The “Originality” Requirement for Copyright Protection in Western Societies

ImageOne requirement for copyright protection in many Western jurisdictions is that a work is “original”. This requirement is explored here at a general level, providing basic philosophical and legal standpoints of this requirement as it exists in modern Western jurisdictions.

The Originality Requirement

“Originality” is a key concept in copyright law in the Western world, and yet its practical implications can be unclear, as well as fleeting with respect to technological developments affecting the arts. Several sources of law can be consulted to begin the building of a understanding on the demands of the “originality” requirement.

The Berne Convention, first signed in 1886 and which establishes a “Union for the protection of the rights of authors in their literary and artistic works”, is one of the oldest treaties on copyright protection. While it establishes basic minimum requirements for copyright protections in the jurisdictions of the signatories, there is little content in the treaty regarding originality, other than that a copyright holder generally maintains rights in his original work. The WIPO Copyright Treaty (WCT) provides slightly more guidance, in that it specifically addresses the fact that the term “original”, as used in the treaty, refers ‘exclusively to fixed copies that can be put into circulation as tangible objects,’ which removes some ambiguity as to how the term is used.

With EU Council Directive 93/98/EEC, signed in 1993, we have an early sign of international agreement as to the term “original” in the context of a prerequisite for copyright protection: a “photographic work within the meaning of the Berne Convention is to be considered original if it is the author’s own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account.”  This meaning seems to remain consistent throughout other pieces of EU legislation on copyright.

A sharper understanding of the term can be gained by looking to case law. The Court of Justice of the European Union (CJEU) has held that a photograph is “original” if the photographer “was able to express his creative abilities in the production of the work by making free and creative choices.”  The Painer court further explained that when a photographer engages in portrait photography, he has many choices to make, such as the background, the pose, the framing, angle of the view, and editing techniques, and thus, “by making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’”. This is at least in part due to the “freedom available to the author to exercise his creative abilities will not necessarily be minor or even non-existent”.

The U.S. Copyright Act (17 U.S.C.§102) states that copyright protection exists for “original works of authorship fixed in any tangible medium of expression”. The U.S. Supreme Court in 1991 clarified “originality” in the case of Feist Publications, Inc. v. Rural Telephone Service Company. It stated that the “requirement is not particularly stringent” and that the “vast majority of works make the grade easily, as they possess some creative spark, no matter how crude, humble or obvious it might be”. The Feist court then decided that the telephone book in question did not meet the originality standard, as the alphabetization of names into a book was a “time-honored tradition [which did] not possess the minimal creative spark required” by law.

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