Introduction
The vexed problem of originality and ‘infringing taking’ in the UK and EU is further complicated with the advancement of technology. Originality, the central element of copyright law is a subject of contention due to the discrepancies in the UK and EU standard. The law of copyright governs the balance between creativity and infringement and this relationship only promises to get more difficult to legally determine in the digital era we are in.
Copyright in the UK and EU
Originality is a contentious issue in the UK and EU due to the discrepancies in the two standards. Copyright laws in the UK are governed by the Copyright, Designs and Patents Act (CDPA) 1988 which protects literary, dramatic, musical, and artistic (LDMA) works of authorship. In the UK, the threshold of originality is ‘labour, skill, and judgment’. This standard requires some degree of skill and labour by the author , but not more than trivial. This standard is very low. If an LDMA work is not original, copyright cannot subsist in the work (Section 1(a) CDPA (1988)). The statute does not define ‘originality’, leaving case law to draw up a definition. The House of Lords in Walter v Lane expounded the essential elements of originality. Mummery LJ pointed out that copyright does not prevent use of information, thought or emotion but of a substantial part of the relevant form of expression. Originality is required to be related to the expression of thought. This was approved in Ladbroke (Football) Ltd v William Hill (Football) Ltd. This cemented the UK threshold of ‘skill, labour and judgment’.
The European threshold is ‘intellectual creation’, as provided in Directive 96/9/EC (Database Directive). The proposed originality definition has been taken to accommodate not just ‘skill and labour’ originality but ‘creative’ originality. This gives rise to complexity as it contends the UK standard of originality. The Court of Justice concluded that the generalized EU standard of originality is ‘author’s intellectual creation’ in Infopaq , and it was for the national court to determine if the elements are expressions of the author’s intellectual creation. The effect of Infopaq was demonstrated in Meltwater – A very small part of the original may be protected by copyright, if it demonstrates individuality reflective of the creation of the author. Intellectual creation, thus, can be broadly interpreted not just to include expression of creativity through choice, sequence and combination of words.
Since Infopaq, there has been judicial divergence in English courts as to the effect of Infopaq and whether the originality threshold has been raised. Infopaq did qualify the long-standing originality test of landmark English cases stated above such as University of London Press and Ladbroke. The Court of Appeal in Meltwater took the view that Infopaq made minimal difference. This has been criticized for being too simplistic a starting point, and a more appropriate response was to shift the focus, or even, place a greater burden on the “judgement” element of the test. In 2013, the Court of Appeal shifted their views on the effect of the Infopaq judgment in SAS Institute v World Programming Ltd suggesting that it may have changed the traditional UK test. Lord Justice Levinson stipulates that Infopaq has, in fact, raised the hurdle to obtain copyright protection. This difference in standards creates an incoherence in the law and the way the courts interpret “originality” in the UK.
Idea/Expression Dichotomy
The idea-expression dichotomy was entrenched in Art 9(2) of TRIPS explicitly stating that copyright protection does extend to expression, and not ideas. This dichotomy limits the scope of copyright protection by differentiating an idea from the manifestation of the idea (an expression). This stems from the fact that an idea cannot exist apart from its’ expression. Lord Hoffman suggested that ideas may not be copyright protected because they are insufficiently original and they are ‘commonplace ideas’ that do not from a substantial part of the work.
The replication of ideas is a common occurrence in the social media realm. For example, in 2016, Instagram implemented the “Stories” feature, a core concept of Snapchat onto their platform. Stories, essentially, allows users to post content into a continuous narrative with a 24 hour life-span. Instagram has not infringingly taken the expression, but merely the idea of “Stories”. The Snapchat Stories feature is an idea which underlie its’ interface and is not protected by copyright by virtue of Art 11 of the Software Directive. This, therefore, does create an outer limit to the scope of copyright protection. This alludes to contention as the concept of originality is mutually contradictory to the idea-expression dichotomy. This is because originality focuses on creativity idea-wise, whereas the idea-expression dichotomy stipulates a distinct expression-wise focus of creativity. The core value of copyright law is balancing creativity and infringement, and the idea/expression dichotomy does not play a major role in this equation. Thus, the courts have moved away from distinguishing, or even mentioning this dichotomy and have prioritised the “infringing taking” or “substantiality” approach.
