There Is No Longer Labor-Skill-And-Judgment Standard as the Originality Criterion under UK Copyright - Essay Example

? ‘There is no longer room for the “labour, skill and judgement” standard as the originality criterion under UK copyright.’ Critically discuss with particular reference to recent UK and ECJ case law and the relevant literature. 1. Introduction The conflicts developed in regard to rights recognized by the law are often quite strong. The reason is that the criteria set by legislators for the protection and the recognition of rights are often not clear, being open to different interpretations depending on the conditions of each case. In current paper emphasis is given on the criteria set for awarding a specific type of rights: the copyrights rights. Emphasis is given on UK copyright law but reference is also made to the approaches used in other countries also, especially the Common law countries that share a common framework of principles and rules. A specific aspect of the UK copyright law is explored: the labour, skill and judgement standard, as related to the originality criterion of UK copyright law. At a first level, the following assumption can be made: the rules of UK in regard to this type of law are not extensive, at least taken into consideration the similar frameworks of other countries worldwide. Still, the applicability of these rules is carefully monitored because of the following reason: even if the labour, skill and judgement standard need to exist as elements of the UK copyright law, their potentials to survive in the global market cannot be secured. In addition, the content and the requirements of originality can be different in UK law, compared to other laws, even those incorporated in the same legal framework, such as the countries of the Common law. The literature and the case law developed in regard to this issue are used in order to show that labour, skill and judgement in copyright cannot secure the uniqueness of a work. It seems that such difference is justified using the different explanations of originality, as held in countries worldwide. Also, the potential inability of creators to understand the requirements of copyright law can lead to delays in the recognition of the uniqueness of a work as the result of the labour, skill and judgement of its creator. At this point, the following problem appears: should labour, skill and judgement continue to be used as standards for deciding the originality of works in the context of the UK copyright law? The above question is critically discussed below using relevant literature and case law, as appropriate, so that the credibility of the assumptions made is secured. It should be noted that the findings of the literature, as compared with those of case law seem to promote two different trends: in certain cases, the labour, skill and judgement standard is used as the sole criterion for evaluating originality while in other cases a trend for replacing, even partially, the above standard with other elements, mainly quantitative, has appeared. The particular contradiction is critically discussed above in order to evaluate whether the elimination of the standard would be feasible and whether the simultaneous use of other standards would help to improve the performance of UK copyright laws. 2. The “labour, skill and judgement” standard as the originality criterion under UK copyright 2.1 The originality criterion as related to copyright In order to understand the potential involvement of labour, skill and judgement standards on UK copyright law, it would be necessary to refer primarily to originality, as a criterion for awarding a property right in regard to a specific work. Originality, as related to the copyright law sets the following condition: ‘the work must originate from its maker so that it can obtain protection’1. The concept of originality has been clearly described in the case University of London Press Ltd v University Tutorial Press Ltd (1916) where the originality of a work has been used for showing that ‘a work is originated by the author’2. In addition, it seems that originality, as explained above can have different aspects even within the countries of Common law that are based on similar legal principles. The different aspects of originality, as part of the copyright law, have been resulted because of the following two facts: a) the level of creativity of each work can be different3 and b) the uniqueness of a particular work, i.e. the non-existence of other works of similar characteristics at the time that the work was first created4. Reference could be made, as an example, to the copyright law of the United States where the existence of originality requires not just ‘the creation of the work independently from other works’5 but also the creativity of the work, meaning the uniqueness of the work at least in regard to certain of its characteristics6. In UK the second criterion for deciding on the originality of a work does not exist and a particular work can be considered as original if it has been created independently, with no other requirement to be met7. In general, different approaches seem to exist in the countries of Common Law in regard to originality as a criterion related to copyright law. More specifically, for Canada originality is not always guaranteed under the terms that the condition of increased creativity, as in the case of US, is not met8. On the contrary, Australian legislators seem to support more the views of their British counterparts on originality9: if the creator of a work is able to prove that he made all possible efforts for securing the uniqueness of the work then the originality of the work can be secured10. In regard to the above, different views have also appeared. Reference can be made, for example, to the study of Dutfield, G. and Suthersanen (2008) who claimed that ‘the originality threshold of Britain, USA and other European countries