The work must be an original literary, dramatic, musical or artistic work. Originality means that the work must be the expression of inventive thought.
It is not the idea that is protected. The expression of the idea is protected.
The concept of an original work as interpreted by the European courts differs from the Irish and British formulations. There is a difference in the definition of an original literary work 1963 Copyright Act and the 2000 Act. Works which gain protection as literary works under earlier legislation would be governed by that legislation.
The requirement that there is a work implies some element of substance. Mere spoken words by themselves are capable of constituting literary copyright, but they must constitute part of a work.
Famously a recording of the telling by schoolchildren of biblical stories by the Irish Supreme Court was held not qualify for literary copyright.
“Literary work” means a work which is written, spoken or sung. A literary work includes a computer program, but does not include a dramatic or musical work or an original database. A compilation of information by itself is more likely to be protected as a database.
Copyright does not subsist in a literary, dramatic or musical work or an original database until that work is recorded in writing or otherwise by or with the consent of the author.
Literary works include works in the form of words, written or spoken. Literary, in this sense, is not limited to what might be understood as literature in a cultural sense. It is more akin to the use of the word literature in the context of election publicity material.
Copyright protection does not extend to the ideas and principles which underlie any element of a work, procedures, methods of operation or mathematical concepts. It does not extend to databases, per se whihc are separately protected under the 2000 Act. Copyright may subsist in the contents.
The test is whether the work as a whole is original. It is permissible that the author may have taken inspiration from existing works. The work need not be original at the level of the idea or principle behind the work. Originality does not necessarily require novelty. A work need not show any literary skill or judgement.
Originality lies in the expression of thought in permanent form.However, the work must originate from the author and not be a copy of existing material.
Under domestic and UK case law, originality implies the exercise of labour, judgement and skill. A work may qualify for copyright, even though it involves redrafting, rephrasing and reordering existing work. If the person has created something new rather than merely copied it, it may qualify as a new literary work.
Compilations, translations, and abridgements which derive from other works may qualify for copyright protection. A compilation may qualify for literary copyright if there is a significant amount of skill in its compilation. This does not necessarily mean that they will not themselves constitute an infringement of other work.
EU Standard Originality
The Court of Justice of the European Union has held that originality implies that the work constitutes the author’s own intellectual creation. This is the standard expressly provided for in the computers and database directive.
EU law does not directly provide for the standard of originality with respect to literary, musical, dramatic and artistic copyright. However, the Information Society Directive applies in respect of digital services and is intended to provide a uniform standard. From this, it is argued that the common EU standard of originality applies to literary works.
This approach lays greater emphasis on the intellectual element than the labour involved and is at variance with the traditional interpretation, which also emphasises the elements of labour skill and judgement, but to a lesser extent.
This may mean that some compilations of information, even those involving significant judgement, may be protected as databases rather than literary works. Anthologies and compilations may be original if they involve the intellectual exercise of discretion, skill, judgement and choice.
A literary work need not have any value, cultural, artistic or financial. Copyright is available, notwithstanding the lack of artistic merit. If the level of judgement and skill is minimal or non-existent, literary copyright protection may be denied. The fact that the labour and effort have value may support the argument that the requisite level to qualify for literary copyright has been employed.
Protected literary work must be capable of communicating information or emotion. It must be original and must not be the commonplace everyday method of communicating that information. Methods of operation and mathematical formulae are specifically excluded from literary copyright protection.
Single words, titles, or slogans will rarely, if ever qualify for copyright. They may be protected as registered trademarks or by civil action for passing off. Short phrases are likely to be considered too insubstantial to meet the requisite standard.
The courts are reluctant to give protection and attendant proprietary rights of enforcement to short-word combinations. Invented words are usually treated in the same way.
In contrast, a chorus or short poem will usually suffice to qualify for literary copyright. A literary work may simply constitute facts, letters, messages, commercial documents, advertisements, catalogues, maps, charts, guides, coupons or TV listings. Nonetheless, if its creation involves the requisite level of originality, it may qualify for copyright protection.
Compliations & Arrangements
There may be a separate copyright in a compilation or arrangement. It must be shown that skill has been exercised in the selection and presentation of the compilation. Directories, timetables and similar compilations are commonly protected. The greater the lack of mechanical action and the greater the degree of skill and judgement in a compilation, the greater the likelihood of copyright protection.
It appears that the degree of protection for compilations is less under the 2000 act than the predecessor legislation. This is because of the definition of copyright and the separate protection for databases that now exists. It appears clear that some compilations with the necessary originality, skill and judgement will be protected as literary works rather than just as databases (which affords a lower level of protection).
An ex-tempore speech is unlikely to qualify for copyright. A literary work may include a work that is spoken. A speech or lecture which has been considered, even if not written down in advance, may have the requisite skill and effort. There must be some element of originality, however minimal.
Lectures may qualify for copyright protection at common law, which recognised the proprietary right to thereby control the dissemination of the content.