Infringement
‘Infringing taking’ stems from primary infringement. To establish infringement, the claimant has to prove the civil burden of proof, that is, on the balance of probabilities the defendant has contravened the rights of the copyright holder, there is a causal link between the work used by the defendant and the claimant’s work, and either the restricted rights of the whole or a substantial part of the author’s work was used without authorisation.
Causal connection is proving that the infringement was derived from the original copyright work, either directly or indirectly. Simply put, to establish infringement, there must be copying. Courts may presume a connection where the claimant can show similarity and that defendant had the opportunity and access to copy the copyrighted work. As seen in IPC Media v Highbury Leisure and IBCOS Computers , the courts are willing to infer derivation. The paradox, Hoffman J observes, is the resemblances of small, inessential elements of the copyrighted work which plays a major role in proving derivation.
Common errors are considered the strongest evidence of infringement, giving rise to and of themselves a prima facie case of copying.
Legislation, specifically, s.16(3)(a) stipulates that copyright does not depend on the whole work being copied. The restricted act may constitute infringement where a substantial part of the protected work is taken. The courts have taken a flexible approach of what constitutes a substantial part of the copyrighted work. The standard of work that is considered ‘substantial’ has shifted to a more stringent one. Lord Millet has described this as being a matter of impression and clarified it is a quality over quantity based approach. Lord Hoffman elaborates “quality” is examined based in the reason copyright protection is given to the work in the first place. Modification chips (modchips) are electronic devices used in videogame consoles to modify or disable built in restrictions. It is illegal to use sell and distribute modchips in England, as stipulated by Section 296ZB of the CDPA 1988. The jury, in R v Gilham , found modchips were copying a substantial part, or ‘infringing taking’ of copyright works and therefore does constitute infringement. Lord Justice Stanley Burton denotes that the meaning of “substantial” is not the quantity copied but the quality, or/and significance to the copyright work. This, however was not the line of reasoning used in Football Association Premier League Ltd v QC Leisure , where Kitchin J ruled that there was no infringement of copyright based on the fact that four frames that occupied a fraction of a second in a film could not amount to a substantial part. This was decided on the same premises of Designers Guild Ltd v Russell Williams (Textiles) Ltd , where the House of Lords decided the conjoined expression had involved original skill and labour, but also, did constitute copying a substantial part of the artistic work. This shows contention in the way ‘substantiality’ is interpreted by the courts.
Owners of copyrighted works in computer programs, databases, and authorial works have a right to control reproduction of the work, in whole or ‘in part’. This, takes the ‘infringing’ out of ‘infringing taking’ essentially, giving the owners control of their own works. The taking of the work, as demonstrated in Infopaq shows that parts of the work are entitled to the same protection of the work as a whole, if the parts in question did “contain elements which are expression of the intellectual creation of the author of the work”. Newspaper Licensing Agency Ltd v Marks and Spencer established that the test for substantiality is one of quality and not quantity. In Meltwater, the main question was whether the conduct of business, on a balance of probability when copied by the clients, is prima facie infringing the publishers’ copyright in the original work.
Transformative use and fair dealing
The contention between originality and infringement in the UK further complicated by doctrinal developments that support transformative use and the recognition of a fair use defence. Transformative use may be described as the grey area of the ‘substantial part’ doctrine. This is because the law allows a change, or accurately a ‘transformation’ to prior work, meaning no substantial part of the claimant’s copyrighted work survives in the defendant’s work. The defendant, thus, would have to have surpassed the ‘labour skill, judgment’ test of his own work in order for it to be deemed original.
