EU 's Standard of Copyright - Coursework Example

Table of Contents Introduction 2 Overview of UK Copyright Law 3 Overview of EU Copyright Law 5 Scope and Rationale of Originality Requirement in Copyright Law 8 ‘Labour, Skill and Judgement’ Doctrine 10 Impacts of Infopaq v Danske Dagblades Forening 14 Conclusion 15 References 17 EU Standard of Copyright Originality Introduction Copyright is applicable to all expressed representations of creative works and grants the holder a set of certain rights to license or use their works, and the rights entail reproduction, public performance, distribution, and control over copied or derivative works. When a work qualifying for protection is created, copyright will automatically arise. From this, copyright can be said to be a legal right and type of intellectual property created by law (of a country or international agreement) with the intention of granting creators of original works exclusive rights to earn compensation. Originality here means that the creator must have used their skill and judgment, rather than copying existing knowledge or material, to create their work. However, over time, most jurisdictions have been recognising and acknowledging limitations of copyright, which means they now allow fair exceptions to the exclusivity of the creators’ copyright. Essentially, this gives certain rights to the users. Copyright’s modern concept has its origins in 1710 in the United Kingdom’s (UK’s) Statute of Anne and currently, the UK’s copyright law is within the Copyright, Designs and Patent Act 1988, albeit with various amendments according to directives from the European Union. On the other hand, the European Union (EU) copyright law, consisting of directives to be enacted into national laws, has been developed with efforts aimed at harmonising the member states’ individual and varying copyright laws. Often, it has been said that the originality standard of the EU copyright is higher than that applicable in the UK. This paper will research and critically discuss this opinion, not simply by comparing the two, but also by exploring the scope and rationale of the originality requirement in copyright law. Further, it will explore the way courts have developed the originality requirement and show that the EU standards of originality are higher than those applicable in the UK. Overview of UK Copyright Law In the UK, copyright is mainly justified by the rationale that creators of intellectual wealth need to be enabled to support themselves financially, and, hence, given the motivation to carry on with the publication of their creations. It developed as a legal concept following reactions to the monopolies printers had. The Copyright Act 1956 came into force on 1st June 1957. Musical, artistic, literary and dramatic works in the UK are entitled to copyright protection in the UK. Others include typographical arrangements of published broadcasts, editions, or sound recordings. However, films produced before the enactment of the Copyright Act 1956 do not receive protection as films but rather, are protected under the Copyright Act 1911 as dramatic works. Other categories that do not receive any protection at all include wireless broadcasts before the Copyright Act 1956, because there were no provisions for them in the 1911 Act. By then, when the law was being passed, broadcasting had not yet been invented. Presently, a work must typically satisfy the set originality standards so as to be eligible for copyright, which expires after a predetermined period of time. The UK bases its originality standards on the labour, judgment, and skill invested in the creator’s work, even though they may not in reality be their original work as most of it is derived from other creators’ existing works1. In the UK, it is stated in the Copyright, Designs and Patents Act 1988 in s.(1)(1)(a) that copyright exists in original artistic, musical, dramatic and literary works. However, what the Act conspicuously fails to do is define or state the meaning of the term original. Even the Copyright Act 1911 only facilitated the inception of originality from a statutory perspective. Rather, UK law places more 1 Tanya Aplin, When are compilations original? (Robinson College 2009). emphasis on the manner in which an idea was expressed, with no single, definite, and unified nothing to do with inventive thought2. The principles of this decision are consistent with those that Hollinrake v Truswell established, and they both opine that copyright is more concerned with expression. It was not required that originality be expressed in the form of a novel, only that a work must not be a copy of another and must have originated from the author. Essentially, this threshold is very low, mainly because any work worth copying is necessarily worth protecting. Football League Ltd v Littlewoods3 is one of the cases that cemented the criterion of ‘labour, skill and judgement’ into the UK copyright law. It is held in the UK that a single word is not sufficient to consist of a work eligible for copyright protection. The copyright law in the UK further recognises, like all other countries in which the standards of the Berne Convention are applicable, that copyright is automatic and does not have to be obtained by formally registering with a government office. The holder of copyright is entitled to put into practice their exclusive rights once they reduce their ideas into tangible forms such as computer files, books, music, film and photographs4. Essentially, this is because ideas cannot be protected by copyright. Minus broadcasts, other works will be eligible for copyright basing either on the country in which it was first published or the author’s nationality. From these two determining factors, there are five basic principles that render a work either eligible or not for copyright protections. First, it is eligible if the author is a citizen of 2 University of London Press v University Tutorial Press [1916] 2 Ch. 601 3 Football League Ltd v.Littlewoods.