Humans Only - US Federal Court Rules that AI Cannot Own Copyright in Created Works

This blog has on many occasions discussed the difficult world that IP can be for both AI creations and inventions (e.g. more here, here and here), with the landscape looking more and more 'hostile' towards AI creations and inventorship. This hasn't, however, put a damper on many who will keep trying to push the envelope, and test the limits of IP laws across the world. Such an individual is the prolific inventor, Stephen Thaler, who has been on a crusade to enable AI to own many IP rights, having failed on many occasions along the way. His saga has since continued, with the US Federal Court being the next court to consider AI authorship this month.

The case of Stephen Thaler v Shira Perlmutter, Register of Copyrights an Director of the US Copyright Office concerned a system called "Creativity Machine", which Mr Thaler owns. Creativity Machine has, according to Mr Thaler, generated a piece of visual art of its own accord, which he then sought to register on the system's behalf. This application was rejected by the US Copyright Office for a lack of human authorship (see link above). Mr Thaler did not accept this outcome and appealed the decision, which landed on the desk of Judge Howell. 

Both parties sought summary judgment on the matter, for which Judge Howell handed down their judgment. At its core the matter concerned "whether a work generated entirely by an artificial system absent human involvement should be eligible for copyright".

Judge Howell first noted that, pursuant to the US Copyright Act 1976, copyright protection attaches immediately upon the creation of “original works of authorship fixed in any tangible medium of expression", provided those works meet certain requirements. 

The judge also noted that "copyright law has proven malleable enough to cover works created with or involving technologies developed long after traditional media of writings memorialized on paper", which gives the Act scope to broadly adapt to changing technologies and methods of creation. 

However, despite this adaptability, at its core copyright still requires human creativity, even if that creativity is "channeled through new tools or into new media". The judge determined that "[h]uman involvement in, and ultimate creative control over, the work at issue was key to the conclusion that the new type of work fell within the bounds of copyright" (referring to the decision in Burrow-Giles Lithographic Co. v Sarony). 

To really drive the point home, Judge Howell states that "[c]opyright has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand, as plaintiff urges here. Human authorship is a bedrock requirement of copyright". The important point here is that the decision requires that a human guides the creation of a work by AI systems, so an absence of human intervention can lead to the works falling outside of copyright protection. 

As has been mentioned in earlier decisions, this position is corroborated by the text in the Act itself, which notes that copyright attaches to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device". The fixation of the work must also be done "by or under the authority of the author". 

While the term 'author' is not defined in the Act, the judge quickly decided that the Act requires a copyrightable work to have an originator with the capacity for intellectual, creative, or artistic labour who specifically is a human. Additionally, "[t]he act of human creation—and how to best encourage human individuals to engage in that creation, and thereby promote science and the useful arts—was thus central to American copyright from its very inception".

The requirement for human authorship has also been followed and kept as copyright laws have evolved, with the Supreme Court consistently ruling that it is a crucial requirement for copyright protection (e.g. in Sarony above, Mazer v Stein and Goldstein v California). 

The courts have also consistently rejected copyright ownership by non-human authors. This has included divine beings (Urantia Found. v Kristen Maaherra), gardens (Kelley v Chicago Park District) and monkeys (Naruto v Slater). 

Judge Howell nevertheless acknowledges that in the future the courts and/or legislatures will have to grapple with "how much human input is necessary to qualify the user of an AI  system as an “author” of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI, and more". 

Judge Howell concluded that the US Copyright Office acted properly in denying copyright registration for a work created absent any human involvement. 

The decision is one in a long string which have denied AI authorship and inventorship, and it looks unlikely that this will change bar legislative amendments to existing copyright regimes. The current, admittedly nearly archaic legislative frameworks have not, and frankly could not have, conceived of a world where computers or AI systems could create as they do currently. This leaves legislative action as imperative, lest we want the law to forever lag behind technology. 

Monkey Snap, Monkey Don't - US Court of Appeals Rules Out Animal Ownership of Copyright in Monkey Selfie Case

The rights of animals, whether it is simply to extend human rights to them or even legal rights, are a very contentious and often emotionally charged topic of conversation. A good example of this is the recent monkey selfie legal saga, which grappled with the vesting of intellectual property rights in a monkey (discussed more on this blog here and here). The parties settled the matter out of court late last year, but the Court of Appeals saw to still rule on the matter, irrespective of this settlement (which is within their powers to do). This is very important, since it will set the legal position of animals' rights in IP firmly on one camp; yes or no. This writer has been waiting for the ruling with baited breath, which was published only last week.

