Lecture 3. Criteria for Copyright Protection
Recording / fixation
- Different approach to the issue of fixation / recording in national laws (common law copyright /
authors’ rights)
- “It shall…be a matter for legislation in the countries of the Union to prescribe that works in general or
any specified categories of works shall not be protected unless they have been fixed in some material
form.” (BC Art 2(2))
- “Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in
writing or otherwise…” (CDPA 1988, s 3(2))
- Artistic works, related rights?
- “It is immaterial for the purposes of subsection (2) whether the work is recorded by or with the
permission of the author; and where it is not recorded by the author, nothing in that subsection
affects the question whether copyright subsists in the record as distinct from the work recorded.”
- (CDPA, s 3(3))
- EU Law
“It is important to point out that, in addition to the fact that Directive 2001/29 does not lay
down any obligation to fix a work,…it is not the form on or in which a work is fixed that is the
subject matter of the copyright, but the work itself.” (C-310/17) Levola Hengelo AGO [59]
Issue not covered in the Levola Judgment
Originality / creativity
- Introduction
General condition for ‘literary and artistic works” (“Berne Convention works”)
Implicit requirement of the BC (e.g. Art 2(5)) “Collections of literary or artistic works such as
encyclopedias and anthologies which, by reason of the selection and arrangement of their
contents, constitute intellectual creations shall be protected…”
Forms of originality – eg derivative works
Relationship to scope of protection
- distinction from “novelty” – Distinction originality / novelty: The word ‘original’ does not in this
connection mean that the work must be an expression of original or inventive thought…” (University
of London Press Ltd [1916] 2 Ch 601)
- common law tradition
Approach based on “sweat of the brow”, and/or not copied/“labour and skill”
Consequences of adopting this standard
- civil law tradition
Generally, an implicit requirement
Imprint of the author’s personality
In reality not always so exacting – eg always very demanding – Pachot (France), Kleine Münze
(Germany)
Sometimes has been a varying threshold – although cf Geburtstagszug (I ZR 143/12, 13
November 2013)
- “Originality” not required for “related rights” - Much more limited principle applied under CDPA
1988, see, e.g.: ‘Copyright does not subsist in a sound recording which is, or to the extent that it is, a
copy taken from a previous sound recording.” CDPA 1988, (s 5A (2))
- Traditional UK approach –
Not a high degree of creative merit
Need for “labour”and “skill”
Different forms of “labour and skill”
New works
Derivative works
some examples
Ladbroke v William Hill [1964] 1 W.L.R. 273 (HL) – football pools betting (very
popular). Claimant had calculated odds. Defendant didn’t calculate their own odds
but took the claimants coupon odds. D argued copyright doesn’t protect mental
work that went into calculating odds in this instance. There is nothing original about
the claimant’s coupon. HL said the labour and skill that could be protect in uk law
could also be the hard work gone into generating the odds of the coupon.
Recording / fixation
- Different approach to the issue of fixation / recording in national laws (common law copyright /
authors’ rights)
- “It shall…be a matter for legislation in the countries of the Union to prescribe that works in general or
any specified categories of works shall not be protected unless they have been fixed in some material
form.” (BC Art 2(2))
- “Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in
writing or otherwise…” (CDPA 1988, s 3(2))
- Artistic works, related rights?
- “It is immaterial for the purposes of subsection (2) whether the work is recorded by or with the
permission of the author; and where it is not recorded by the author, nothing in that subsection
affects the question whether copyright subsists in the record as distinct from the work recorded.”
- (CDPA, s 3(3))
- EU Law
“It is important to point out that, in addition to the fact that Directive 2001/29 does not lay
down any obligation to fix a work,…it is not the form on or in which a work is fixed that is the
subject matter of the copyright, but the work itself.” (C-310/17) Levola Hengelo AGO [59]
Issue not covered in the Levola Judgment
Originality / creativity
- Introduction
General condition for ‘literary and artistic works” (“Berne Convention works”)
Implicit requirement of the BC (e.g. Art 2(5)) “Collections of literary or artistic works such as
encyclopedias and anthologies which, by reason of the selection and arrangement of their
contents, constitute intellectual creations shall be protected…”
Forms of originality – eg derivative works
Relationship to scope of protection
- distinction from “novelty” – Distinction originality / novelty: The word ‘original’ does not in this
connection mean that the work must be an expression of original or inventive thought…” (University
of London Press Ltd [1916] 2 Ch 601)
- common law tradition
Approach based on “sweat of the brow”, and/or not copied/“labour and skill”
Consequences of adopting this standard
- civil law tradition
Generally, an implicit requirement
Imprint of the author’s personality
In reality not always so exacting – eg always very demanding – Pachot (France), Kleine Münze
(Germany)
Sometimes has been a varying threshold – although cf Geburtstagszug (I ZR 143/12, 13
November 2013)
- “Originality” not required for “related rights” - Much more limited principle applied under CDPA
1988, see, e.g.: ‘Copyright does not subsist in a sound recording which is, or to the extent that it is, a
copy taken from a previous sound recording.” CDPA 1988, (s 5A (2))
- Traditional UK approach –
Not a high degree of creative merit
Need for “labour”and “skill”
Different forms of “labour and skill”
New works
Derivative works
some examples
Ladbroke v William Hill [1964] 1 W.L.R. 273 (HL) – football pools betting (very
popular). Claimant had calculated odds. Defendant didn’t calculate their own odds
but took the claimants coupon odds. D argued copyright doesn’t protect mental
work that went into calculating odds in this instance. There is nothing original about
the claimant’s coupon. HL said the labour and skill that could be protect in uk law
could also be the hard work gone into generating the odds of the coupon.