[1959] Ch. 637 4 Howard Abrams, ‘Originality and Creativity in Copyright Law’ (1992) Law and Contemporary Problems Vol. 55 no.2 pp. 3-44. Britain or territories dependent on Britain, a subject of Britain or is protected by Britain. Second, it is eligible if the author is domiciled in or is a resident of the UK or any other nation that the clause on qualification extends to5. Third, a work is eligible if it was authored by an organisation that was incorporated under laws provided by any part of the UK or other nations that the clause on qualification extends to6. Fourth, a work is eligible for copyright protection if it was first published in the UK. Finally, it qualifies for copyright protection if it was first published in another nation to which the clause on qualification extends. Works made earlier than 1st June 1957, however, are not eligible for copyright protection by the nationality of the author but, rather, only on the nation in which they were first published. Further, broadcasts made earlier than 1st June 1957 also qualify for protection only if they were made in the UK or other nations affected by the qualification clause. Overview of EU Copyright Law EU copyright law, although not without lack of controversies and inconsistencies, has mainly been driven by the need for harmonisation. Efforts to have harmonised European copyright law can be traced back to the 1886 Berne Convention for the Protection of Literary and Artistic Works7. With all the current EU member states being signatories of the Berne Convention, observance of its provisions has become mandatory before accession. The internet 5 Boyd, ‘Deriving Originality in Derivative Works: Considering the Quantum of Originality Needed to Attain Copyright Protection in a Derivative Work’ (2000) 40 Santa Clara Law Review 325. 6 Estelle Derclaye, ‘Wonderful or worrisome? The impact of the ECJ ruling in infopaq on UK Copyright law’ EIPR Vol. 5, 2010. 7 Marcello Sorce, ‘Originality, Authenticity and Copyright’, Sonus, VII (2007), no. 2, pp. 77–85. and digital technology have restructured the manner in which users can create content, access, and distribute it from the early 1990s. While new and more diverse, as well as tailored opportunities continue to materialise for creators of and producers of content such as music, novels and films, there are also new platforms emerging for existing and new distributors and users. Regardless of geographical limitations, distributors such as libraries and users are finding means of accessing content for education, entertainment or information. With all these developments also come challenges, mainly in two forms8. First, the market must adapt to the dynamics of use and distribution of content. Secondly, and more importantly, legislators must make certain that the structure of rights, enforcement of rights, and limitations to the rights are appropriate, up to date, and suitably adapted to the new and changing environment. However, the first major initiative the European Economic Community (EEC) took towards harmonising copyright laws followed the decision to apply the model of the common standard applicable to computer programs, which was enacted in the 1991 Computer Programs Directive9. In 1993, the Copyright Duration Directive, which has since become a common term in the protection of copyright, was established. It provided that copyright protection would last for 70 years after the author’s death10. The EU copyright law protects the rights for authors, producers, and performers of films and broadcasting organisations. For these four groups of rights holders, 8 David Shipley, ‘Copyright Protection for Compilations and other Fact Works’ (2007) Journal of Intellectual Property Law, Vol. 15, No. 1, 2007. 9 Ronald Rosen, Music and Copyright (Oxford University Press 2009). 10 Eva Subotnik, ‘Originality Proxies: Toward a Theory of Copyright and Creativity’ (2010) Brooklyn Law Review vol. 76. the rights protected include reproduction, communication to the public, and distribution. There is also the broadcasting company’s and performer’s right of fixation. Usually, moral rights are considered under matters of the individual member states’ national laws, although some states classify rights such as communicating to the public as the author’s moral right11. In both the UK and EU legal regimes, the standard of originality is the benchmark for copyright protection. Operating as a threshold, this standard also defines the width of protection12. However, it may be argued that European law does not have a common codified definition of a work, with member states generally providing protection as per their respective and often significantly differing standards13. Throughout Europe, copyright codes rarely define the originality standard, and the European Directives have only explicitly defined originality for photographs, databases, and computer programs as the intellectual creation of the authors. Further, this standard of originality has been applied to several recent decisions by the European Court of Justice (ECJ) to every subject matter. Such decisions are highly debated in the UK and give rise to several questions14. A significant question is whether or not the notion of an author’s intellectual creation can actually harmonise the concept of a copyright work in the entire Europe. 