The fair dealing defence is set out in s.30 of the CDPA 1988. Lord Denning states that the definition of fair dealing is a question of degree, and is a matter of impression. This shows that the test is at best, flexible or at worst, uncertain as the wording of the statute may be construed widely. The UK courts have taken a purposive interpretation of the statute. In practice, this significant interpretive role could lead to legal uncertainties. Gowers criticises the UK fair-dealing exception to be insufficiently flexible in the digital age. This inflexibility may lead to decrease content creation. The controversial decision in Meltwater exhibits a tightening of the ‘fair dealing’ interpretation.
The aim of fair dealing, ultimately, is to balance infringement of copyrighted works and wider public interest. Parodies are an exception to copyright, to the extent it is fair dealing. The correct test of whether a parody amounted to an infringement was whether it made use of a substantial part (as per s.16(3) of the CDPA 1988) of the expression of the original work. This is a fact-specific assessment – a fair amount of a copyrighted material may be used without the owner’s permission. The sole test is whether the defendant’s work has reproduced a substantial part of the claimant’s original. This is however, also subject to moral rights held by the owners of the copyrighted work. This gives the author of copyright work not to have his work subject to derogatory treatment, as per s.80 CDPA 1988. This subsection can be taken to mean moral right of integrity is coherent to transformative use.
Artificial Intelligence – “They came, they created”
Copyright law threads a fine line between creation of expressive works and protection of author’s exclusive rights. In this respect, technology is a funambulist. The advancement of technology, such as artificial intelligence (AI) and social media has increased the complexity of the relationship between creativity and infringement. Technology has is not only a platform that furthers creativity but, paradoxically, a platform that furthers infringement. In the last decade, there has been an increase in the use of technology in almost all industries. Local law firms, in the likes of Addleshaw Goddard has deployed artificial intelligence mechanisms, ‘Kira Systems’ and have integrated the use of technology to provide legal services more effectively and efficiently. Copyright laws in turn, evolved from ambiguous and incomplete to detailed, narrow, and backward-looking.
The copyright system is a product of law-makers learning from an analogue world , that existing copyright principles should merely be adapted to the new technological environment than fundamentally rethought. . Guadamuz proposes to establish an exception to the works created by sophisticated artificial intelligence – such as self-learning machines. The Next Rembrant artwork- an artwork was generated by a computer through pixel by pixel analysis of thousands of works by the 17th-century artist is the epitome of technological advances where creative decisions are made by computers and not humans. Precisely put, they are the expression of a computer learning by itself based on pre-determined parameters set by programmers.
Section 178 of the CDPA 1988 denotes work generated by computers is capable of copyright protection. Copyright protection may subsist in computer programs, given that it is original, as per Art 1 of the Software Directive (Directive 2009/24/EC of the European Parliament and of the Council). However, the complexity arises regarding copyright subsistence in AI-generated works, where there is uncertainty (or even, absence) in the human creation and arrangements made necessary for the creation of work. This is only further obscured by European standard of originality. Attorney General Trstenjak, in the Painer case , has remarked that ‘only human creations are…protected’. This was echoed in the Monkey Selfie case clarifying the fact that as a general rule, non-humans are not entitled to copyright protection. In this case, the greatest debate was whether a monkey could claim copyright in its’ selfie. The Supreme Court clarified that the literal rule should be used to interprete the 1988 Act. Liu states that this is supported by legislative history of the Act. Words such as “computer”, “computer-generated” and “person” in the CDPA were never and could never be intended as terms subject to broad interpretation. The judgment in Naruto v Slater is consistent with the CJEU approach in Infopaq, requiring the work to be the ‘authors intellectual creation.’ The selfie would not have materialised, if not for the creativity of the author. Setting up a camera, adjusting its’ settings and inducing a monkey to press the shutter does account for his own “intellectual creation”. It is unambiguous, that like a monkey, a computer is not human. This begs the question: Does this restriction extend to computer-generated works? Painer has indicated that no computer generated work can be protected by copyright in accordance with European law.
