14 September, 2013

Retrospective - What is Original?

Much like novelty in patents (discussed more in depth on this very blog here), copyright only protects works which can be considered 'original'. If you merely copy another person's work by adding nothing new to it, it can be said to not be original and therefore not merit protection. After all, copyright endeavors to enable further creation and protect the interests of those who dare to do so. The bigger question at the heart of all of this then is a very simple one: what is originality?

Math - the bane of many students' existence
One of the milestone cases in the history of copyright, University of London Press Ltd v University Tutorial Press Ltd, came about in the early part of the 1990s where the United Kingdom courts had to tackle the question of what can be considered an original work within the then in force Copyright Act 1911. The case dealt with examination papers which were written for the University of London back in 1915. Under the University of London's senate's decision all examination papers created by appointed examiners would belong to the University, aside from drawings, and the University reserved all rights to reproduce those exams without any extra compensation to the examiners who had written them. Subsequently examiners were appointed for the exam period held in September of that year, among which were Mr. Jackson and Professor Lodge who were in charge of creating the exam papers for mathematics. After the exam papers had been created, the University entered into a contract with University of London Press, assigning it the copyrights and rights of publication to any specific exams for a fixed period of 6 years. University of London Press were then issued the rights to publish the exams written in the previous year, which were then published by University of London Press in early 1916. In the same month University Tutorial Press published exam from the previous year as well, containing 16 out of 42 exams from January 1916, which were attained from students rather than the published copies made by the University Press. Among the 16 exams were three which were written by Mr. Jackson and Professor Lodge. Along with the published exams University Tutorial Press also published the answers to some of the questions in those exams, including some critique of those particular questions as well. Subsequently University of London Press sued University Tutorial Press for copyright infringement over the published exams.

In his assessment of what an original literary work would be, Justice Peterson stated that "[t]he word "original" does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought". As one can see from his Honor's view, copyright protects expression, not ideas (more of which was discussed in this blog here). One can copy ideas, yet how those ideas are conveyed has to be different. This is where arguably the layman's perception of what original is differs from that of the legal view of originality.

In further consideration Justice Peterson saw that "...the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work - that it should originate from the author". Albeit seemingly obvious when thinking of originality, this point by Justice Peterson is imperative with regards to originality. For a work to be considered original it has to originate from the author themselves. What this is is an assessment on a case-by-case basis as to whether the work which is being contended did in fact originate from the author. In the case the authors of the exam questions, Mr. Jackson and Professor Lodge, had thought of the questions themselves, only drawing from the stock of knowledge in mathematics which existed at the time. It was seen by Justice Peterson that these works were indeed original. In his final thoughts Justice Peterson laid out a rough test for originality, which has fallen under some critique in modern times: "...what is worth copying is prima facie worth protecting". In the decision University Tutorial Press were found to have infringed the University of London Press' copyright.

What 'originality' boils down to is independent creative effort. If the work which is sought to be protected was the result of independent creation, it most likely will fall under copyright and be protected. Ideas themselves are not protected, but the expression of those ideas through individual creative effort would be. Although seemingly a given when presented as such, it is still a core tenant that needs to be understood and applied when dealing with potential copyright infringement.

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