· Copyright protects expressions.
· Copyright and related rights are national rights.
· Consequently, the requirement of originality varies from jurisdiction to jurisdiction.
· Copyright is not concerned with the originality of ideas but with the expression of thought.
· The originality which is required relates to the expression of the thought.
· This does not require that the expression must be in an original novel form, but that the work must not be copied from another work, i.e. that it should originate from the author.
· Originality for the purposes of establishing copyright requires the author’s own intellectual creation, see Infopaq International A/S v Danske Dagblades Forening [2010] FSR 20.
· No specific measure of originality is required.
· The standard required for a work to qualify as original is low.
· In substance what is required is that the work is the result of the author’s own intellectual creation, i.e. that it is the result of skill and labour/intellectual creation, see paragraphs 51-54 of the judgment of HHJ Birss QC in Temple Island v. New English Teas [2012].
· While photography is a problem area, there is scope for originality where specialized techniques are used, e.g. angle shot; exposure and use of filters; the creation of a specific scene or style of subject; and merely being in the right place at the right time.
· Copyright in the UK is solely the creature of statute.
· The governing statute is the Copyright Designs and Patents Act 1988 [the ‘CDPA’].
· Section 1(1) CDPA provides:
‘(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—
(a) original literary, dramatic, musical or artistic works,
(b) sound recordings, films or broadcasts, and
(c) the typographical arrangement of published editions.’
· Section 4 CDPA defines a work of art as meaning;
‘(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality,
(b) a work of architecture being a building or a model for a building, or
(c) a work of artistic craftsmanship. …
“building” includes any fixed structure, and a part of a building or fixed structure;
“graphic work” includes—
(a) any painting, drawing, diagram, map, chart or plan, and
(b) any engraving, etching, lithograph, woodcut or similar work;
“photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film;
“sculpture” includes a cast or model made for purposes of sculpture.’
· It is a question of fact in any particular case whether what is being considered is a painting.
· No particular artistic merit is required for graphic works.
· Section 9(1) CDPA provides:
‘(1) In this Part “author”, in relation to a work, means the person who creates it.
(2) That person shall be taken to be—
(aa ) in the case of a sound recording, the producer;
(ab) in the case of a film, the producer and the principal director;
(b) in the case of a broadcast, the person making the broadcast (see section 6(3)) or, in the case of a broadcast which relays another broadcast by reception and immediate re-transmission, the person making that other broadcast;
(d) in the case of the typographical arrangement of a published edition, the publisher.
(3) In 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.
(4) For the purposes of this Part a work is of “unknown authorship” if the identity of the author is unknown or, in the case of a work of joint authorship, if the identity of none of the authors is known.
(5) For the purposes of this Part the identity of an author shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry; but if his identity is once known it shall not subsequently be regarded as unknown.’
· In general, a work will be protected by UK copyright provided either: (a) that the author is at the material time a ‘qualifying person’ i.e. a British national or is resident or domiciled in one of the countries of the Berne Union or a country which is a party to the Universal Copyright Convention , or (b) that the work was first ‘published’ in one of these countries [Sections 156-156 CDPA].
· Section 175 CDPA provides:
‘(1) In this Part “publication”, in relation to a work—
(a) means the issue of copies to the public, and
(b) includes, in the case of a literary, dramatic, musical or artistic work, making it available to the public by means of an electronic retrieval system;
and related expressions shall be construed accordingly.
(2) In this Part “commercial publication”, in relation to a literary, dramatic, musical or artistic work means—
(a) issuing copies of the work to the public at a time when copies made in advance of the receipt of orders are generally available to the public, or
(b) making the work available to the public by means of an electronic retrieval system;
and related expressions shall be construed accordingly.
(3) In the case of a work of architecture in the form of a building, or an artistic work incorporated in a building, construction of the building shall be treated as equivalent to publication of the work.
(4) The following do not constitute publication for the purposes of this Part and references to commercial publication shall be construed accordingly—
(a) in the case of a literary, dramatic or musical work—
(I) the performance of the work, or
(ii) the communication to the public of the work (otherwise than for the purposes of an electronic retrieval system);
(b) in the case of an artistic work—
(i) the exhibition of the work,
(ii) the issue to the public of copies of a graphic work representing, or of photographs of, a work of architecture in the form of a building or a model for a building, a sculpture or a work of artistic craftsmanship,
(iii) the issue to the public of copies of a film including the work, or
(iv) the communication to the public of the work (otherwise than for the purposes of an electronic retrieval system);
(c) in the case of a sound recording or film—
(i) the work being played or shown in public, or
(ii) the communication to the public of the work].
(5) References in this Part to publication or commercial publication do not include publication which is merely colourable and not intended to satisfy the reasonable requirements of the public.
(6) No account shall be taken for the purposes of this section of any unauthorised act.’
· ‘Sculpture’ is not defined by the CDPA.
· There is no statutory requirement for ‘fixation’, however the English court has occasionally held that it is necessary – see Merchandising Corporation of America Inc v Harpbond Ltd [1983] FSR 32 (the ‘Adam Ant‘ case).
As a practising Barrister, I am developing Art and Cultural Heritage Litigation (including proceedings in the Intellectual Property Enterprise Court) and Mediation, as a niche practice area.
For more information, please visit the ‘Mediation of Art & Cultural Heritage Disputes’ page at www.ihtbar.com.