65

Ladbroke v. William Hill (1964) 1 All ER 465,478 (Lord Devlin).

66.

BBC v. Wireless League Gazette Publishing Co. [1926] Ch. 433;

Independent Tekvision Puhluatwns V lime Our [19841 FSR 64 Waterlow v. Reed

(1992) FSR 409; Dun d Bradstreet v. Typesetting Facilities (1992) FSR 320.
67

Exxon Corporation v. Exxon Insurance Consultants International (1982)

Ch 119.
68

Cramp v. Smythson (1944) AC 329 (Viscount Simon LC) (commonplace

information which is ordinarily useful and is commonly found prefixed to

diaries). Sec also Waylite Dairy CC v. First National Bank (1993) EIPR D-242
(no copyright in diary pages which lacked quality of individuality sufficient to
distinguish the work from the merely Commonplace)
held to be non-original. Similarly in another case a compilation of a local
timetable chewing a selection of trains to and from a particular town that was
made from official railway timetables was held to be non-original.69 In these
circumstances the difficult question is knowing how much labour needs to be
exercised for the resulting work to be original.70

The willingness to accept that a substantial amount of routine labour may

give rise an original work is usually explained in terms of the fact that defendants
outght not to he able to avail themselves of the labour and expense which a
claimant invested in the production of a work.71 Instead of asking whether the
work is original and thus protectable. Where the courts have focused on the
quantity of the labour exercised in the creation of the work they have tended to
Start from the premises that any Labour or effort that a claimant exercised in the
production of work ought to be protected (so long as it reaches the requisite
quantitative threshold). This is rejected in the mam: what is worth copying is
prima facie worth protecting One issue that has yet to he answered in this context,
to which we will return shortly, relates to the impact that the new standard of
originality which As flow to be applied to databases: namely, of authors own
intellectual creation will have upon these decisions.
The position in the UK where the exercise of non-creative labour can give rise to
an original work can be contrasted with the position in other jurisdictions such as
Germany (where case law suggests that there is a requirement of some minimal
degree of creativity) and France (where originality is said to require the imprint
of the authors personality on the work or an intellectual contribution). The UK
position is also at odds with the position in the USA where, as the Supreme Court
pointed out in the Ferst decision, a work must have at least a minimal degree of
creativity to be protected.73 In relation to the question of the originality of a whitepage telephone directory, the Supreme Court held that since facts were not
created, the names and numbers were not themselves copyrightable. Moreover,
while the collection might have been original had the selection or arrangement
involved some minimal creativity as the directory in question had been selected by
area and arranged alphabetically it did not meet that minimum threshold.
It should be noted that routine labour has only been used to confer
originality on the resulting work in the UK in a limited number of situations. In
particular, it has
69

Leslie v. Young[1894] AC 335.

70

See Cramp v. Smithson [1944) AC 329; Greyhound Racing Association v.

Shallis [1923-8) Mac G CC 370 370; Total Information Processing Systems v.

Daman [1992 FSR 171 (linking of three computer programs was not a

compilation). Cf. lbcos Cpmputer S v. Barclays MercantiLe Highkind Finance

[1994) FSR 275. 290.
71

Weatherby and Sons v. Interna Honal Horse Agency and Exchange (1910)

2 Ch 297. 3035; Waierlow Directories v. Reed Information Services [1992) FSR

409.
72.

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

(Peterson l, This can be justified on the basis that if a person copies an existing
work, that person has demonstrated that the work incorporated skill or labour
since otherwise it would not be worth copying. lithe aphorism were taken at lace
value, it would prevent defendants from asserting that they were entitled to copy
the claimants work on the basis that it was not original.
73.