By way of a brief primer, the case of Naruto v David Slater concerned a series of photographs taken by a crested macaque in 2011 (named Naruto by its Next Friends in the litigation, PETA). The monkey took the photograph using Mr Slater's camera, which he had configured and left for the monkeys in the area to play with. One such picture became an Internet sensation, leading to Mr Slater asserting his rights in the picture as its author. PETA took the matter to court, claiming the monkey had rights in the picture, and that Mr Slater had infringed its copyrights by publishing it. Even though the parties settled the matter, as discussed above, the Court saw it fit to decide on it anyway due to its importance as a developing area of the law.

Naruto's representatives were aghast at the ruling

Judge Bea, handing down the majority's judgment, started off with determining whether PETA could represent Naruto as its next friends in the case. This is established through showing that "…(1) that the petitioner is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability; and (2) the next friend has some significant relationship with, and is truly dedicated to the best interests of, the petitioner". The Court agreed that Naruto would indeed fulfil the first requirement, but needed to assess whether PETA had a significant relationship with the animal. PETA agreed that it had does not claim to have a relationship with Naruto that is any more significant than its relationship with any other animal, and thus fails the second requirement.

The Court emphasised that animals do not have authorisation by the courts to be represented by a next friend. In other words "…if animals are to be accorded rights to sue, the provisions involved therefore should state such rights expressly".

Judge Bea then moved onto the matter of whether Naruto itself has standing under Article III of the Constitution. Under a previous Court of Appeals decision in Cetacean Community v Bush, the court rejected standing for "…all of the world's whales, porpoises, and dolphins" under environmental protection laws as animals were not expressly included within the provisions. In short, the court concluded that the test for animal standing as "…if an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing".

Under the Copyright Act there is no express mention of any animal rights for intellectual property. The provisions do, however, imply a requirement of humanity or the possibility of marital relations. The Court did conclude that, based on the statute and the Cetacean decision, "…that Naruto - and, more broadly, animals other than humans - lack statutory standing to sue under the Copyright Act".

The case is a very important one, not only for the unusual nature of judgments being issued after settlement, but it puts the rights of animals under copyright to bed once and for all. Clearly, animals cannot have rights, and this writer considers this to be the most logical outcome, even without an express mention to that effect in the legislation. One can therefore finally see a conclusion to all of this monkey business.

Sine Hominum - The Impact of Artificial Intelligence on Copyright

When people speak about artificial intelligence, or AI (the development of computer simulation of human behavior), they often think of things like Skynet or a near omnipotent, all-knowing computer entity that will overcome human's capabilities and rule us all through their superiority. While sci-fi can be a little heavy-handed on the drama, AI is coming and is already somewhat a part of our lives. As things develop in this field more and more legal question will have to be answered; however, this writer has been pondering its effects on copyright specifically, and what the future might hold, particularly in relation to authorship.

In the UK, under the Copyright, Designs and Patents Act 1988, section 154, for a work to be protected by copyright it needs an author (discussed more here). As the law stands today this would have to be a legal person, and a computer generated piece of work, with no human input bar the basic themes or elements of the work, would have no rights in the work as an author (nor, arguably, its creator). Similar provisions exist in Canada and Australia that also require a human author.

In the United States the situation is not much different, as an author is required under 17 USC 201 (albeit is not defined further), but the US Copyright Office has raised it as a possible future problem as far back as over 50 years ago. Their considerations even back then echo the main question when it comes to copyright and AI: "...whether the "work" is basically one of human authorship, with the computer merely being an assisting instrument, or whether the traditional elements of authorship in the work …were actually conceived and executed not by man but by a machine". The US District Court did look at non-human authorship some time ago in Naruto v Slater (discussed more here and here), and maintained that non-humans cannot have authorship in works, which has been established some time in the US judiciary (specifically referring to 'humans' or 'persons'). It is quite clear therefore that AI wouldn't have authorship under US law, and no copyright would vest in the works created.