has been low’11, a view that it is not verified through the findings of the literature and the case law. According to Fawcett and Torremans (2011) ‘the originality criterion used in the context of British law can be considered as lower from that of other European countries’12. This means that in Britain a creator of a work has more chances to be awarded protection since the terms related to the criterion of originality are favourable for the creator13, in opposition with other states internationally14. The above trend is reflected in the Magill case15; the particular case has been heard by the European Court of Justice and has led to the following ruling: the Court decided that in the context of UK law TV listings can be protected using the copyright law, at the level that the labour and skill spent on the preparation of these listings are important. The above view would not be developed in regard to the copyright law of other European countries, such as France, where TV listings would not be considered as having originality16. 2.2 The “labour, skill and judgement” standard as part of UK copyright Dutfield and Suthersanen (2008) explain the development of the copyright law in the UK so that the current status and trends of the country’s specific legal framework are made clear. The roots of copyright protection in UK, at least in a form similar to the practices current held by the English courts, can be traced in 18th and 19th centuries17. It was then that the relationship between labour/ investment and the copyright law was first established. In fact, in their initial forms the copyright laws of UK aimed ‘to protect labour and investment’18. In the context of the above trend, the English courts have introduced the ‘de minimis test’19 in order to evaluate the level of originality of a work20. According to the above test, a work would be evaluated as worthy of protection by copyright laws in case that it could ‘show skills, labour and judgment’21. The copyright law of UK has similar elements with the relevant legislative texts of other countries worldwide. In fact, in UK also originality is a key criterion so that the owner of the work is able to prevent a competitor from acquiring the property of the particular work22. If the creator of the work wants to fully secure his rights on the work then additional criteria, such as the work and fixation need also to be met, a condition common to most countries where an integrate framework of copyright laws has ben established23.As explained earlier, originality reflects the origin of a work from a specific person; in UK copyright law a more detailed explanation of originality is broadly used24: in the context of UK law, originality means that ‘the work is the result of one’s own skill, labour and judgement’25. An important aspect of originality, as part of UK copyright law, is highlighted in the study of Derclaye (2010). According to Derclaye in the context of the copyright law the transformation of a work that has been already characterized as original has to follow certain rules, otherwise originality will no longer exist. The above problem is more common in the case of works that need restoration. It is important for those involved in these tasks to be quite carefully so that they will not destroy the material or other distinctive characteristics of the work for which a copyright protection has been awarded to the work’s owner26. Moreover, even if the British copyright law is rather has not accepted strict requirements, as USA, for recognizing the right of a creator to ask for the protection of his work, still the awarding of this protection in practice is not guaranteed. Indeed, in all cases, the level of labour and skill required for the completion of a work is taken into consideration by the courts in order to decide whether a creator should be awarded protection using the copyright law or not27. One of the most important cases in regard to labour and originality has been the case of Kelly v Morris (1866). In the particular case, the following problem has appeared. Mr. Kelly has developed a directory for the London Post Office. After its completion, the directory was used by Mr. Morris as the basis for the development of a similar directory. In fact, Mr. Morris gave to third persons, working for him, the directory of Mr. Kelly so that the information included is checked as of its accuracy. Mr. Kelly seek for protection of his work through the Courts. The Courts accepted that in regard to such works, such as ‘directories, maps and so on’ the following process needs to be followed: each person that aims to produce such material would do so ignoring similar materials. It is noted that for such works a person cannot be based on a copy of the work done by another person since in this way he could save the labour and cost spent for the preparation of the specific work. Rather a person interested in developing such product could begin by scratch, spending the necessary labour and cost on the relevant activity28. In two later cases related to the originality of directories, a similar view was developed. Reference can be made to the case of Waterlow Publishers Limited v Rose and Another (1995) and the case of Waterlow Directories Ltd v Reed Information Services Ltd (1990)29. In both these cases the court noted that existing directories cannot be used as a source for new ones since such activity can be characterized as infringement. Indeed, for the above cases the court held that the right of the creator of each directory has been violated30. 