In copyright law, the threshold of originality is used to assess whether a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not. In this context, "originality" refers to "coming from someone as the originator/author" (insofar as it somehow reflects the author's personality), rather than "never having occurred or existed before" (which would amount to the protection of something new, as in patent protection).Definitions taken from Webster's new universal unabridged dictionary, .
Copyright finds its international commonality in the Berne Convention that creates the foundation of several concepts of international copyright law; however, the threshold for attracting copyright is not defined. This threshold is up to each jurisdiction to determine. While works that do not meet these thresholds are not eligible for copyright protection, they may still be eligible for protection through other intellectual property laws, such as trademarks or design patents (particularly in the case of logos).
Originality in specific types of works
Pre-positioned recording devices Security cameras, webcams, camera traps and other pre-positioned recording devices capture whatever happens to take place in their field of view. This raises the question as to whether their recordings are an original and therefore copyrighted work.
This question remains untested in the United States. In the 2008 United States district court case Southwest Casino and Hotel Corp. vs Flyingman, the casino filed suit for copyright infringement on the use of their surveillance video, but the defendant argued in a motion that the surveillance video lacked the sufficient creativity needed to secure copyright protection.Southwest Casino and Hotel Corp. v. Flyingman, Case Number CIV-07-949-C Defense Motion for Summary judgment (W.D. Okla., 28 Aug. 2008). Retrieved 21 April 2013.Southwest Casino and Hotel Corp. v. Flyingman, Case Number CIV-07-949-C Memorandum and Order (W.D. Okla., 27 October 2008). Retrieved 21 April 2013. However, the case was never heard as a separate tribal court ruled that the tribes, rather than the casino, owned the footage. The United States Copyright Office has allowed copyright registration of dashcam footage.Examples:
In the United Kingdom the topic came up in 2000, during the aftermath of the death of Diana, Princess of Wales and Dodi Fayed, when a security guard at a property owned by Dodi's father, Mohamed Al Fayed, took still-frame photographs from security video – which showed the couple in the driveway just before their deaths – and sold them to a newspaper. Al Fayed and his privately held security company filed suit, alleging, among other things, infringement of copyright. In that case, Hyde Park Residence Ltd v. Yelland before the Court of Appeal of England and Wales,English Court of Appeal: Hyde Park Residence Ltd v Yelland & Others EWCA Civ 37 (10 February 2000); URL retrieved 2011-01-11. "ownership and subsistence of copyright were not in dispute", because, "as section 1 of the 1988 Act makes clear, copyright is a property right" which was owned by the security company. Ultimately, that case concluded that copying and selling the photographs did not lead to a defence of fair dealing, nor did it serve the public interest.
In New Zealand, the Copyright Act 1994 requires films to be original to qualify for copyright protection. However, according to law professor Susy Frankel, case law supports a low threshold of originality, so arguments could be made that such recordings can be copyrighted because placing and operating a video camera involves "skill, judgement, and labour". She states that it's also possible that security camera films would not meet the threshold, and that "each case must be assessed on its facts".
In Canada, "skill and judgement" are required for a photograph to be protected by copyright, and a photograph meets this threshold "even by the particular angle and point of view" according to the Canadian Internet Policy and Public Interest Clinic. However, legal scholar David Vaver has expressed the view that "whether scenes taken by an automatic surveillance camera are authored by anyone is doubtful: the person responsible for positioning the camera is no Atom Egoyan. Such authorless films may have no copyright at all".
In the law of continental European countries, works are required to be original to have copyright protection. According to a 2002 book by professor and lawyer Pascal Kamina, written before the European Court of Justice harmonised the threshold of originality between European Union member countries in 2009, "it is unlikely, however, that security camera videos would be considered original".
Russian copyright law specifically exempts purely informational reports on events and facts from protection, and security camera footage is not considered a work of authorship. This interpretation was applied in a number of Russian legal cases.Ruling of the Ninth apellate arbitration court of 20.04.2011 No. 09АП-2257/2011 on case No. А40-113912/10-12-720; Decision of the Arbitration court of city of Moscow of 04.02.2011 on case No. А40-131349/10-67-236
Works by non-human authors A similar topic came up in 2011, when the Caters News Agency asked the website Techdirt to take down a photo that Caters had licensed from nature photographer David Slater. The image—a self-portrait taken by a wild monkey using Slater's camera—had been used to illustrate a post questioning whether Slater could even hold any copyright interest in the image. Slater argued that he had copyright interest in the photo because he had "engineered" the shot, and that "it was artistry and idea to leave them to play with the camera and it was all in my eyesight. I knew the monkeys were very likely to do this and I predicted it. I knew there was a chance of a photo being taken." Aurelia J. Schultz disputed Slater's claims, noting a monkey would be incapable of holding a copyright in Indonesia (where the photo was taken), the United Kingdom, or the United States, because it is not a legal "person". In December 2014, the United States Copyright Office issued an opinion that works by animals cannot be copyrighted because they were not a work of authorship by a human, but the copyright office did not rule on whether Slater or the monkey would be considered the author of those specific images.
