A European Invasion: The effect ofInfopaqon the labour, skill and judgement criterion of originality within UK copyright law

Alex Lyon

This essay will consider the development and continued relevance of the labour, skill and judgement criteria of originality. After a historical overview of originality, the approaches of other jurisdictions such as France and Germany will be assessed. This will highlight that although the differences between the jurisdictions are not as pronounced as they first appear; the UK approach remains less sophisticated. We will then focus on the European Union standard as developed inInfopaqand applied by the UK Court of Appeal inMeltwater. It will be concluded that this European Union standard signals the beginning of the end for the labour, skill and judgement criteria. The criteria are not without merit, having reflected the UKs focus on protecting works from misappropriation. But the European Court of Justice (ECJ) is clearly moving towards a harmonised standard of originality and it is widely believed this standard demands a higher threshold than the labour, skill and judgement criteria can offer.1) The Development of the labour, skill and knowledge criterioni) Early development through authorshipOriginality within English Law is by no means a modern concept. Under the Copyright Act 1842 there was no express requirement of originality. An early formulation of the concept can be found inLewisv.Fullarton:an intention to take for the purpose of saving himself labour[1]. This was further developed inJarrod v Houlstonwhere copyright could be conveyed if the individual originates a work of his own by his own labour and industry bestowed upon it[2]. These two cases are important as they represent the embryonic form of originality- the UK saw labour as decisive and believed it contrary to policy that one mans labour be misappropriated by another.Walter v Lane[3]has been described as the case wherethe essential elements of originality were expounded[4]. Although it was concerned primarily with authorship (as originality was yet to enter the statute) it is still regarded as undeniably good law[5]. The court dismissed the view that a work must be an original composition of value and interest[6], stating this was neither expressly or impliedly present in the statute. It did not matter that the words came from someone else, provided the author displayed labour, skill and capital in producing their work. If this was found the court would not allow another to misappropriate it.[7]Walter v Lanereceived a mixed reaction at the time- Strahan interoperated it as a simple and natural construction on the words of the Copyright Act 1842[8], whilst Mofatt disagreed, believing the court to have come to a startling conclusion[9]. However both were in agreement that the Copyright Act 1842 was not fit for purpose.ii) The Inception of OriginalityThe Copyright Act 1911 saw the inception of originality on statuary footing- however no definition was given. The court addressed this inUniversity of London Pressv London Tutorial[10].Firstly the case clarified that originality had nothing to do with original or inventive thought- this is consistent with the principle established inHollinrake v Truswell[11], that copyright is concerned with expression. Further originality did not require work to be expressed in a novel form, but that the work must not be copied from another work - that it should originate from the author[12]. This is a very low threshold which is further solidified by Peterson Js comment thatwhat is worth copying is prima facie worth protecting[13].Football League Ltd v Littlewoods[14], amongst other cases, solidified the labour, skill and judgement criterion. Claims that the implementation of original into the statute required a higher standard thanWalter v Lanenever came to fruition[15].Ladbroke v William Hillis a more modern example of how the law currently operates- this case related to table and compilations as literary works. The case reiterated the requirement of labour, skill and judgement and that originality required only that the work originated from the author. It also displays that such a low threshold is required to balance two competing policy objectives. Firstly it allows individuals to protect the fruits of their labour whilst also ensuring protection given... is in no sense a monopoly, it is open to a rival to produce the same result if he chooses to evolve it by his own labours[16]. This case also showed the court would consider the pre-expressive stage of the work. Thus labour, skill and judgement in accumulating the information would be considered. Therefore even though the arrangement of the work was not enough to convey originality, its contents were. This is a logical extension of a UK court looking to protect economic rights, but (as will be discussed later) it is expressly at odds with the EU standard.2) General Criticisms of the UK criterionAlthough many more criticisms will come apparent when comparing the UKs interpretation of originality with other jurisdictions, and that of the ECJ, it is important to highlight some fundamental and persistent criticisms received by the labour, skill and judgement doctrine.i) The threshold is too lowFirstly, many argue the threshold is too low. According to Justice Laddie you can have too much of a good thing and we have too much copyright. He believes a major reason for this is the current interpretation of originality[17]. The case law does seem guilty of this. For example inBritish Northrop[18]drawings of bolts and screws were considered sufficient to convey originality. This has led to industrial articles being given proxy protection through the copyright placed on their drawings.Drassinower believes this is because UK courts are primarily