11 Deazley Ronan, Rethinking Copyright: History, Theory, Language (2006 Edward Elgar Publishing). 12 Yu Peter, Intellectual Property and Information Wealth: Copyright and related rights (2007 Greenwood Publishing Group). 13 Merchandising Corporation v Harpbound [1983].FSR.32 14 Reytblat J. ‘Is Originality in Copyright Law a ‘Question of Law’ or a ‘Question of Fact?’ The Fact Solution’ (2000) 17 Cardozo Arts & Entertainment Law Journal 181. It is evident that any impact of harmonisation will depend on the interpretation of individual national courts of the given standard of originality15. When one analyses national case law in the UK, it becomes evident that courts have a tendency of regarding the European definition as a simplistic reformulation of existing domestic law. From this observation, a more important question would be whether, and which common standards are employed throughout Europe for the description of a work’s originality, and whether the case laws of the ECJ reflect such standards. To achieve the vision of a harmonised EU copyright law, the concept of the intellectual creation of an author must be analysed for its sufficiency in establishing a universal European concept of copyright work16. Scope and Rationale of Originality Requirement in Copyright Law Under copyright law, originality is, necessarily, a constitutional requirement. As is expected, copyright protection pits the publishers’ and authors’ demands to charge and control for the use of their works and creations against the users’ and consumers’ demands for maximum access to the works and creations at none or minimal cost. The underlying rationale for copyright protection, indeed, is that the derived benefit from monopolistic sets of legal rights is greater than the additional expenses imposed on the public by the copyright monopoly. The applicable monopolistic sets of legal rights are intended to provide the economic incentives necessary for the creation and distribution of artistic and intellectual works of which the public gains from the ample supply and extensive circulation. The additional expenses to the public are in the form 15 Paul Torremans, Copyright Law: A Handbook of Contemporary Research (Edward Elgar Publishing 2007). 16 Hector MacQueen and Charlotte Waelde, Contemporary Intellectual Property (2007 Oxford University Press). of, first, the cost of copies or the right to access and make use of copyrighted material of which the owner of copyright sets the price without fearing legitimate competition17. Then, the additional costs are also in the form of the restrictions in place for the use of the existing work to create their own further works. Within the structure of copyright, the benefits and costs of copyright as a system will change according to the changing copyright elements that affect their balance18. Ideally, copyright law is intended to create a proper legal balance between users’ and consumers’ rights on one hand and the authors’ and publishers’ rights on the other. Most of the issues that arise in copyright law affect the manner in which the balance is drawn19. They range from the authors’ writings to the limitations embedded in the copyright monopoly. Both in the UK and EU, the eligibility for copyright protection is among the major balance components that copyright law has drawn between the competing claims of copyright users and copyright owners. Hence, the subject of originality, embedded in the threshold eligibility standard for protection, is at the center of the qualification for copyright20. Defining or redefining threshold standards has considerable consequences and, in any case, should the threshold standard for the consideration of originality be lowered or raised, the types and number of works that will claim protection will also change. Essentially, it is the copyright monopoly’s coverage that will be put at stake by the definition or redefinition of originality21. 18 Annabelle Lever (2012): New Frontiers in the Philosophy of Intellectual Property, Cambridge University Press. 19 Pascal Kamina, Film Copyright in the European Union (2002 Cambridge University Press). 20 Lewis.v.Fullarton 48 E.R. 1080;(1839) 2 Beav. 6 21 Laddie and Prescott and Vitoria, The Modern Law on Copyright (2009 Butterworths Law). ‘Labour, Skill and Judgement’ Doctrine The threshold presented by this criterion is essentially too low22. Justice Laddie argued that there may be too much of good things and, therefore, too much copyright, mainly because of the way originality is interpreted. For instance, British Northrop considered the drawings of screws and bolts as sufficiently conveying originality. As a consequence, according to Justice Laddie, industrial articles are receiving what he terms as ‘proxy protection’ courtesy of the copyright embedded in their drawings. It is easy to agree with Justice Laddie because by critically analysing his idea of ‘proxy protection’, it can be seen that the primary concern of courts in the UK is injustice of individuals reaping where they did not sow23. This is as opposed to the more practical and logical approach of encouraging and protecting creative effort. As suggested by Dick v Yates, originality must essentially grow up in an author’s mind. It must be similar to things if when equated to patent rights, they would qualify as inventions. By all means, this was a much higher and more significant test that is, ironically, not the law that the UK follows today. Theoretically, the courts can protect the commonplace or valueless but the ‘labour, skill and judgement’ criterion’s unfortunate strength is that currently, equity gaps are being filled by copyrigtht. Ideally, unless reforms are initiated elsewhere, no protection will be achieved by those who deserve in the event that the threshold is raised. 