2.3 Could the labour, skill and judgement” standard continue to be used as an originality criterion under UK copyright laws? In practice the power of labour, skill and judgement to secure the originality of a work has been doubted. Reference can be made, as an example, to the case British Horseracing Board v William Hill where the judge noted that apart from the existence of labour, skill and judgement as qualitative criteria of originality it would be necessary for ‘a quantitative baseline of originality to exist’31 so that protection is provided for a particular work through the rules of copyright law. It should be noted that the above case refers to database copyright, reflecting work that do not meet the common characteristics of works, such as pieces of arts or inventions related to mechanics. It is implied that labour and skill, as part of the copyright law, can be related to a high range of works but their role may be limited, under the influence of other conditions that also need to be met for securing the existence of originality. In regard to the above it has been noted that the limitation of the importance of labour and skill as criteria affecting the protection awarded in the context of copyright law may not be fully justified, especially since the works related to information, such as databases, have different needs and characteristics from those related to tangible objects32. Moreover, the directories cases presented in the previous section have indicated that labour cannot be a criterion that can guarantee originality. Indeed, in all the above cases, the second-comers have used the directories developed by their competitors only as the basis for developing a new directory33. Most commonly, the information provided in the initial work has been checked, as of its validity, and a new directory has been prepared, using the information from the initial directory34. Even if both competitors, the creator of the initial directory and the second comer, have worked hard for developing a directory, only the work of the first creator is evaluated as a criterion of originality. The work of the second creator totally loses its value in case that the whole project does not begin by scratch, as analyzed earlier. On the other hand, it has noted that labour, skill and judgement tend to lose, gradually, their power as standard used for evaluating originality. This view has been related to the decrease of the involvement of originality in copyright law, at least compared to the future. Still, the power of originality as a criterion of protection under the copyright laws cannot be doubted. In fact, there are certain areas where originality is, still, quite powerful in influencing the awarding of protection to a specific piece of work. Reference can be made, as an example to the computer and database programs35 where emphasis has been given on originality in order to ensure that the protection provided to the relevant work is adequate, especially if taking into consideration the importance of this type of work for economic transactions and communication36. 2.4 Issues for consideration When reviewing the potentials of a work to be protected using the copyright law rules, the following issue appears: on which criteria the originality of the particular work would be decided. Referring to standards that are already well established in the copyright law, such as labour, skill and judgement would be an appropriate approach for securing the provision of protection to the particular work. However, the above practice hides certain risks: a) not all works can be effectively protected if such approach is employed; the case of British Horseracing Board v William Hill Organization, as analyzed in section 3.3 above, could be used for justifying such view. Still, it is not sure whether such approach would be appropriate for works totally different from that involved in the above case, i.e. a database; b) the view of the court in regard to such problem cannot be standardized; it is possible for the courts to proceed to the provision of protection of a work which meet specific quantitative criteria, without having to check whether the labour or skill standards are met, a practice that has been already used in the case British Horseracing Board v William Hill Organization, as explained above. It should be noted that originality has been traditionally a key criterion for the use of copyright laws in regard to the protection of a specific piece of work. However, through the decades the relationship between originality and copyright laws has been transformed, leading to the increase of independency of copyright from originality. The specific issue, as highlighted in the study of Atkinson, shows a trend for differentiation of the requirements of copyright law, a fact that would probably influence the role of labour, skill and judgement as a standard for evaluating originality of a piece of work37. Still, in practice the expansion of the criterion of originality is often attempted aiming to cover more effectively the rights of the creator to seek for the protection of his piece of work. This trend is reflected in the study of Kamina (2002) where reference is made to a decision of the British courts in order to expand the criterion of originality to audiovisual works. It is explained that the works of this type are protected using ‘a subject-matter test of originality’ that can secure the provision of adequate protection to the creator38.The decision of the Court in the Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] case has proved that originality can be effectively used for protecting a high range of works, and it is not appropriate for only specific works, a claim promoted by the above criterion’s opponents. Another important issue revealed through the research developed for this paper has been the following one: the content and the elements of originality, as part of the copyright law, are not standardized39. This problem has been proved to be expanded in many countries worldwide. For example, UK and Australia40 seem to accept rather soft tests when checking the originality of a work while USA and Canada have promoted a more strict practice, setting additional criteria for accepting the originality of a work41. On the other hand, the British Horseracing