concerned with the injustice of an individual reaping where another has sown, rather than protecting and encouraging creative effort[19].However cases such as Merchandising Corporation v Harpbond[20]and Francis Day[21]display that if the labour (or the result) is trivial or insignificant copyright will not be found. This is a significant de minus test, without which any work could be considered original.The historical case of Dick v Yates suggested originality should be something which has grown up in his mind, the product of something which if it were applied to the patent rights would be called invention[22]. This is a significantly higher test and is not the law followed today. But Justice Laddie questions whether if the court had its time again would it offer protection to the trite, the commonplace and the valueless?, or choose a different course[23]. In theory this is agreeable but the unfortunate strength of the labour, skill and judgement criteria is that copyright is currently filling gaps in equity- therefore without statutory reform elsewhere, a higher threshold would leave those who deserve some measure of protection, gaining none. Although, as we shall see, other jurisdictions seem able to make this balance.ii) UncertaintyAnother criticism is that the law remains uncertain. The phrase labour, skill and judgement has been used fluidly by the courts. Indeed inLadbroke v William Hillthe requirements were often substituted with lexis such as work, capital and effort. As well as this and would often be replaced with or. It could be argued that in substance this is not an issue, we know the court are referring to sweat of brow works. But it does support Ricketsons argument thatthe dividing between...original works and unoriginal...works, remains an uncertain and shifting one[24].Another source of uncertainty is the amount of labour, skill and judgement required. According toG.A Cramp & Sons Ltd v F Smythson Ltdoriginality is aquestion of fact and degree[25]. But this can be problematic, as displayed by the case itself. The applicant requested copyright for the selection of tables within a diary. They were refused at first instance, but the Court of Appeal overturned this decision claiming the case was near the line, but the work was original. The House of Lords disagreed with this judgement stating there was no element of skill or originality in the order in which the tables were arranged. This displays the minimal margins that can determine whether originality is found and that more concrete guidance must be given to ensure certainty in the law.However this uncertainty is not denied by the courts: InMacmillan v Cooper[26]Lord Atkinson stated that a precise term could not be given and that each case will largely be determined upon its facts. Some have argued that the inclusion ofthe pre-expressive effort could help remedy uncertainty as it allows a greater appreciation of the degree of labour, skill and judgement used by the author.[27]3) Originality on the ContinentAs we will see the UKs approach to originality differs in comparison with the approach taken on the continent. The primary reason for this is that they mirror different approaches to life and culture. This is reflected in the generic differences between copyright and the continent equivalent ofdroit dauteur.In order to assess whether the labour, skill and judgement remains useful, the alternative approaches taken throughout Europe must be assessed.i) Copyright and droit dauteurThe UK has tended to protect copyright on the basis it has economic value. This is logical- potential right holders are unlikely to invest their time in creating work if they are unable to gain remuneration. Consequently the UKs attitude to moral rights is somewhat restrictive when compared to other jurisdictions- whom grant their authors more extensive protection of non-economic rights[28]. This contrast with other jurisdictions is crucial, as it explains why the UK uses the lower threshold of skill, labour and judgement- sweat of brow works may well require economic investment from which a return is warranted and thus should be protected. Meanwhile jurisdictions that utilisedroit dauteurare likely to demand the author deserves protection through displaying intellectual creation.ii) FranceIn theory the standard of originality on the continent is higher. For example in the French caseCour de Cassation[29]it was held a work must show the imprint of their authors personality to gain protection. This requirement has the potential to remedy the broad nature of the British Law- it allows a low threshold for creative works, whilst making it more difficult for functional works. Therefore it is likely cases such asBritish Northcorpwould be decided differently under French Law. However this standard has been criticised as arbitrary by Waisman whom stated: how is it possible to determine what expressions reflect their authors personality and what expressions do not?[30]In response to this France has adapted its traditional approach. This is displayed by the courts granting protection to compilations, such as specialised TV directories[31]. However it has remained consistent that labour on its own remains insufficient. Therefore tasks such as sorting data, no matter how mundane, will not be protected[32]. In another case the court advisedthe choices and intellectual operations required to create tend to give the resulting work a certain degree of originality, even when dealing with a technical type of work.[33]Thus as one academic put it the French realised that what distinguishes one work from another are creative choices.