Feist Publications v. Rural Telephone Service to. 499 US 34(1 (1991).

only been applied to a limited category of works: largely to tables and

compilations of things such as maps, guidebooks. street directories, dictionaries,

works and selected of poems More specifically the cases which have accepted that
originality can arise through the exercise of a sufficient degree of labour have
tended to focus on the amount of labour exercised in the amount of materials to be
included in tables a compilations that is. they take place in the pre-expressive
rather than the express stage.75
3.2.4 Databases. photographs. and computer programs
As we have already noted, the European Council has begun to harmonize
copyright law within Europe. The Software and Database Directives require that a
computer program or database can only be protected by copyright where it is the
author intellectual creation.76 A similar test was also introduced for photographs
in the Duration Directive. While all three Directives require a similar standard of
originality for the respective works, in implementing the Directives the UK
Government responded differently. In implementing the Software and Duration
Directives the Government did not consider it necessary to amend the Copyright
Act in relation to software or photographs. As was the case before the Directives,
such works are protected if they are original. By contrast, in implementing the
Database Directive, the UK Database Regulations explicitly amended the
originality requirement of the 1988 Copyright Act in relation to databases to
include the new criterion of the

authors own intellectual creation79 In particular, section 3A(2) says that a

literary work consisting of a database is original if, and only if by reason of the
selection or arrangement of the contents of the database the database constitutes
the authors own intellectual creation.
This inconsistent implementation of the EU Copyright Directives has left the
current law unclear. Perhaps the most plausible reading of the current situation is
that the only change that has taken place in relation to originality is in respect of
databases and that the standard for other works remains the same. 80 The fact that
no changes were
74.

Macmillan v. Cooper (1924) 40 TLR 186, 189.

75.

Cramp v Smythson 1I9I AC 329, 330.

76

Software Directive, Art. 1(3) (a computer program shall be protected if it

is original in the sense that it is the authors own intellectual creation. No other
criteria shall be applied to determine its eligibility for protection: Database
Directive, Art. 3(1)
77.

It is arguable that this European standard is also required of photographs

by Art. 6 of the Duration Directive, which states that photographs which are
original in the sense that they are the authors own intellectual creation shall be
protected in accordance with Art. 1. No other criteria shall be applied to determine
their eligibility for protection.
78. Germany which introduced sec. 69(a) into its copyright law explicitly repeats
the wording 1 the Directive. G. Schricker, Farewell to the Level of Creativity
in German Copyright Law? (1995)261 C 41 CDPA s. 3A(2), introduced by
Databases Regs. 1997, SI (1997) 3032, r. 6.
80

This view is buttressed by the existence of transitional provisions which

make it clear that databaSC

which are already protected by copyright on 27 Mar. 1996, but which would not
reach the standards required under the Directive, continue to enjoy protection until
the end of the copyright term: Database Regs. 1997, SI 1997/3032, r. 29 (1).
made to the standard of originality for computer programs and photographs seems
to suggest that it was thought that the position in the UK prior to the
implementation of the Directives Was already similar to the position required
under the Directives Conversely, the fact that a databases seems to suggest that the

test of originality for databases tables and com pilations used in the UK. was not
the same as was required under the database Directive. That is it seems to suggest
that a new standard to originality has been introduced in relation to databases
(table and compilations) 81
The position in the UK under the revised law is similar to the old law in that the
originality of the database may arise either through the selection or arrangement
the contents of the database The extent to which the new law will differ depends
on the way an authors own intellectual Creation is interpreted by the courts. At
present it is difficult to predict how a will be Ulter pried. It has been widely
assumed that the new EU standard is gher than the prior Hritish standard of
originality.82 However, common lawyer might find it difficult to see how the
phrase differs the words used by Peterson J in University of London Press v.
University of London Press. v. here is some indication of the intended standard in
Recital 17 of the Duration Directive. This plains that a photograph will be original
if it is the author own intellectual creation reflecting his personality. Whether
this will he used in relation to databases and computer programs is yet to he seen.
While the courts may use the new standard as a way ol rethinking the law in
relation to originality, for the most part the new standard will probably not lead to
different results. In particular, where the originality derives from the quality of the
labour used in either the selection or arrangement of the database (table or
corporation), it is still likely to be regarded as an authors intellectual creation.
The one area where the new definition may lead to a change is where originality
arises through the mere exercise of routine labour; that is, where the quantity as
distinct from the quality of the labour is used in the creation of the database.
Where all an author has done is to exert a considerable amount of effort in the
creation of a database, it is difficult to see how this, on its own, could be seen as
an intellectual creation, especially one which reflects the authors personality. As
a result it is possible that the previous decisions
81.