AI can make up its own mind

A possible extension of the authorship of the work, to enable to protect the work under copyright, is to view the AI (or computer executing the AI's commands) as an extension of the human author. The UK case of Express Newspapers Plc. v Liverpool Daily Post & Echo Plc discussed the creation of works with computers programs, and determined that "...[t]he computer was no more than the tool by which the...[works] were produced to the instructions, via the computer programmes, of [the author]". This was codified in section 9 of the CPDA 1988, where the provision states that "[i]n the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken". While one could conceive that the AI could be seen as an extension of the human author, it still raises the question of actual input. A very sophisticated AI wouldn't, and at the heart of AI development, shouldn't require human input, bar the very basics of what is meant to be achieved through it. The AI should be able to 'think for itself' and therefore it would be a stretch to call the AI a mere tool of the human operating it initially.

The case of Nova Productions Ltd v Mazooma Games Ltd further adds to this, where the court deemed that the authorship of the copyright protected works would be afforded to the human programmer as they "…devised the appearance of the various elements of the [video] game and the rules and logic by which each frame is generated and he wrote the relevant computer program". One should be cautious with this logic as the creation of an AI that could itself create, with minimal or no input at all, a near limitless amount of protected works, and possibly lead to a virtual monopoly in music, art or whatever the AI creates simply due to its capacity to create works on-demand (or even outside of demand). Clearly, in a broad application of creative AI in this way should be denied protection as the original programmer(s) would simply reap the benefits of their artistic 'creations' and potentially limiting the market based on the AI's capacity to create and do so nearly instantaneously. A distinction therefore needs to be made between computer-created works and works created with the assistance of computers, which would protect the interest of active, computer-assisted creators, but limit rights in passive AI creation in the absence of clear and substantial human input.

The future of copyright and AI seems quite murky, with very little legislative discussion surrounding these issues and their future. Even though changes right now might be premature, the law should be ready to follow the technology as it develops and not only be reactionary as and when needed. In being one of the few to look ahead, the EU Legal Affairs Committee has called for "...a criteria for an ‘own intellectual creation’ for copyrightable works produced by computers or robots", but left the nature of this criteria open. As technologies like Google's DeepDream, Project Magenta and Future University Hakodate's AI that writes novels, the future is almost here, and the law seems potentially unable to adjust or adapt as it stands right now.

AI presents us with a wealth of possibilities, and a way for us to revolutionize how we create, work and interact with our world, but much like the revolution presented by the Internet, AI will drastically change the landscape in which the law has to operate. While it might be possible to extend the current provisions to cover these issues, particularly relating to computer-assisted creation, specific legislation would arguably be needed to prepare, not just for what exists now, but what might exist in the coming decades.

No More Monkey Business - US Federal Court Decides on Monkey Selfie Case

One of the more peculiar cases from 2014 was one involving a selfie taken by a monkey (now having been identified as Naruto), and whether that particular animal could hold the rights to the very photograph it took of itself without any intervention or instruction from the owner of the camera, David Slater (more on the case on this blog can be found here). While the question seemed to have an unequivocal answer, at least to this writer, the fight is all but over, and the District Court of Northern California had to decide the case at first instance.

Following the discussion in 2014 PETA filed a complaint asserting that Naruto, inter alia, was the author of the copyright work (the picture in question) and that animals would not, under the US Copyright Act, be excluded as authors. In their argument, as section 201 affords the ownership for copyright in an author or authors (sans any further definition or express exclusion of anything but human authors), "...to be an “owner” and, by extension, to have standing, the plaintiff need only allege to be the “author” of a disputed work". This is backed up by their argument that there is nothing unreasonable about granting standing to animals, referring to the lack of definition of a human requirement, and the possibility of affording copyright to corporations (i.e. non-human entities).

Bobo finally had an avenue of protection for
his vast collection of pictures of bananas

This case has now been resolved, with a clear rejection by Judge Orrick who presided over the case. The full text of his judgment has not been released, however, he did state during the hearing for the opinion that "...[he is] not the person to weigh into this... [and] [t]his is an issue for Congress and the president. If they think animals should have the right of copyright they're free, I think, under the Constitution, to do that".