Formerly, a person who transcribes a speech or records it, might acquire copyright in his or her report of the speech, such as in the case of a journalist reporting and publishing a speech. This might be the case, even in respect of verbatim transcription. However, the absence of originality under the current legislation and EU case law may preclude protection.
Copyright subsists in an original dramatic work. Copyright shall not subsist in a dramatic work or until that work is recorded in writing or otherwise by or with the consent of the author. The work must be capable of performance.
A dramatic work requires something more than a literary work. This might include, for example, background effects, dramatic techniques, movement, lighting and/or elements of the performance. Wholly spoken works, with nothing more, do not qualify as dramatic works.
If a particular format or style is used in connection with a performance, there may be copyright as a dramatic or literary work. A dramatic work implies sufficient elements of presentation and direction. A dramatic work includes choreography and mime.
The format of a game show in one case with certain set phrases, sequences elements and presentation was found in the particular circumstances to be in insufficient material form to qualify for dramatic works copyright. Other cases appear more open to permitting a formulaic program with sufficient tangible elements to qualify.
Films are separately protected. Some films may be capable of being dramatic works.
A musical work consists of music but does not include words or actions intended to be sung, spoken or performed with the music. The work must be reduced to writing or another form.
Words may be protected by literary copyright, while music is protected by musical copyright. The performance may be protected as a dramatic work.
Relatively short tunes or jingles may be copyrighted. A handful of chords or notes are potentially capable of protection.
Arrangements may or may not qualify for copyright. The requisite level of originality is required. In this case, copyright may exist in the arrangement together with the existing copyright in the underlying work.
The addition of new lyrics to an old tune may create musical copyright. Similarly, the addition of new notes to an old tune which is out of copyright may, in some circumstances, be sufficient to qualify for copyright.
An original artistic work enjoys copyright protection. It is a question of degree as to what constitutes an artistic work. A certain level of skill and artistry is required.
The Copyright Act specifically provides that artistic work includes works of the following irrespective of the artistic quality.
A work of any of the following descriptions, irrespective of their artistic quality
- photographs, paintings, drawings, diagrams, maps, charts, plans, engravings, etchings, lithographs, woodcuts, prints or similar works, collages or sculptures (including any cast or model made for the purposes of a sculpture),
- works of architecture, being either buildings or models for buildings, and
- works of artistic craftsmanship;
Photographs & Paintings
A photograph includes a recording of an image by any means or medium. It includes a recording of light or any other radiation on any medium on which an image is produced or from which an image may by any means be produced and which is not part of a film.
It appears that almost any photograph can make the relevant standard. .As with literary copyright, it may be that the European concept requiring intellectual creation limits the earlier understanding and interpretation and requires some intellectual input.
Paintings cover all kinds of paintings, from still life to the highly abstract. Paintings, irrespective of the means and material, will be protected. It must have some element of permanence. Some minimum degree of work is required and a handful of random brushstrokes would not suffice. As with the other categories, the artistic quality is irrelevant.
Drawings & Designs
Drawings and Diagrams, no matter how simple, are protected. They must meet the requisite test of originality. Maps, charts, plans and all manners of architect and engineer’s plans are covered regardless of quality or merit. Simple sketches, labels and basic designs have been protected.
Engravings, etchings, lithographs, collages, woodcuts and print are covered. Protection for engravings was famously lobbied for by the 18th-century chronicler painter and engraver William Hogarth.
Sculptures are specifically defined as including any cast or model made for the purposes of a sculpture. The expression has been widely interpreted to cover works of art as well as virtually any three-dimensional non-functional things.
This interpretation has been argued to be too wide. This might include toy tokens or virtually anything. Recent UK case law appears to have narrowed the interpretation to potentially exclude purely utilitarian mass-produced items. Although artistic quality is not an element, the Supreme Court indicated that sculpture implies some element of craft.
Functional objects may be protected as industrial designs. The fact that the item has some functional element does not disqualify it from protection as a sculpture. The level of skill need not be significant.
Works of architecture, including buildings or models of buildings they are covered by artistic copyright regardless of artistic quality. A building is defined as including any structure. A substantial copying of a building which is original may constitute a breach of copyright.
A residual protected category comprises works of artistic craftsmanship not in the above categories. The category might include utilitarian or designed goods. It is potentially very broad. The availability of copyright turns on the artistic element rather than the functional element. The more functional an item the less likely it is to enjoy artistic copyright.
Hand-carved cuckoo clocks are given as examples of artistic craftsmanship. It potentially extends to mass-produced items. More controversial is whether it covers utilitarian items lacking evident artistic skill.
The UK courts have held that some element of artistic quality is required. Expert evidence may be required in order to reach a decision. Senior UK judges have doubted whether mass-produced objects could be works of artistic craftsmanship.
Suggested tests include
- does the creation involve the exercise of craftsmanship by a person who exercises skill in its manufacture
- does the work have aesthetic appeal
The view has been expressed that machine production is incompatible with artistic craftsmanship
Questions arise as to whether the test is subjective or objective. The intention of the person making the item may be important.