A government spokesman has confirmed that the legislative intention,

motivating the amendment in line with the EC standard, was that it be applied
only to databases. Fourth Standing Committee on Delegated Legislation, 3 Dec.
1997, the Minister of State, Dept. of Trade and Industry (Mr lan McCartney).
(The criteria apply to databases for the reasons I have given and apply only to

databases. There is currently no definition of originality and it has been a matter

for interpretation by the courts, use as the nw regulations will be.)
82

See, in the context of program S G. L) work if, Copyright Patents or Sui

Generis: What Regime Best Suits Computer Programs? in H. Hansen (ed.),

International Intellectual Property and Policy (1991,) 165, 168;
J.

Drexl, What Is Protected in a Computer Program? (1994), 96-7

(emphasizing that the European standard was a direct reaction to the German
inkassoprogram decision, and the standard adopted is consistent with the
copyright approach of treating originality as requiring the independent creation of
an author, though not mere sweat-of-the-brow).
83

(1916) 2 Ch 601, 608. C. Millard, in H. Jongen and A. Meijboom (eds),

Copyright Software Protection in the EC(1993), 239.

which accepted that the exertion of a sufficient amount of routine labour could
confer originality on tables and compilation may no longer he good law. If so, the
UK will come closer to the position of other EU countries. It will also lead to a
similar position in UK law as Feist produced in the USA.
While the only explicit change that was made to UK law of originality w
relation to databases, there is a possibility that the EU Directives will indirectly in,
influence the standard of originality for photographs and computer programs, 85
As the language of the 1988 Act should be construed as far as possible to be
consistent with international obligations86 there is a possibility that the originality
of photograph and computer programs in the UK may be read in light of the EU
standard of an authors own intellectual creation.87
No judicial guidance has been given in the UK as regards the exact
circumstances in which photographs will be regarded as original.88 While there is
little doubt that protection will be granted to more artistic photographs (where
there may be considerable effort in selection of the material to be photographed
and the way the photograph is executed in terms of light, angle, exposure)89
doubts have been raised about the originality of routine snapshots. If the Duration
Directive was to have an impact on UK law in that area, it would be likely to
increase the possibility that snapshots were not protected by copyright.90
The position in the United Kingdom is further complicated by the
existence of a derogation in Article 6(2) of the Duration Directive. This allows
member states to give protection to non-original photographs. In so far as the

traditional standard of originality is lower than the standard in Article 6(1) (and
Recital 17) of the Duration
As explained below, absent fulfillment of this criterion, the material data
may be protected by a suigeieris right.
The question arises whether a British court would, for the sake of
simplicity and convenience, read the changes as justifying wholesale
reformulation of the originality requirement in UK law.
86 Von Colson and Kamann, Case 14/83 (1984] ECR 1891.
The courts have acknowledged that it is not always appropriate to treat
particular statements concerning originality made in one context as being
applicable to other contexts. For example in Interlego v. Tyco Industries (1989]
AC217 the Privy Council declined to apply statements of the House of Lords in
Ladbroke v. William Hill (1964} 1 WLR 273 to the effect that a work was original
if it was a product of labour, skill or judgment to the context of derivative artistic
works. Unfortunately, the courts have provided little guidance as to when
particular elaborations are applicable.
In Graves Case (1869) LR 4 QB 715 Blackburn I held that a photograph
of a painting was an original photograph but noted the difficulty involved,
explaining, (t) he distinction between an original painting and its copy is well
understood, but it is difficult to say what can be meant by an original photograph.
All photographs are copies of some object. It should be noted that, in contrast
with the position in relation to protection of books under the Literary Property Act
1842, photographs, drawings, and paintings were only protected under the Fine
Art Copyright Act 1862 if they were original. Graves Case therefore remains
relevant.
89 K. Bowrey, Copyright, Photography and Computer Works: The Fiction
of an Original Expression (1995) 18 University of New South Wales Law fournal
278.
A. Miller, Copyright Protection for Computer Programs, Databases and
Computer-Generated Works Is Anything New since CONTU? (1993) 106
Harvard Law Review 977, 1072 (It is increasingly difficult to consider many
photographs as works that truly are affected by the authors personality or that
have even a modicum of creativity).