The minutes for the hearing further clarify this: "The Court announces the tentative opinion, in line with the Ninth Circuit’s opinion in Cetacean Community v Bush, that while Congress and the President can extend the protection of law to animals as well as humans, there is no indication that they did so in the Copyright Act. The Copyright Office’s Compendium is consistent with the Court’s understanding". (links added)

Arguably, the case for animals' rights in copyright protected works seems far fetched at best, and this writer would wholeheartedly agree with Judge Orrick in this instance. While there is, potentially, a moral argument for the affording of rights to non-human animals, what this would do is open the floodgates for outlandish assertions of rights for animals and extend the remit of copyright beyond its (arguable) remit. Even if no express language is used to exclude other species from holding rights, it is difficult to give rights to those that do not understand them nor gain from the royalties themselves (as PETA would, undoubtedly, use the funds gained from those royalties on behalf of Naruto). In the end common sense should prevail, and only an express inclusion of animals' rights in copyright would create this possibility.

The case has truly been a novel one, and might still not be over if PETA decide to appeal the decision. This writer is incredibly skeptical as to the possibilities of their success, but would welcome any interesting discussion on the topic in or outside the courts.

Source: The Guardian

Knowledge for All - Google Books is Fair Use

Information, and access to it, is an incredibly powerful tool to create progression, social mobility and to affect even the biggest nations in wondrous ways. True or not, this writer is a firm believer in the dissemination and sharing of knowledge (even through blogging), and many initiatives have strived to give access to knowledge and information to those who cannot do so themselves. One such initiative is Google Books (in some ways), although clearly still laced with the sub-text of corporate gain, allowing for "...people everywhere [to be] able to search through all of the world’s books to find the ones they’re looking for". By no means altruistic, yet quite useful, the project aims to scan all of the world's books into one database, using it to allow people to find information quickly, effectively and inter-connectively (this writer notes this is not a sales pitch, even if it sounds like one). The project came under fire some time ago, prevailing initially, but the case since moved on to the US Court of Appeals, which handed down its judgment only last week.

To give this story some color, the case of Authors Guild v Google Inc dealt with the aforementioned project, where snippets of books (in image form or not) are presented to a user who searches the database for a word, phrase or sentence, with the results containing one or more instances of the search terms used in brief context. Some participating research libraries have also allowed Google to retain digital copies of some works under strict contractual terms. The Authors Guild did not accept this use of its authors' works (many of which act as plaintiffs in the matter), and took Google to court for copyright infringement.

The crux of the case lied in whether Google's use in the provision of its snippets and its search facility in seeking out the relevant content in the books amounted to fair use under 17 USC section 107 (and the four factors used to assess whether a use of a work amounts to fair use). The Court of Appeals proceeded, therefore, to apply the four factors of fair use to Google's service.

Gary struggled to find what he was looking for.
If only there was a better way...

The first factor looks at what the purpose and character of the secondary use of the work was, i.e. whether Google's use of the copyright protected works was in any way 'transformative'. The Court quickly saw that Google's search capability was highly transformative, as "...the purpose of Google's copying of the... books is to make available significant information about those books, permitting a searcher to identify those that contain a word or term of interest, as well as those that do not include reference to it. In addition, through the ngrams tool, Google allows readers to learn the frequency of usage of selected words in the aggregate corpus of published books in different historical periods". What Google's service allows for users to do is very different than the character and purpose of the books themselves, making their use of the works quite transformative. They also saw that the snippets added something more to the search function, and is in itself also transformative, allowing for a more in-depth assessment of context and relevance when searching for information to the user. Google's commercial motivation did not negate this finding.

The Court determined, briefly, that the second factor (nature of the protected work) played very little part in the assessment of fair use.

When looking at the third factor (the amount and substantiality of what was copied), Judge Leval, handing down the majority's judgment, determined that as no full copies were made available to the public by Google of the scanned books, the search function did not copy a substantial amount. The snippets shown in the results did not, in Judge Level's mind, give enough material to the reader to substitute the protected works, as only very small amounts of text are revealed to each individual user.

Judge Leval finally looked at the fourth factor, assessing the effect of the works' use upon the potential market for or value of the copyrighted works. Although the Court did recognize that there could be an impact on the works or their potential market, albeit a small one, it still had to be "...a meaningful or significant effect" for there to be an issue under the fourth factor. Even if the snippets display some facts or information, and thus detract from a need to purchase the works, they still offer very little in the form of a substitute to the original works and would not cause much of an impact in the works' potential market.

