” The 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, and, in the case of ‘literary work’, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in original or novel form, but that the work must not be copied from another work-that it should originate from the author. “

This approach is different from that adopted in authors’ rights systems, which more often begin from the intellectual act of creating a “work of the mind”. Within the EU there have been criticisms of the British approach, as tending to protect labour and skill per se (referred to disparagingly as “sweat-of-the-brow”) without reference to intellectual effort or creativity. There have been calls to harmonise the general standard by reference to a threshold of the author’s “own intellectual creation”. Versions of this test have already been used in EU legislation in relation to the standard of originality for computer programs (art.1(3) Directive 2009/24 on the legal protection of computer programs), and also for databases (art.1(3) Directive 96/9 on the legal protection of databases ), and for certain photographs (art.6 Directive 2006/116 on the term of protection of copyright and certain related rights.

As seen above, the CJEU has touched on this (rather in passing), when interpreting the reproduction right as defined by the Information Society Directive. It noted that “the general scheme of the Berne Convention” in relation to the protection of certain subject matters as artistic or literary works “presupposes that they are intellectual creations”. It noted further that under a number of EU Directives, works such as computer programs, databases or photographs are protected by copyright only if they are original in the sense that they are their author’s own intellectual creation. Thus, since the Information Society Directive, establishing a harmonised legal framework for copyright, is also based on the same principle: “the various parts of a work thus enjoy protection … provided that they contain elements which are the expression of the intellectual creation of the author of the work.” Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2012] Bus. L.R. 102 (16 July 2009) at 33-37.

The full impact of the decision in Infopaq is as yet unclear, but its potential effect is to eliminate national differences in the standard of originality in EU member states. It focuses on creativity, rather than skill and labour. It might be argued that this raises the bar for originality in UK law, though the courts in Meltwater, both at first instance and in the Court of Appeal denied that the test in Infopaq was inconsistent with the existing UK authorities. Sir Andrew Morritt took the view that the CJEU’s reference to “intellectual creation” in Infopaq related to the question of origin not novelty or merit. Accordingly, Infopaq had not qualified the test laid down in University of London Press and Ladbroke: Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890; [2012] Bus. L.R. 53.

As the statute makes clear, originality is a requirement for literary, dramatic, musical and artistic works. An artist was inspired by a striking photograph of a cock fight, and painted a picture of it. The position of the birds was the same, with similar though not identical colours. It was held that the “heightened” effect of the painting was entirely different from that of the photograph, so the defendant had produced a new and original work of art: Bauman v Fussell [1978] R.P.C. 485.

In relation to photographs, until quite recently there was no direct authority as to when copyright subsisted in photographs; particularly as to whether copyright could subsist in a photograph of a single static item (such as a sofa or candelabra). However, learned commentators suggested that there would be sufficient originality to give copyright in a photograph if the photographer used a minimal level of basic judgement in taking the photograph. This would include elements such as positioning the object, choice of the angle of shot, lighting and focus, and so on. This approach was adopted in Plc v Rodney Fitch & Co Ltd [2001] E.C.D.R. 5 at 29-39.

The question as to the circumstances in which a photograph could be an original copyright work arose again in a case subsequent to the decision in Infopaq, and therefore had to be considered in the light of the CJEU’s requirement that the work had to be the author’s own “intellectual creation”. The court held that it was clear that the composition of a photograph was capable of being a source of originality. Interestingly, the court equated “skill and labour” with “intellectual creation”, which was a convenient way of reconciling the case law authorities with the position stated in Infopaq: “Ultimately however the composition of the image can be the product of the skill and labour (or intellectual creation) of a photographer and it seems to me that skill and labour/intellectual creation directed to that end can give rise to copyright.” Temple Island Collections Ltd v New English Teas Ltd [2012] EWPCC 1.

Dramatic Works: The statutory definition states only that dramatic work includes “a work of dance or mime”, although plays and film scripts obviously fall within this category also: s.3(1). Note that the definition of “literary work” excludes “dramatic work”, although it is very rarely necessary to distinguish one from the other. A dramatic work must have some sort of movement, story or action. It cannot be purely static. The positioning of objects in a swimming pool to be photographed for a record album cover did not amount to a dramatic work: Creation Records Ltd v News Group Newspapers Ltd [1997] E.M.L.R. 444. The fact of this case highlight the tension between the closed list of categories of subject matter in the UK statute, and CJEU’s focus on “intellectual creation” (which would seem more accommodating of such activity).

Similar issues of general principle arise in relation to dramatic works as are found with literary works. Input into dramatic works which is regarded as ideas rather than contribution to the written expression of the work will not give a share of the copyright: Tate v Thomas [1921] 1 Ch. 503. Similarly, contributions and suggestions made by a play’s director during rehearsals did not make the director a joint author of the play, because they were contributions to the interpretation or presentation of the dramatic work, not to its creation: Brighton v Jones [2004] EWHC 1157 (Ch); [2004] E.M.L.R. 26.

Efforts to protect isolated elements from dramatic works have been unsuccessful. A music hall star alleged that characters, comic business, gags and acting style had been copied from his well-known sketch. The Court of Appeal held that such elements were not in themselves capable of being protected as a dramatic work, although within a dramatic presentation they might form part of the copyright subject-matter: Tate v Fullbrook [1908] 1 K.B. 821. The Privy Council took a similar view in a case involving a popular game show, Opportunity Knocks. The claimant was seeking to protect various recurring features in the show, including the famous “Clapometer”. The features were simply accessories which could be used in a dramatic performance, and not a dramatic work in themselves: Green v Broadcasting Corp of New Zealand [1989] 2 All E.R. 1056. See also Meakin v BBC [2010] EWHC 2065 (Ch).