22 Ian Hargreaves, Digital Opportunity: A Review of Intellectual Property and Growth accessed 22 December 2014. 23 Jarrod v Houlston 69 E.R. 1294; (1857) 3 Kay & J. On the other hand, the EU copyright law appears to be able to strike the necessary balance. The ‘labour, skill and judgement’ criterion can and the copyright law can also be criticised for being largely uncertain mainly because of the phrase’s varying use in court. For example, the phrase was replaced with ‘work, capital and effort’ in Ladbroke v William Hill, and ‘or’ occasionally substituted ‘and’. In substance, this may be argued as not being an issued since it is known that what the court was referring to were the works of “sweat of brow”25. However, it does support the provision that the division between original and non-original works is not certain and keeps shifting. In itself, the required degree of ‘labour, skill and judgement’ required is also a major cause of uncertainty. G.A Cramp & Sons Ltd v F Smythson Ltd suggested that originality is a matter of degree and fact27. However, as the case itself showed, in which copyright had been requested by the applicant for table selection in a diary, this is a problematic perspective. In the first instance, copyright was denied. However, the Court of Appeal claimed the case barely met the requirements, the works were satisfactorily original and the decision was overturned. Later, this judgement was not agreed upon by the House of Lords, which was of the opinion that the order of arrangement of the tables lacked any element of originality or skill28. From this, it is seen that there are only minimal margins through 24 Daniel Gervais, ‘Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law’ (2002) Journal of the Copyright Society of the USA vol. 49, pp. 949-981. 25 John Gantz and Jack Rochester, Pirates of the Digital Millennium. (2005 Prentice Hall). 27 G.A Cramp.&.Sons.Ltd.v.F.Smythson.Ltd.[1944]A.C.329. 28 British Nothrop.v.Texteam.Blackburn [1974] RPC.57,68 which originality can be found. Therefore, the law requires more solid and reliable guidance that will make sure its certainty is guaranteed. As can be seen in Macmillan v Cooper, even the judge agreed that there are no precise terms and that, therefore, every individual case must be handled and decided basing on its own unique facts29. The UK is a signatory to the Berne Convention, but its standards of originality can be shown not to be exactly compatible with it. It is stated according to Article 2(5) that collections will be protected basing on the reason of the arrangement and selection of their contents which qualify as intellectual creations. Then, an expert committee of the World Intellectual Property Organization (WIPO) further alleged that Article 2(1) not only fails to define originality explicitly but it also affirms that the works described by Article 2(5) are the only ones that will be deemed to be intellectual creations30. The problem with these two provisions is that Article 2(1) refers to and supports Article 2(5), which in itself gives a very ambiguous definition of originality. The interpretation, therefore, is not as persuasive and convincing as it needs to be for credibility purposes because it is not stated in Article 2(5) how substantial the amount or degree or creativity needs to be to qualify as original. The issue then becomes that the UK copyright law needs to first define originality in terms of intellectual creation before it can set credible originality standards31. In its current form, the UK copyright law permits counties to adopt varying interpretations regarding the minimum requirement of 29 Orit Fischman, ‘The Role of Non-Functionality Requirement in Design Law’ (2010) Fordham Intellectual Property, Media & Entertainment Law Journal. Vol. 20:3, 2010 pp. 847–874. 30 Copiepresse.SCRL.v.Google,.Court.of.First.Instance.of.Brussels.No.06/10.928/C.February.13 2007 31 Estelle Derclaye, ‘Infopaq International A/S v Danske Dagblades Forening (C-5/08): wonderful or worrisome?’ E.I.P.R. 2010. intellectual creations. While this situation typically implies that the UK copyright laws conform to the Berne Convention, it is also evident that other countries in Europe and specifically the EU copyright law have interpretations that are much closer and aligned to the ideal32. The standard of the EU copyright law is potentially decisive on whether or not the criterion of labour, skill and judgement will continue being applicable33. This is especially following the restricted use of the criterion by two directives; the Computer Programs Directive and the Database Directive. More specifically, Article 3A (2) of the Copyright Design and Patents Act 1988 was amended to conform to the Database Directive34. In the amendment, it was provided that a database would only be granted originality status basing on its contents’ arrangement or selection and whether or not the intellectual creation of the author is constituted in the works. Following this, several questions were given to the ECJ by the Court of Appeal in Football Dataco Ltd and others v Stan James (Abingdon) Ltd34. The questions were to clarify the meaning of the amended provision and its difference from the approach that UK copyright laws has usually taken. It was questioned whether or not to exclude the intellectual skill and effort in the data creation process. The response of the ECJ was that the database’s structure only, and not the contents, would be taken into consideration essentially meaning that the courts in UK could 32 Raymond Dowd, Copyright Litigation Handbook (1st ed.). (2006 Thomson West). 33 Baade, ‘Photographer’s Rights: Case for Sufficient Originality Test in Copyright Law’ (2000) 30 John Marshall Law Review 149. 34 English Court of Appeal (2000) Hyde ParK Residence Ltd v Yelland & Others [2000] EWCA Civ 37. 34 Football Dataco Ltd and others v Stan James (Abingdon).Ltd.[2010].EWHC.841 no longer evaluate the authors’ pre-expressive efforts. This can be viewed to be a suggestion by the ECJ that the intellectual creation of authors was indeed a representation of greater originality standards. This suggestion was informed by the perception that labour and skill on their own were not sufficient grounds to make up originality in isolation35. Rather, the way the data is arranged must be viewed as and qualify to be considered the authors’ original expression of their creative independence. The exclusion of national legislature from allowing copyright protection under circumstances that do not conform to Article 3(1) was also confirmed by the ECJ35. When analysed deeper, the significance of this can be seen in the sense that the EU standard does not simply raise the threshold of originality but also imposes an essentially different kind of requirement. The requirement by the EU copyright law essentially provides a considerable qualitative factor for testing originality which demands a certain degree of subjective contribution that render the ‘sweat of brow’ doctrine insufficient. Impacts of Infopaq v Danske Dagblades Forening This case is a signal of the ‘labour, skill and judgement’ doctrine of the UK copyright law coming to an end. The case was to determine whether or not eleven words that belonged to newspaper article authors and used in the process of capturing data by the defendants actually qualified for copyright protection36. The ruling by the ECJ was that the eleven words actually were eligible for copyright protection. The court declared that the defendants could not claim the eleven words to be their original creation as used in their capture of data because they were not 35 Elizabeth Judge and Daniel Gervais, ‘Comparing Notions of Originality in Copyright Law’ (2009) Cardozo Arts and Entertainment Law Journal vol. 27. 36 Infopaq v Danske Dagblades Forening ECJ.C-5/08. their own intellectual creation. It is only by the choice, combination and sequence of data that an author can originally express creativity and realise a result that can genuinely be termed a work of intellectual creation. This judgement is largely beneficial not only for the authors but also for the purpose of legal certainty, further placing the EU copyright law standards higher those applicable in the UK37. What appears clear here is that the ECJ was pointing out to national courts to take into consideration not the quantitative features of the work but qualitative ones. Essentially, it is creativity that was implemented by the ECJ as the standard of originality, which meant that ‘skill, labour and judgement’ were excluded. Further, this also meant that the cases, through which the doctrine of ‘skill, labour and judgement’ had been developed, for example, Ladbroke v William Hill, were overridden. Conclusion Copyright has been shown as being applicable to all expressed representations of creative works and grants the holder a set of certain rights to license or use their works, and the rights entail reproduction, public performance, distribution and control over copied or derivative works. In the UK, the concept of copyright is mainly justified by the rationale that creators of intellectual wealth need to be enabled to support themselves financially and need motivation to carry on with the publication of their creations. On the other hand, EU copyright law, has mainly been driven by the need for harmonization and the efforts can be traced back to the 1886 Berne Convention for the Protection of Literary and Artistic Works. Although not exactly fully 37 Walter v Lane [1900] A.C. 539.\ 38 The Copyright Licensing Agency (2014). Copyright Information. accessed 22 December 2014 developed, the EU copyright law is a clear and credible signal of the future discontinuation of the use of the ‘labour, skill and judgment’ doctrine. This is mainly informed by the observation that the ‘labour, skill and judgement’ criterion is largely uncertain because of the phrase’s varying use in court. Further, the EU copyright law provides a more functional definition of originality based on the intellectual creativity of the author, which is superior to vesting originality in the skill, labour and judgement of the author. 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