[34]Prior to this slight relaxation in French law it could have been successfullyargued that whilst the British originality criterion may be broad its outcomes is more certain. However the creative choices doctrine is a much more objectively determinable process than the previous test and seems stronger than the UK approach.iii) GermanyIn Germany the Authors Rights Act 1965 Article 2 (2) states that for a work to be protected; it must be of the authors personal intellectual creation. This higher threshold protects copyrights purpose ofencouraging and protecting the result of intellectual creativity[35], whilst also protecting, in a proportionate manner, those works that do not meet the higher threshold of originality.A good case for displaying the potential differences between Germany and the UK isSawkins v Hyperion[36].Here the UK protected a derivative work as Sawkins had displayed labour, skill and judgement in adding information to produce playable editions of Lalandes music. This would be unlikely to meet the German threshold. However Article 70 of the Authors Rights Act grants a neighbouring right for works that represent the result of scientific analysis and differ in a significant manner from previously known editions of the works or texts, these can be protected for 25 years. It is also possible that Sawkins could have gained protection under the Law Against Unfair Competition, particularly section 4 (9) which concerns theexploitation of anothers reputation or the misappropriation of anothers work.InHyperion v Sawkinsit was held that others could still copyLalande's music, all that was restricted was the use of Sawkins work as a short cut to doing this. There seems no reason why the German courts could not utilise their statutes to come to a solution that was just as agreeable. Indeed it could be argued the UK should consider this approach for more accurate and relevant outcomes, rather than using copyright as a catch-all category.iv) Are the approaches really that different?It is argued that in reality the approaches are not as distinct as their labels suggest. Waisman argued that it is widely accepted that a very small amount ofwhatever the chosen standard requiresis enough to consider that a work is original; that is, a minimum of skill and judgment, a minimum of creativity or a minimum of personality[37]. Thus as only a small amount is needed, the distinction is blurred and most works will be granted protection regardless of the standard used.The strength of this argument can be seen inSawkin v Hyperion Record-this is a controversial case yet originality was granted by both the English and the French courts[38]. The French court held that the intellectual and personal contribution required was satisfied by the personal and arbitrary artistic choices made by Sawkins[39]. Whilst the English claimed the work had not been slavishly copied, but that Sawkins had exercised considerable skill and judgement. It is important to note that the UK courts accepted that double creation is a possibility- whilst the French court would not allow an exact reconstruction of the work to be granted copyright. Therefore Waisman perhaps goes too far in dismissing the labels as meaningless. Valles more reserved opinion is more persuasive- he states that it would be inexact to conclude the differences... have disappeared but the process of convergence promoted by both sides should not be ignored[40]. Therefore it could be argued there is little point in adopting the French doctrine as the outcome of cases would remain the same.v) Berne ConventionWhen comparing the international policies on originality, the Berne Convention must be mentioned as it represents the internationally agreed principles of copyright. Gervais believes that the UK standard is incompatible with the Berne Convention. A reason for this is that Article 2(5) states collections...which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected[41]. Further a WIPO expert committee stated that although Article 2 (1) does not explicitly define originality it indicates that only those productions are considered works which areintellectual creations[42]. Therefore the argument is that originality requires intellectual creation by definition. As stated in The General Report of the Berne Convention Revision conference: we are already using a term which means we are talking about personal creation.[43]However this interpretation may not be as persuasive as it first seems, as Ricketson and Gingsperg claim Article 2 (5) does not indicate how substantial the quantum of creativity should be[44]. Thus it is permissible for Union counties to adopt differing interpretations of the minimum of intellectual creation required[45]. Therefore the UK may be in conformity with the Berne Convention- but the interpretation of other European countries seems closer to the ideal.4)The European Union StandardThe European Union standard has the potential to be determinative on whether the labour, skill and judgement remains applicable. Its use has already been restricted by the Database Directive and the Computer Programs Directive.The Database Directive led to the UK expressly amending the Copyright Design and Patents Act 1988 (CDPA) 3A (2) meaning originality would only be granted to a database by reason of the selection or arrangement of the contents of the database and the database constitutes the authors own intellectual creation. InFootball Dataco[46]the Court of Appeal produced a series of questions for the ECJ to help clarify what this meant and how it differed from the UKs usual approach.The first question was whether the intellectual effort and skill of creating data should be excluded. The ECJ responded that only the structure of the database and not its contents would be considered. Therefore the UK courts could no longer assess the pre-expressive efforts of the author. Further, the ECJ seemed to suggest that authors own intellectual creation represented a higher standard of originality. This is because the court claimed labour and skill was not enough to constitute originality in isolation but that the arrangement of the data must amount to an original expression of the creative freedom of the author. However it is up to the UK courts to determine whether this has been done, therefore there is a measure of discretion.