Peterson J in University of London Press v University Tutorial Press [1916] 2 Ch 601 said: “that which is worth copying is prima facie worth protecting”. Copyright is an exclusive and assignable legal right, arising automatically, covering intellectual property and the work to which it applies. Copyright law enables authors and owners to gain financial reward for their efforts with a view to encouraging future creativity and developing new material. Without legal protection, such material would often be relatively easy for others to exploit without paying the creator. However, Peterson J’s statement seems somewhat exaggerated because in order for the intellectual property work to be protected by copyright it has to satisfy set requirements. Perhaps the most important of those is requirement of originality as it sets the threshold that determines when sufficient work is protected by copyright law.
Before any further analysis of the originality requirement, it is important to note that fundamental concept of copyright law is that copyright does not protect ideas, information or facts, but instead protects the form in which those ideas, information or facts are expressed: Donoghue v Allied Newspaper (1938) Ch 106. The so-called idea-expression dichotomy has been accepted and applied by the courts in the UK throughout the history of copyright, although it is not explicitly stated in the Copyright, Designs and Patents Act 1988 (CDPA 1988), the main copyright law governing Act in the UK. However, it is explicit in Art 9(2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), administered by World Trade Organisation (WTO): “copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.”. On one hand, such concept does not allow creation of a monopoly, however, on the other hand, this on itself negates Peterson J’s statement that is something is worth copying, is worth being protected.
CDPA 1988 does not define what is “original”, however the meaning was attached through case law. In University of London Press v University Tutorial Press itself, Peterson J stated that: “The word ‘original’ does not in this connection mean that the work must be expression of original or inventive thought, and, in the case of ‘literary work’, the expression of thought in print or writing. The originality which is required related to the expression of thought”. By this it was clearly set out that for the purposes of copyright, the term “original” concerns not the ideas but the way they are expressed. Peterson J also continued to say that “the Act does not require that the expression must be original or novel form, but the work must not be copied from another work – that is should originate from the author.’. Therefore, for work to be protected by copyright, the expression of the ideas within the work must originate from the author. Furthermore, in Ladbroke v William Hill [1964] 1 WLR 273 it was stated that the criteria for establishing originality are also skill, labour and judgment exercised while creating the work. However, these definitions were not deployed with great precision and, therefore, series of addition requirements were added through accumulation of case law.
The ‘labour, skill and judgment’ must be substantial or at least trivial. A good illustration of this principle is the case of Merchandising Corporation v Harpbond [1983] FSR 32, where face paint was held to be unprotected by copyright. One of the reasoning for such decision was that the work was a trivial outcome of insignificant amount of labour. Case of Interlego AG v Tyco Industries [1989] AC 217 also added that if the labour in the work is the wrong kind, however considerable it is, it will not make the end product original, and therefore it shall not be protected by copyright. This would be the case when there is a direct copy of another work: British Northrop v Texeam (Blackburn) [1974] RPC 57. This limb of the originality requirement, therefore, further shows that not necessarily all that is worth copying is worth protecting. Furhter, when the idea can only be expressed in one particular way, that expression will not be protected since to confer copyright protection would monopolise the idea: Kenrick & Co Ltd v Lawrence & Co (1890) 25 QBD 99.
In determining whether the work is original, copyright law focuses on the input that the author contributed to the resulting work.