Directive this allows the UK to maintain its lower standard that is to

protect non original photographs (in the European sense). The difficulty with
interpreting the current law as if it were intended to maintain the lower standard is
that the 1988 Act has not been amended to draw a distinction between
photographs which are original in the European sense and those which are nonoriginal in the European sense (but original in the old UK sense). As things stand
the most obvious way to interpret the originality requirement in the 1988 Act so
that it complies with the Duration Directive with respect to photographs is to
interpret the word 'original' as referring to the European standard. That is, as
requiring the photograph to be an author's own intellectual creation reflecting his
or her personality.
The position in relation to computer programs as with photographs is
unclear. If a new standard were introduced in relation to computer programs, any
changes which were likely to take place would probably occur in relation to those
elements which were dictated by the function the program was to perform or by
economic necessity. To impose a test of authors own intellectual creation upon
computer programs my also mean that commonplace routines used by
programmers would not be protected.
3.2.5 computer-generated works
Prior to the passage of the 1988 Act, there was some uncertainty as to the
status o computeriener1ted works; that is, to works created by translation
programs, search engines and the like. In part, the 1988 Act resolved this
uncertainty by providing that a literary, dramatic, musical or artistic work attracts
copyright protection even where it has been generated by computer in
circumstances where there was no human author.92 While these changes were
useful in so far as they clarified that creations generated by a computer could be
classified as works, they said nothing about how the originality of such works was
to be determined. The particular problem that arises with computer-generated
works is that it is difficult to see how the existing criteria of originality which
focuses on the relationship between the author and the work,
Although the express amendment of the Act as regards databases alone
might be interpreted as signifying the maintenance of the existing originality
standard for other works, such limited legislative action is better seen as a
consequence of the limited powers to expressly alter the statute by statutory

instrument under the European Communities Act. In this respect the decision not
to expressly alter the originality requirement in the context of computer programs
might be taken as an indication that the concept of origina1itY in general is now
intended to be rendered consistent with that demanded by the Directives. Such a
move would be a bold one, but might chime with recently expressed concerns
over the overextension of copyright law. S. Ricketson suggests a requirement of
some minimal creativity in The Concept of Originality in AngloAUStraliah1
Copyright Law (1991) 9(2) Copyright Reporter 1, 16.
92 CDPA s.9(3), 178. Cf. Payen Componets South CaI Bovicgaskets(1996)
33 JPR 406,411 (Supreme Crt. of South Africa) (distinguishing between .
0putergenerated and computetai5ted works). Apparently the issue of such works
was considered in the USA as early as 1965. See A. Miller, Copyright Protection
for Computer Prograrns Databases and Computer enervated Works: Is Anything
New since CONTU? (1993) 106 Harvard Law Review 977, 1042 if. (describing
the issue as copyrights next battlefield but arguing that the problem remains
conceptual for the moment because there will be identifiable human authors for
the foreseeable future).
can be applied to computer-generated works which, by definition, have no readily.
Given that computer-generated works are protected where there is no
human author, the question arises: what is the test for originality that is to be
applied to such works? One possible test would be to ask whether the work was
produced as a result of the independent acts of the computer. That is, is the work
original in the sense that it was knot copied? Alternatively, a court might say that
originality exists where the computer has produced a work which is different from
previous works (i.e. it is novel). It has also been suggested that the courts ought to
ask the hypothetical question: if the same work had been generated by a human
author would it have required the exercise of a substantial amount of skill, labour,
and effort? If yes, then the computer-generated work would be original.94