[47]That said, the court also confirmed that a national legislature is precluded from granting copyright protection under conditions which vary from that of Article 3 (1). This is significant: when writing extra judicially Justice Laddie stated that this European standard is not just a raising of the threshold. It imposes a requirement which is fundamentally different in kind. He added that there is now a significant qualitative factor on the test...there must be some subjective contribution, sweat of brow will not do.[48]David Cran agreed, writing directly in response to the ECJs judgement he stated what is clear is that the standard is high[49]. Thus in respect of databases it would seem the labour, skill and judgement doctrine has been subsumed. However it would be premature to state that this definitively signals the end of the UK criterion. This is because the directive was dealing with databases specifically. Further, as Minero points out, works which are similar to databases are still protectable under Section 3 (1) (a)[50].i)The Potential impact of InfopaqTheInfopaq v Danske Dagblades Forening[51], case could well be the extension that signals the end of the labour, skill and judgement criteria. The case concerned whether copyright could subsist in the eleven words belonging to authors of newspaper articles, utilised by the defendants in their data capture process. The ECJ held that it could. In doing so it stated that a work needs to be original in the sense that it is the authors own intellectual creation. It is through the choice, sequence and combination of words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation of a literary work[52].Vousden criticised this decision claiming the ECJ was making law rather than interpreting it. He claimed that the court used a number of legal fictions to support its judgement and that this would make the law more uncertain[53]. This seems agreeable, as Rosati points out, the court derived support from the fact that intellectual creation subsisted in other directives (such as the Software Directive and Database Directive)- however these directives were harmonised to take account of the special features or the special technical nature of the category of work.[54]Thus Vousdan may be correct in arguing that this decision is not a logical application of any pre-existing law.However others disagreed with this- Derclaye believed that the judgement was generally beneficial both for authors and legal certainty. Further she described it as dropping a bomb in the UK copyright landscape[55]. The point about this higher level of criterion being beneficial for authors is interesting. Both Derclaye and Vousdan believe cases such asFrancis Daycould be decided differently underInfopaq. This is because the ECJ clearly wants the national courts to consider qualitative aspects of the work, rather than quantitative - therefore a minimum of two words could convey originality if they demonstrated the authors own intellectual creation through the choice, sequence and combination of words.Derclaye stated the ECJ were implementing creativity as the criterion of originality, meaning skill, labour and judgement had been subsumed and all the cases that developed it, such asLadbroke v William Hill,had been overruled. However, it is important to note that this opinion was voiced before any national court had followedInfopaq.ii) Infopaq on the ContinentMany believed Infopaq followed the approach already adopted by the continent[56], so it would be useful to consider how it has been received in another jurisdiction. In Holland academics were aware of the change. According to Visser in practise, [Infopaq] will make absolutely no difference- however he did state that a court who wants to do it completely right should adopt the formulation of the Infopaq test[57].However some argue the Dutch court has not followed this advice. In the case ofDMO Marketing BVthe judge did mention the authors own intellectual creation- however there was no real substance behind this. For example the judge failed to mention which paragraphs ofInfopaqinformed his decision[58]. Vousdan claimed any reference toInfopaqwas simply judicial vanity and it was clear only national precedent had been considered. He believed if other jurisdictions took a similar approach there would be no hope of harmonisation. Such scepticism from Europe may offer hope to advocates of the labour, skill and judgement doctrineiii) Impact in the UK: MeltwaterInMeltwater[59]the Court of Appeal (COA) had the opportunity to apply Infopaq and did so; however the impact was not as profound as Derclaye might have expected. The facts ofMeltwaterwere similar toInfopaq-Meltwater provided an online media monitoring service for commercial customers. Each news item conveyed to a customer contained a text extract of not more than 256 characters comprising the headline from the article, the first few words after the headline and the context in which the keyword was found. The question for the court was whether copyright could subsist in these texts- a key factor being whether they could be considered original underInfopaqand the consequent effect on previous case law advocating the labour, skill and judgement docterine.The relevant sections ofInfopaqwere stated by the judge. Firstly, Paragraph 48, this displays that originality will be found when an extract expresses the authors own