Google's Books project was therefore deemed to fall under fair use.

What the decision in hand showed us is a clear need for there to be more direct interference in an author's use of a work, and their monetary gain from it through its intended purpose (loosely said, at least). What Google created was a tool, not a substitute, that by no means superseded the original works, but allowed for them to be searched and reviewed partially, while leaving much to the original that needed to be looked through to understand the bigger, more accurate picture. The decision came as no surprise to this writer, as Google Books is nothing more than that, yet still very useful for those seeking to find a snippet of information or a factoid. Whether the matter will go to the Supreme Court remains to be seen, but the Authors' Guild has promised to take the matter further, and this writer will await the granting (or denial) of certiorari by the Supreme Court with interest.

Source: IPKat

Online Blasphemy - YouTube Wins Round Two of Performance Right Kerfuffle

After the decision in Garcia v Google (discussed on this very blog here) last year the question of whether an actor (or actress) has a copyright interest in their respective performance, no matter how short, has been debated hotly. The decision was appealed, and the Court of the Ninth Circuit decided to hear the matter again en banc; a decision that many of us involved in IP have waited for with anticipation. The decision was finally handed down nearly two months ago, and this writer, in shame, only now had time to discuss the case.

For the uninitiated Garcia v Google dealt with a low-budget independent movie called "Desert Warrior", in which Ms. Garcia appeared. Post filming the title and narrative of the movie was drastically changed, finally being called the "Innocence of Muslims"; a movie that arguably was quite blasphemous and offensive towards those of the Islamic faith. Ms. Garcia's appearance was a brief 5 second clip, and her performance was dubbed over in post-production. The movie incited violence and disapproval in the Middle East, with Ms. Garcia also facing several death threats as a result of her appearance in the movie.

The main crux of the case lies in Ms. Garcia's claim in a copyright interest in her performance, allowing for an injunction to be issued against Google for the movie's broadcast on their YouTube platform (and potential other platforms as well). This injunction was issued at first instance.

The Court raised the alarm right from the start, stating that "...Garcia’s theory of copyright law would result in... splintering a movie into many different “works,” even in the absence of an independent fixation", or in other words, every actor or actress in a given movie would have a copyright claim in it. Also, Ms. Garcia's part in the movie would fall under the work-for-hire doctrine, which passes on the copyright interest to the employer, leaving her with no copyright claim in the work. Ms. Garcia did not, as a final barrier to her copyright claim, fix her work in any tangible form; a requisite element under copyright in the United States for an interest in the work to arise. Through the Court's rationale, albeit quite aggressive as such, Ms. Garcia's claim was quickly dissected and dismissed and she was deemed to have no copyright claim in the work.

Free speech online; a precious commodity

Finally, the Court addressed Ms. Garcia's claim under irreparable harm. Her claim does not manifest itself through any tort-based cause of action, but through copyright and her interest in the work as an author. The Court did have sympathy for Ms. Garcia, but her action was rotten at the root, as the Court described: "This relief is not easily achieved under copyright law. Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from -and incompatible with - copyright and copyright’s function as the engine of expression". One has to agree with the Court's judgment, as rightfully so copyright protects expression and not human life or its safety. While one has to appreciate that the movie has brought a significant amount of distress to her, and as such those problems should be addressed, but the way to address them is not through copyright. In the end, her claim failed under irreparable harm, as no harm was caused to the work or her claimed interest in the work as an author.

Judge Kozinski, who gave the judgment at first instance, handed down a dissenting judgment, as he saw there indeed was a claim under copyright in Ms. Garcia's small part in the movie. Through his Honor's argument, Ms. Garcia's claim stems from the acting itself, and its fixation on film. Without this, in judge Kozinski's mind "[i]f Garcia’s scene is not a work, then every take of every scene of, say, Lord of the Rings is not a work, and thus not protected by copyright, unless and until the clips become part of the final movie". This writer, in his humble opinion, argues against judge Kozinski here, as the mere recording of an actor or actress does not necessarily create a 'work' unto its own under copyright. Should one follow this logic the movie in question could consist of hundreds, if not thousands of distinguishable works, which would lead to copyright being untenable in the film industry.