Board v William Hill Organization (2001) has proved that the change of already established views of originality is possible42. In addition, the level at which each of the three criteria of originality influence the decision of courts to order the protection of a particular work is not standardized. For certain works, labour can be considered as critical for deciding the originality of a work while for other works emphasis has to be given on a different criterion of originality, i.e. skill43. In the above case, the use of case law, as indicatively presented above, can be critical so that the originality of a work is fairly judged. Another issue that should be taken into consideration when checking the originality of a work is the following one: the creator of the work may not be able to full all aspects of originality, as set by the law, either because he has no access to critical information or because the material proving originality may have been destroyed44. For example, when the employee of a particular organization makes an invention that, according to the terms of the employment contract, belongs to him it may be difficult for the employee to prove that he had worked for several hours on the particular work or even that the work has been his. If the employee, in the meantime, has been fired by the organization it may be quite difficult for him to prove that a particular organizational product is totally his. In the above case it would be difficult for the court to order the protection of the individual’s work at the level that his relationship with the product is not adequately proved. Other originality criteria could be doubted when such cases are brought before the courts. For example, the creation of a product by the judgement of an individual could be not accepted by the court if there is no sufficient material for supporting this claim45. 3. Conclusion Labour, skill and judgement standards can secure the originality of a work but not in all cases, as described above. For this reason, efforts have been made so that the use of these criteria by the courts is set under control especially in cases where the characteristics of the work justify such approach, as indicatively explained in case British Horseracing Board v William Hill Organization46. The literature and the case law developed in regard to this issue reflect a similar trend: labour, skill and judgement has stopped to be considered as key criteria for awarding protection through Copyright law. Still, in regard to this issue the following concern could be developed: the terms on which such practice could be established are not clear or standardized; it seems that the need for updates in the existing copyright law has led to initiatives that could threaten the quality of works incorporated in copyright law; by increasing the law requirements for awarding such protection, it is possible that the creators of work will avoid to seek for verification by the relevant authorities47. As a result the quality of works set under the protection of UK copyright law could be worsened. In regard to the issues discussed above, the following fact would be highlighted: labour, skill and judgement standard is critical for evaluating the originality of a work. As made clear through the literature and the case law presented above, the particular standard is used in most cases where the issue of originality, as part of the copyright law appears. However, the involvement of the standard in evaluating the originality of work is not standardized. Rather, it seems that in each case the power of the above standard to influence the court’s decision for ordering the protection of a work is different, according to the characteristics of each case, the hierarchy of interests and the existing case law. For example, even in the case of British Horseracing Board v William Hill Organization Ltd (2001)48 where the necessity of quantitative elements of originality has been emphasized by the Court, the need for qualitative elements of originality especially labour, was highlighted by the Court as an indication of the fact that the elimination of the particular standard would not reflect the view of legislator. References Derclaye, E., 2010. Copyright and Cultural Heritage: Preservation and Access to Works in a Digital World. Cheltenham: Edward Elgar Publishing. Dutfield, G. and Suthersanen, U., 2008. Global Intellectual Property Law: Commentary and Materials. Cheltenham: Edward Elgar Publishing. Fawcett, J. and Torremans, P., 2011. Intellectual Property and Private International Law. Oxford: Oxford University Press. George, A., 2012. Constructing Intellectual Property. Cambridge: Cambridge University Press. Kamina, P., 2002. Film Copyright in the European Union. Cambridge: Cambridge University Press. MacQueen, H., Waelde, C. and Laurie, G., 2007. Contemporary Intellectual Property: Law and Policy. Oxford: Oxford University Press. Rahmatian, A, 2011. Copyright and Creativity: The Making of Property Rights in Creative Works. Cheltenham: Edward Elgar Publishing. Scassa, T., 2006. Original Facts: Skill, Judgment, and the Public Domain. McGill Law Journal, 51, 253-278 Torremans, P., 2007. Copyright Law: A Handbook of Contemporary Research. Cheltenham: Edward Elgar Publishing. Ward, M., 2011. A Straightforward Guide to Intellectual Property and the Law. Brighton: Straightforward co Ltd Case law Brewer v Mann & Ors (Rev 1) [2010] EWHC 2444 (QB) (14 October 2010) British Horseracing Board v William Hill Organization Ltd [2001] 2 CMLR 12 [2001] RPC Football Dataco Ltd & Ors v Brittens Pools Ltd (In Action 3222) & Ors [2010] EWHC 841 (Ch) (23 April 2010) JHP Ltd v BBC Worldwide Ltd & Anor [2008] EWHC 757 (Ch) (16 April 2008) J & F Participacoes v OHMI - Plusfood Wrexham (Friboi) (Intellectual property) [2011] EUECJ T-324/09 (17 February 2011) Kelly v. Morris (1866), L.R. 1 Eq. 697. 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