Introduction
Copyright law concerns itself with the protection of expressions of ideas. This includes literary and artistic works, which refer to books, lectures, dramatic works, musical compositions, drawings, photographic works, and illustrations, among other examples. Copyright law is not concerned with protecting ideas themselves, but with protecting the manifestation of those ideas.
Copyright affords the author, or owner of the work, economic and moral rights. Economic rights ensure that the author or owner has the ability to derive financial rewards from the work, whilst moral rights offer the author or owner the ability to preserve and protect their connection to the work.[1] According to the Berne Convention[2] (“the Convention”) for a work to subsist in copyright, the work needs to be original and must be in a material form[3]. The Convention, however, does not define or outline the criteria for “originality”.
The Convention is an international copyright agreement first signed in 1886 in Switzerland. It mandates equal treatment of copyrighted work by signatory countries (signatories) of the Convention, known as the Berne Union. It requires signatory-member countries to recognize copyrighted literary or artistic works as they recognise their national copyrights.
The Convention does not speak to the threshold of originality and leaves it to the signatories of the union to determine what constitutes originality in their respective territories. The signatories mostly follow the two schools of thought regarding originality i.e. The sweat of the brow and the modicum of creativity doctrine.
The sweat of the brow
This doctrine permits an author to gain rights through simple diligence during the creation of a work. The “sweat of the brow” doctrine relies on skill and labour[4] which renders the requirement of “creativity” in a work almost redundant when determining originality.
The United Kingdom adopted the sweat of the brow in 1900 with the Walter v Lane case.[5] The case involved the reproduction of an oral speech in a newspaper report. The court, therefore, had to decide whether copyright subsisted in the article that reproduced an oral speech in verbatim into print. The court held that copyright existed, based on the skill and labour that the reporter utilised in listening and writing the speech down. The court also held that it was immaterial whether the works warrant any literary merit.[6]
The University of London Press v University Tutorial Press judgement[7] held that the Copyright Act[8] does not require the expression of the work to be inventive or novel. The work, however, should not be copied from another work.[9] The court held that the term “original” must be construed to mean or relate to the originality of expression. Essentially, the threshold for originality is not the novelty or uniqueness of the work, but the originality of the expression. This case explained the test for “originality” in terms of the sweat of the brow doctrine.
According to this doctrine, an author gains rights through the persistence of creating a work, such as a database or a directory. Substantial creativity or “originality” are not required.[10] This means that, under this doctrine, a work can be protected even if it is unoriginal. Various jurisdictions such as South Africa, Canada and Australia have been using the sweat of brow doctrine.
Modicum of creativity
The concept of “originality” in the US has undergone significant changes over the years. The US went from implementing the “sweat of the brow” doctrine to the “modicum of creativity” standard, which is put forth in Feist Publication Inc. v. Rural Telephone Service[11] by the United States Supreme Court. The sweat of the brow doctrine advocates for protecting works based on the skill and labour performed by the author in the work’s completion. The court rejected this doctrine in Feist[12], the court established a new ‘creative originality’ threshold.
The court also presented a new test to protect a work because it bases the creation of the work on minimal creativity. The court held originality has two elements; namely “independent creation” and a “subjective element”. The first element states that; the author must create independently the work and be devoid of pre-existing works. The court defined the subjective element as a modicum of creativity. In Atari Games Corp v Oman[13], the court stated that the modicum of creativity means that the work must be more substantial than a trivial variation of existing works.[14] Under this doctrine, originality subsists in a work where enough creativity and judgement has gone into the creation of the work. The level of creativity need not be high, per se, but there should be, at the least, a minimal level of creativity for copyright to subsist.[15]
Differences and similarities
The “sweat of the brow” doctrine holds that labour even with the absence of creativity, copyright may subsist. For example, “the labour invested in the collection of the information that makes up an ordinary phone directory is, on this view, sufficient to give rise to copyright protection.”[16] The phone directory is deemed original because it was not copied from another person.
But the “creativity” doctrine holds that a finding of originality is impossible in the absence of creativity. The “creativity” doctrine holds that the standard of originality requires at least minimal creativity to be subject to copyright protection.[17] The result is that labour alone, as such is not sufficient. This means that merely mechanical arrangements of pre-existing material, even if not copied, are still not original. On this view, for example, a phone directory lacks originality.
The sweat of the brow approach invokes and evokes the language of fairness and justice, persistent images of the author’s entitlement to the products of their labour as a matter of natural right.[18]
But the creative approach as formulated by the American Supreme Court in Feist expressly invokes a utilitarian discourse around originality. From a utilitarian perspective, originality can be expected to sit at a higher level to protect works for the incentives provided by copyright. This view will protect works of investment but may not protect trivial or insubstantial works.[19]
Both doctrines state that for a work to be “original” it needs not to be copied from another person or existing work.
Conclusion
The principal objective of copyright law is to protect the expressions of ideas whilst encouraging others to build freely upon the ideas and information conveyed in those expressions, rather than to reward the labour of authors.[20]
According to the sweat of the brow doctrine, an author would gain rights through the simple diligence of creating the work, although it should not be copied. Thus, the quality of the work is never questioned or tested. The modicum of creativity doctrine holds that no creation can occur without an ounce of creativity. Thus, creativity is vital to originality, and the quality of the work produced would have to be scrutinized. The modicum of creativity sets a higher standard for work to gain protection.
The threshold of originality should not be too high, as that would mean that most works produced would not meet the standard.
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[1] https://www.wipo.int/copyright/en/ (10/01/022).
[2] Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, revised
at Paris July 24, 1971.
[3] Berne Convention (n 2) article 2 (2).
[4] Michael F. Finn, Just the Facts, Ma’am: The Effect of the Supreme Court’s decision in Feist
Publications, Inc. v. Rural Telephone Service Co. on the Colorization of Black and White
Films, 33 Santa Clara L. Rev. 1993 859 at 862.
[5] Walter v Lane [1900] AC 539.
[6] Walter (n 5) 548.
[7] University of London Press v University Tutorial [1916] 2 Ch 601.
[8] The UK Copyright Act,1911.
[9] University of London Press (n 7) 608
[10] K Manoj “Rethinking Originality in Copyright Law and Exploring the Potential for a
Global Threshold” 2016 Research Gate 2
[11] Feist Publication Inc. v. Rural Telephone Service 499 U.S. 340 1991.
[12] Feist (n 11).
[13] Atari Games Corp v Oman 979 F. 2nd. 242 D.C. Circuit 1992.
[14] Atari (n 13) 43.
[15] above.
[16] Drassinower, Abraham, Sweat of the Brow, Creativity and Authorship: On Originality in
Canadian Copyright Law. University of Ottawa Law & Technology Journal, Vol. 1,2003
107.
[17] Drassinower (n 16) 108.
[18] above 111.
[19] Manoj (n 10) 4.
[20] Feist (n 11) 351.