In response to technological advancements, copyright law has been expanded to uphold the balance of the protection-creativity mechanism. This is exemplified by the duration of copyright protection. The traditional approach is that duration exists for a period necessary to incentivise creation, then the work will go into public domain. Art 7 of the Berne Convention stipulates that copyright protection will subsists for 50 years plus life. It is important to remember, there was little contemplation of the reality of machine learning and other forms of AI technology when the CDPA was drafted.
The economic importance of copyright is monumental. Creative rights are justified through economic validity. Economic incentive of copyright works is also debated by Hardin and Heller who have contrasting views of the ownership of copyright- as common property or private property. The solution is incentivising ‘just enough’ creativity. The problem lies, as Wigmore states, in the fact that there is no “equilibrium” – there is no ‘correct’ balance between creativity and infringement for copyright laws to hinge on. This is supported by the impossibility theorem which stipulates copyright law cannot deliberately be directed to an evolutionary end-state. In light of artificial intelligence and evolution of social media with monkey selfies and memes, copyright law is contentious due to its’ static and inflexible nature in respect to the heterogeneous and dynamically evolving reality of copyright.
Art 11 & Art 13- a blunt instrument?
European Union Directive in the Digital Single Market is made up of Art 11 (‘link tax’) and Art 13 (‘meme ban’). This proposal aims to improve the position of right-holders in negotiating and being remunerated for the exploitation of content by online services giving access to user-uploaded content. Essentially, Article 11 and Article 13 are deemed to be the solution that balances expression and infringement. This will supposedly, direct more revenue towards content creators, fostering creativity. This will shift the onus from copyright holders to major social media companies to ensure copyrighted materials are not illegally shared across these platforms. The EU Directive in the Digital Single Market may tip the balance between infringement and creativity too far, creating a disproportion and will “change the Internet as we know it”.
Lawmakers has been criticized for looking at copyright from one perspective- and that is, of big media companies. Social media platforms as being the greatest public space used to exhibit the freedom of expression and views Art 13 as a mean to solve problems that were not caused by copyright law in the first place. YouTube has vilified Art 13 as being a threat to creativity. Arguments supporting this directive advocate for “fair and sustainable” platforms that compensate creators and do not exploit them. Art 13 may come into existence as a form of an automated filtering measure to prevent the sharing of copyright infringing material. These automatic filters will be so complex, giving an edge to tech giants. Infojustice described this automatic filtering proposal as ‘a bad idea disguised as a solution to an imaginary “value gap” turned into a crisis for the future of the Internet’.
This Act was dubbed the “meme ban” because many internet memes are created from images that are subject to copyright protection, that is unlikely to surpass the automatic filters. Memes are defined as a ‘unit of replication’ by Dawkins. Internet memes exemplify a version of online pop- culture Darwinism. This is because, the essence of a meme, an element of a culture, is passed from one person to another by imitation or replication in a gene-like manner.
Griffins stipulates that in the digital era, the mere existence of technology itself, creates the expectation that certain reproductions should be possible, and should not fall foul under copyright law. Art 13 undermines this broader societal analysis of memes. Copyright encourages larger changes to earlier works that go beyond taking of ‘any substantial part’ as stipulated by s.16 of the CDPA. Art 13 in essence, is threading the line between creativity and infringement. However, it may be a step too far in policing infringement and may have an adverse effect on creativity. This meme ban will in effect, transform the Internet from an open platform fostering sharing creativity and innovation, into a tool of automated surveillance and control of its’ users.
In light of Brexit, UK Courts may be tempted to abandon this ostensible notion anchored in EU Directives and return to previous precedents. As of now, in light of the ‘Great Repeal Bill’, the author’s own intellectual creation test will remain as the threshold of originality. In crux, the future of copyright laws lay on the modifications and amendments of legal doctrine to accommodate the multitude of gravitational and centrifugal forces at play.