Judge Kozinski further argues that Ms. Garcia has an interest as an author, and thus should be protected from irreparable harm. Although, under precedent, an author does not themselves have to affix the work to be considered as such, an actor or actress plays no part in the fixation of a work, but merely act as a part of its fixation for another. This does not create an interest as an author, or a separate author within one work. As she is not an author she cannot face irreparable harm, even if her life is at stake, as his Honor points out at the end of his dissenting judgment.

Overall the case has been a very interesting one, and whether it goes on further remains to be seen; however, this author does not see a need for it to go beyond its current route. Whether Ms. Garcia has a copyright interest in the work is, at least arguably, an equivocal no, and her case, although very serious in nature, would create an overreaching right in copyright beyond its intended purpose.

Source: BBC News

Retrospective - Authorship

The expression of ideas is one of the cornerstones of copyright. The conveyance of ideas is more complex today through the use of various mediums, far from the more simple approaches in latter days. Who has written something can become exceedingly convoluted, especially in a sphere such as the Internet where anyone can claim authorship over others' works with relative ease. Although former expression mediums such as news papers and books provided a much more straightforward identification of the author on the face of it, some questions did remain as to who can be classed as the author of a work when it involves a person conveying their ideas to another for their expression of said ideas.

The more prominent case which deals with authorship is the case of Donoghue v Allied Newspapers Ltd, faced by the High Court in the United Kingdom in 1938. This case concerned a series of articles published in the News of the World newspaper about the then-famous jockey Stephen Donoghue and his experiences in the world of horse racing. Mr. Donoghue was interviewed about his adventures, which were subsequently used by a professional journalist S. T. Felstead. The series of articles published were called "Steve Donoghue’s Racing Secrets, Enthralling Stories of the Sport of Kings", and all articles were approved by Mr. Donoghue prior to publishing. Mr. Felstead wanted to further use the material which was published in these articles by writing a new piece titled "My Racing Secrets. By Steve Donoghue" to be published in the newspaper Guides and Ideas, which used condensed parts from the older articles, effectively creating a new work. Mr. Donoghue did not consent to the publication of new works, yet when the piece was published in the newspaper, Mr. Donoghue took action to prevent any further publications of such articles.

The question for the court was whether Mr. Donoghue could be seen as the author or co-author of the published articles in the News of the World under the then in-force Copyright Act 1911. Justice Farwell summarized the position of the law well as exposition to this question:

"...there is no copyright in an idea, or in ideas. A person may have a brilliant idea for a story, or for a picture, or for a play, and one which appears to him to be original; but if he communicates that idea to an author or an artist or a playwright, the production which is the result of the communication of the idea to the author or the artist or the playwright is the copyright of the person who has clothed the idea in a form, whether by means of a picture, a play, or a book, and the owner of the idea has no rights in that product."

What is important in the court's assessment is not the idea or ideas themselves, but their expression in a particular form. In the case at hand Mr. Donoghue essentially provided Mr. Felstead the ideas for his articles; ideas which were then conveyed through Mr. Felstead's expression. The language used in the articles was accepted to being that of Mr. Felstead's and not Mr. Donoghue's, even though some of the articles contained dialogue arguably taken verbatim from Mr. Donoghue's recollections.

Pete was a man of ideas, not action

Justice Farwell utilized precedent in his judgment, noting the judgment of Justice Tomlin in Evans v E Hulton & Co Ltd. Justice Tomlin expressed the need to produce the "...express matter which is the original literary work, the subject-matter of the copyright" in works to be the author of those works; something which was accepted by Justice Farwell in the case at hand. His Honor, in his mind, saw this as being the "...particular form of language in which the information is conveyed", and saw that although Mr. Donoghue influenced the substance of the works, the language used was Mr. Felstead's, making him the author of the works. Mr. Donoghue therefore failed in his action.

What can be taken away from the decision is yet again the line which authors and contributors tread; the divide between ideas and expression in copyright (something which has been discussed on this blog more extensively). Whether one contributes themes and ideas, as opposed to written material, can sway the pendulum towards either side, potentially impacting future claims should the material be abused by others. Clearly the world of copyright is not for men of pure ideas.

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.