15 August, 2014

Retrospective - What is a 'Work' in Copyright?

Lawyers and the legal profession love their words and their singular interpretations, which can be quite odd from the perspective of the layman, especially when the interpretation seems quite obvious from the very beginning. Even so, we have learned to embrace this tradition, and understand that the nuanced meanings of words can have a huge impact on cases and their outcomes, and have no shame in jostling over the meanings of even the most basic of words. Intellectual property in this regard is no exception, and a word that is very important in terms of copyright is what is a 'work' protectable by copyright? As said, the answer may seem obvious and the discussion of what is a work seem a bit frivolous, but the reason why is incredibly important. What constitutes a 'work' under copyright sets up boundaries for the laws and expands or limits its application to both old and new artistic endeavors, making it one of the most important parts of interpretation when discussing the scope of copyright. Although discussed for for as long as copyright has existed, the modern definition of what a 'work' is came about in the 1960s through the hands of the House of Lords in the United Kingdom.

The case in question was Ladbroke (Football) Ltd v William Hill, which dealt with two competing companies in the sphere of bookmaking. The respondents to the appeal, William Hill, were firmly established in the marketplace, sending out weekly football odds to their customers during the season. The appellants, Ladbroke, have also been well-established players in the world of bookies, and entered the football bookmaking scene in the late 1950s, sending out coupons which looked very much like the ones William Hill sent to their customers. As a result William Hill sued Ladbroke for copyright infringement, with the case culminating in the highest court of the UK in 1964.

Sisyphus, for some reason, thought his work was for naught.
The coupons which the case concerned were very simple in their design, consisting of a list of the games that week along with boxes next to each match, allowing for the person to indicate the games' outcomes and therefore to change the odds of winning, as each bet would have to be successful for the individual to win. Some of the lists provided contained all of the games that week, whereas some only contained a selection of games. William Hill's coupons contained 16 lists, while Ladbroke's coupons contained 15 lists of games. The latter lists were almost identical to William Hill's ones, with only some slight deviations in terms of headers or different odds. What was allegedly copied were the possible wagers to be made and, to a large extent at least, the layout and headers of the lists. The big question that remained was whether such lists would be a work protectable under copyright.

Under the Copyright, Designs and Patents Act 1988 a 'work' is defined as "...a work of any of those descriptions in which copyright subsists", which include musical, literary and artistic works, among others. That definition alone seems like not much help, but it's an important statement of what can be considered as obvious, which can be expanded upon. Although the wording differs from the Copyright Act 1956 which was at issue in the case, the considerations can be argued to applying equally to the newer 1988 Act.

The discussion in the case pertained mostly to whether such a work could be considered as an original work (more on which can be found here); however whether the sheer compilation of information into tables and lists would be a work is also quite important under this consideration. After all, even if a work is 'original', but does not qualify as a genuine 'work' (in most cases quite hard as the two are more or less intertwined), the piece would not attract copyright protection. In the end this is a determination by assessing the "...skill, judgment or labour" put into the creation of the work; or in other words, did the author of the work do anything more than the bare minimum in the creation of the work in question. Many have mentioned the very scattered approach to this question, as often judges will take into account expense, knowledge and even literary skill employed into the creation of the work; leaving the question without a definitive judicial consideration. This has been seen different in the United States, as under the Feist Publications v Rural Telephone Service decision (more on which can be found here) effort alone won't give a work protectability under copyright. In the end the appeal was dismissed by the House of Lords, and William Hill's coupons and lists were indeed protected by copyright.

As one can see what a 'work' is is quite ambiguous, and the consideration of judgment, skill and labor leaves it even more in the mist, as plain effort might not be the most accurate description or factor in deciding what truly amounts to a work or not. This uncertainty leaves short pieces and low-effort works potentially in the fringes of copyright, and can cause issues to those authors as a result. Clearly this is something which copyright should not cause, and might be a reason why the definition of a 'work' should be revisited by either the judiciary or the legislature in the future.

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