Uses of the concept of originality by country
Australia
Despite consisting only of two fields and a circle at the centre, the Federal Court of Australia had upheld copyright claims over the Australian Aboriginal flag by its designer, Harold Thomas. On 24 January 2022, the Commonwealth government announced, after more than three years of confidential negotiations, Thomas had transferred the copyright to the flag to the Commonwealth. Text may have been copied from this source, which is available under a Attribution 4.0 International (CC BY 4.0) licence. The federal government paid AUS$20.05 million to Thomas and licence holders (including WAM Clothing and Carroll and Richardson Flagworld) to extinguish existing licences and secure copyright. As part of the copyright transfer, Thomas retained moral rights over the flag (which include the right to be identified as its creator). Following the copyright transfer, Carroll and Richardson Flagworld continued to be the exclusive manufacturer, although individuals may make copies for personal use.
Canada Under Canadian copyright law, an eligible work must be original to its author, not copied from another work, and requires more than trivial or mechanical intellectual effort.David Vaver, Intellectual Property Law, 2nd Edition, Irwin Law: Toronto, 2011. at pg 100. In the case of CCH Canadian Ltd v Law Society of Upper Canada, the Supreme Court of Canada examined the different approaches taken to the definition of originality. The Supreme Court ultimately concluded that the proper approach in Canadian law fell between the approach of labour and diligence, and that of creativity. Chief Justice McLachlin stated that the "exercise of skill and judgment" was necessary in order for an expression to attract copyright protection. Chief Justice McLachlin went on to state that the exercise of skill and judgement would require "intellectual effort" and "must not be so trivial that it could be characterized as a purely mechanical exercise." It has been suggested that this approach taken by the Supreme Court of Canada is functionally the same as the approach taken by the Supreme Court of the United States in Feist Publications, Inc., v. Rural Telephone Service Co., and by some civil law courts as those courts require that a work demonstrate a "modicum of creativity" in decision making rather than a mechanical exercise in order to be original.
European Union The test for the threshold of originality is in the European Union whether the work is the author's own intellectual creation. This threshold for originality was harmonised within the European Union in 2009 by the European Court of Justice in Infopaq International A/S v Danske Dagblades Forening case.in Infopaq § 37 the European Court of Justice rules that subject-matter [protected by copyright] is original in the sense that it is its author's own intellectual creation.
Germany
In German copyright law, the "Schöpfungshöhe" (literally: height of creation) could classify copyrightable works into two classes, a design, or anything else (such as a literary work). While the threshold (which is reached even by simple creations, known as "Kleine Münze", German for "Small coin") was low, the requirements for design, works that have a "purpose" (such as brand identification), was set much higher, as "novel" designs could be protected by the lex specialis law for design patents ("Geschmacksmustergesetz") or by trademark laws. Only design creations that were very high above the average were considered to be "works of applied art" and so granted copyright. As an example in case law, the logo of the German public broadcaster ARD was considered ineligible for protection under German copyright law.
In November 2013, the Federal Court of Justice rejected the concept of a lower standard for applied artworks in the Geburtstagszug case. The court ruled that per changes made to German law in 2004 by the implementation of the Directive on the legal protection of designs, copyright and design right were two separate concepts that could co-exist in applied art, as they had different requirements; novelty and an "individual character" for design right, and "a degree of creativity which allows, from the view of a public open to art and sufficiently skilled in ideas of art, to be called an 'artistic' performance", for copyright. This makes the threshold nearly identical to that in other forms of works. The case centred around the creator of the "Birthday Train", who had received royalties from a design patent but wanted to also collect royalties on the concept as a copyrighted work.
In June 2016, a state court ruled in a complaint against the Wikimedia Foundation by the Reiss Engelhorn Museum that digital reproductions of public domain works are subject to a new copyright.
Netherlands A controversial decision on 16 July 2013 rendered "backseat conversations"—such as those between Willem Endstra and police—not sufficiently creative for copyright protection.
India Section 13(1)(a) of the Copyright Act, 1957 (which is largely derived from the British Copyright Act 1956) states that copyright subsists in "original literary, dramatic, musical and artistic works".