intellectual creation, which is for the national court to decide. Secondly, paragraphs 38-39 were described as having particular importance. According to these sections a part of the work is to be treated no differently from the whole of the work- provided that they contain elements which are the expression of the intellectual creation of the author originality will be found. The judge concluded that copyright could subsist in the headlines.The court inMeltwaterwent on to state the test of quality has been re-stated but for present purposes not significantly altered by the Infopaq case. From this we can infer that the court will still consider previous judgements under the labour, skill and judgement criteria. Indeed inMeltwaterthere was clear evidence that this criteria had been considered; it is not the completed work as published but the process of creation and the identification of the skill and labour that has gone into it which falls to be assessed. It is difficult to assert previous case law has been overruled when the judgement makes such as express reference to the principles developed inLadbroke v William Hill.However the COAs view here is not without qualification or merit. After stating the continued relevance of previous case law the judge recognised many questions remain unanswered by the Court of Justice and the full implications of the decision have not yet been worked out. If we couple this with the courts comments that the EU standard must be followed and that the authors own creation is the only real test, then it would seem the court is leaving the door open to change if EU decisions demands it. However due to theambiguous nature of the standard set out in Infopaq it remains consistent to apply previous case law.Hoppner agrees with this position, he argues that although the UK courts may be relying on an overly expansive interpretation ofInfopaq, they are not wrong to do so[60]. In support of this he cited similar approaches in other jurisdictions, such as the Belgian decision ofCoipresse SCRL V Google[61]. Further, according to Hoppner, the European court does not have jurisdiction to harmonise member states in this area- thereforeInfopaqshould only be seen as clarifying the meaning of reproduction in the context of the InfoSoc directive- which is merely the infringement of a work protected by national copyright. Therefore it is up to the member state to decide what is protectable and own intellectual creation should be seen as nothing more than a minimum threshold.This view seems premature;Meltwateris the first time a UK court has had the opportunity to applyInfopaqand is awaiting appeal to the Supreme Court, therefore the effect of Infopaq should not be discounted just yet. Indeed Rosati believes that, despiteMeltwater, the impact ofInfopaqwill be deep and certainly affect low-creativity and technical subject matter[62]. This would be consistent with the persuasive argument offered by Derclaye above, indeed Hobson stated that the court went astray in their application ofInfopaq[63]. Thus it is possible that as the case law develops the authors own intellectual creation will subsume the labour skill and judgement criteria in the UK.Hoppners argument of the court instilling a minimum standard is also questionable. As discussed above it is widely agreed that the EU standard is raising the threshold in comparison with the UK criteria- so surely applying it as a minimum standard would render labour, skill and judgement insufficient. However this does offer an interesting perspective on the argument made in the previous paragraph that cases such asFrancis Daymay be reversed: if the authors own intellectual creation is only a minimum threshold then national courts could claim that parts of a sentence may not convey originality, thereby protecting news aggregators such as Meltwater.The EU Standard is not without its critics. Stanganelli highlighted a potential conflict with freedom of speech: restricting peoples access to the news is surely contrary to public policy[64]. Bentley agrees, commenting that the court in Meltwater failed to consider the difficult issues. They did not make a qualitative judgement on the precise words used[65]. This is an interesting point if the court do not make a qualitative judgement they are opening everything to copyright protection, potentially creating a lower threshold than labour, skill and judgement. It is clear the EU standard is in its infancy. As the case law develops and more clarity is offered by both the ECJ and national courts, the true impact of the EU standard will become clear. It certainly seems the beginning of the end for the labour, skill and judgement doctrine.ConclusionIn conclusion the European Union standard, although still very much in its infancy, signals the beginning of the end for the labour, skill and judgement criteria. Although some argue the EU standard has made little difference in practicality, it should be remembered that the decision inInfopaqwas rather sudden and as the Court of Appeal said themselves the full implications of the decision have not yet been worked out. But it seems that the standard will be higher and the effect on the UK law will be significant.This should be welcomed: the previous criteria reflected a focus on the law of misappropriation, rather than utilising copyright for its true purpose of encouraging and protecting creative effort. This has led to too much copyright and is stifling economic growth and innovation as a result[66]. A harmonised standard will remedy this, but the ECJ must clarify the authors own intellectual creation standard- so national courts can successfully apply it. In the interim period the labour, skill and judgement criteria may have some use.

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