Conclusion
In crux, originality and infringing taking in the UK and EU is a contentious issue due to the discrepancies in the two standards- ‘skill, effort and judgement’ and ‘author’s intellectual creation’. This is further convoluted by the advancement of technology. The CDPA 1988 has proven to be not adequate in this digital era, giving rise to complexity in areas such as AI and social media. The relationship between creativity and infringement is examined in detail in regards to the European Union Directive in the Digital Single Market and its’ anticipated effect in the UK and EU, as a whole.
Has Brexit changed this position? (an update)
The departure of the UK from the EU (Brexit) has had significant implications on the topics discussed in the above essay, particularly in areas where UK law once aligned closely with EU directives and case law. Below are the key changes and considerations post-Brexit:
1. Divergence in Copyright Standards
- Originality Standard: Post-Brexit, the UK is no longer bound by the European Court of Justice (CJEU) rulings, including those like Infopaq, which influenced the UK’s interpretation of originality. The UK may choose to diverge from the EU’s “author’s intellectual creation” standard and revert fully to its traditional “skill, effort, and judgment” test. However, as of now, the UK has largely retained EU-influenced standards in its domestic law.
- Potential for Change: Over time, UK courts and lawmakers may redefine originality, possibly leading to a more distinct national standard that departs from the EU’s influence.
2. Impact of the Digital Single Market Directive
- Article 11 & Article 13 (Now Articles 15 and 17 of the DSM Directive): These provisions, focused on online content and platform liability, were highly controversial and sparked debates on how they would be implemented in EU member states. The UK, having left the EU, is not required to implement these directives. This means the UK can develop its own approach to issues like the “link tax” and the so-called “meme ban.”
- UK’s Approach: The UK may choose to create a more flexible regime that favors content creators and users or stick to a stricter approach depending on its future digital policies. However, there is still uncertainty about whether the UK will introduce similar legislation or move in a different direction entirely.
3. Court of Justice of the European Union (CJEU) Jurisprudence
- Influence on UK Law: The CJEU’s decisions, such as in Infopaq, have been influential in shaping UK copyright law, especially concerning the threshold of originality. Post-Brexit, UK courts are no longer obliged to follow CJEU rulings, which could lead to divergence in case law over time.
- Historical Influence: While existing CJEU rulings still influence UK law, future UK cases may develop independently, leading to potentially different interpretations of what constitutes infringement and originality.
4. AI and Copyright
- Autonomy in Decision-Making: With the UK outside the EU, there is greater autonomy in addressing emerging issues like AI-generated works. The UK may develop its own frameworks for dealing with copyright in the context of AI, potentially diverging from the EU’s stance that only human creations can be protected.
- Legislative Flexibility: The UK could introduce specific legislation to address AI-generated content, potentially providing clearer guidelines than those currently influenced by EU directives.
5. Infringement and Fair Dealing
- Fair Dealing vs. Fair Use: The UK retains its fair dealing provisions, which are narrower than the US fair use doctrine. Post-Brexit, the UK may consider reforms to its copyright exceptions, possibly broadening them to foster innovation and creativity, particularly in the digital and AI sectors.
- Transformative Use: UK courts may start to interpret transformative use differently, especially without the direct influence of CJEU rulings. This could either broaden or restrict what is considered non-infringing, transformative use.
6. Future of UK Copyright Law
- Potential Reforms: The UK has the opportunity to reform its copyright law in a way that balances protecting rights holders with promoting innovation, particularly in response to the challenges posed by digital technology and AI.
- Consultations and Reviews: The UK government has been holding consultations on post-Brexit intellectual property frameworks, which may lead to reforms reflecting both global trends and domestic priorities.
In summary, Brexit has created both challenges and opportunities for UK copyright law. While the UK has maintained much of its pre-existing legal framework, the potential for divergence from EU law remains significant, particularly in response to technological advancements and digital content regulation. The full impact of these changes will likely become clearer as new case law develops and as the UK government possibly introduces legislative reforms.