© 2015 Saqib Haroon Chishti. May be reproduced, distributed or adapted for educational purposes only.

What does this ‘mean’ – the sole right to produce or reproduce a work (or a substantial part of it) in any form. The exclusive right given by law for a certain term of years to an author, composer etc. (or his assignee) to print, publish and sell copies of his original work” (Oxford English Dictionary)

▪Natural law view: persons have the right to reap the fruits of their creations ▪Utilitarian view: copyright protection provides incentives for persons to produce works of authorship

Property Right Economic Right Moral Right

The public grants an author a limited monopoly (giving up a public good) and receives Original works of authorship and certain rights to use the work during the copyright term (and rights once work is in public domain)

copyright subsists in –“original works of authorship”

An “original” work is one that was –independently created, and –shows a “modicum of creativity” ‘Originality’ is concerned with the relationship between an author or creator and the work. When copyright says that a work must be original, this means that the author must have exercised the requisite intellectual qualities … in producing the work

Skill and Labour  labour”, “judgment”, “skill”, “work”, “industry”, “effort”, “taste” or “discretion”  “Sweat of the brow”  The guiding principles are that (1) the focus is on expression of ideas, not facts, (2) the work must originate from the author and not be copied, and (3) some intellectual effort is required, the necessary degree varying with the circumstances. Prof. Sterling: “The word ‘skill’ has an extensive import, and covers creative endeavour. So a United Kingdom judgement should have no difficulty applying the test of skill as requiring intellectual creation.”

Modicum of Creativity Two schools of thought in the United States  Objectivist, defined it as something that resulted from skill and labour  Subjectivist, required searching not for evidence of skill and labour but rather for the mark of the author's personality in the work  Feist Publications v. Rural Telephone Service Company, Inc. delivered in March 1991 was hailed both as a landmark decision 2 and a legal "bomb."

Creativity of Mind  The traditional originality test in France is that the work must express or reflect the author's personality.  the expression of (inner) turmoil of the author, the emotional, subjective and non-rational aspect of human thought.  What differentiates one work from another is its irrationality, a reflection of the author's own irrational mind

s.(1)(1)(a) of the Copyright, Designs and Patents Act 1988 states that copyright subsists in “original literary, dramatic, musical or artistic works.” However, the Act does not state what ‘original’ means.

the question arose as to whether certain mathematics exam papers were original literary works. The exam papers just consisted of conventional maths problems in a conventional manner. The word ‘original’ does not in this connection mean that the work must be the expression of original or inventive thought. the originality required by the law is not that of revolutionary new ideas but of the way that the thought is expressed. In order for a work to gain copyright protection, it must originate from the author. The ideas expressed within the work do not themselves have to be new, but the way in which they are ‘put across’ to the audience does.

(Some quality or character which the raw material did not possess, and which differentiates the product from the raw material)

Feist had copied information from Rural's telephone listings to include in its own, after Rural had refused to license the information. Rural sued for copyright infringement. The Court ruled that information contained in Rural's phone directory was not copyrightable and that therefore no infringement existed. U.S. Supreme Court held that it possesses at least some minimal degree of creativity. A work satisfies the “independent creation” element so long as it was not literally copied from another, even if it is fortuitously identical to an existing work. The “creativity” element sets an extremely low bar that is cleared quite easily. It requires only that a work possess some creative spark, no matter how crude, humble, or obvious it might be.

Baker v. Selden, 101 U.S. 99 (1879) 101 U.S. 99 Leading Supreme Court of the United States copyright case cited to explain the idea-expression dichotomy. The court held that a book did not give an author the right to exclude others from practicing what was described in the book, only right to exclude reproduction of the material in the book. Exclusive rights to an "useful art" described in a book was only available by patentuseful artpatent

▪ What works? Literary - generally text as opposed to pictures Books, pamphlets, poems, computer programs Dramatic – Something intended to be acted or performed Films, videos/DVD, plays, screenplays, scripts Musical – Compositions that consist of both words, or music alone Orchestral scores, NBC chimes Artistic – Pictures as opposed to text Paintings, drawings, maps, photographs, sculptures and architectural works Whose rights? The creator of the work (“author”) ownership of copyright is distinct from ownership of the physical object In the case of a work for hire

▪ When Protection Attaches At the moment of fixation Publication Copyright notice not required Registration not required. What rights? To reproduce the work in any material form; To publish the work; To perform the work in public;