Originality

Originality is the aspect of created or invented works as being new or novel, and thus reproductions, clones, forgeries, or derivative works. An original work is one not received from others nor one copied from or based upon the work of others. It is a work created with a unique style and substance. The term "originality" is often applied as a compliment to the creativity of artists, writers, and thinkers. The modern idea of originality is tied to Romanticism,[1] by a notion that is often called romantic originality.[2][3][4]

"Original" redirects here. For other uses, see Original (disambiguation).

The concept of originality is culturally contingent. At the time of Shakespeare, it was more common to appreciate the similarity with an admired classical work, and Shakespeare himself avoided "unnecessary invention".[5][6][7] It wasn't until the start of the 18th century that the concept of originality became an ideal in Western culture.[5][8]

Originality in law

In law, originality has become an important legal concept with respect to intellectual property, where creativity and invention have manifest as copyrightable works. In the patent law of the United States and most other countries, only original inventions are subject to protection. In addition to being original, inventions submitted for a patent must also be useful and nonobvious.

In United States copyright law and the law of many other states, copyrights protect only original works of authorship, a property which has been historically and legally linked to a concept of "creativity". A work must pass a threshold of originality in order to be copyrightable.[9]

In United Kingdom intellectual property law, a derived work can demonstrate originality, and must do so if it is to respect copyright.

In the copyright law of the United States, more specifically under 17 U.S.C 102, the work that is sought to be protected must satisfy the threshold for originality.[10] Though most of the countries require certain degree of originality in the work sought to be protected, such requirement does not stem from either the Berne Convention or the TRIPS Agreement.[11] Therefore, there is no uniformity in the standard for originality. In the United States, originality necessitates bare minimum degree of creativity and independent creation.[12] The Supreme Court of the United States in the case of Feist Publications v. Rural Telephone Service Co.[13] held that the work must be independently created and must possess minimum degree of creativity. This interpretation requires an extremely low level of creativity and in the words of the court, “must possess some creative spark no matter how crude, humble or obvious it might be.”[14] The court also took the opportunity to reject the previously judicially-established and followed the sweat of the brow doctrine. According to the said doctrine, labour and hard-work alone could suffice to establish originality. After the doctrine was rejected by the Supreme Court in 1991, in the Bridgeman Art Library v. Corel Corp[15] case, the court held that the copies of public domain photographs could not be copyrighted since they lacked originality and while such reproductions may have involved skill and labour, no protection could be granted to them, on account of lack of originality.

While the current legal requirements of originality viz. minimum level of creativity and independent labour can be easily assessed and applied in case of literary works, the courts are required to undertake a deeper legal and factual inquiry in photographic works. The United States District Court for Southern District of New York in Mannion v. Coors Brewing Company[16] considered originality in terms of timing, subject and rendition, and held that the nature and extent of the copyright would be independent in the three aspects. The requirement for originality was incorporated in the statute only in the Copyright Act, 1976 and over the course of time, the courts have evolved various metrics to apply the test.[17] Unlike, Patents, novelty is not required for a work to be considered as original.[18] The United States Court of Appeals for the Second Circuit in Sheldon (1936)[19] had clarified that sometimes it is relevant for other purposes. Therefore, if the work created by you is identical to a pre-existing work but you are unaware of the latter's existence, you may still enjoy copyright protection for your work.

Apart from novelty, the work is not required to be made with an intent to be original. What is considered is only that it is actually an independent creation in effect. In 1951, the court in Alfred Bell Co. v. Catalda Arts[20] held that the question as to whether there was intent to be original was not to be considered. The Supreme Court of the United States has also clarified that it is not necessary for the work to be artistic to qualify as original. Furthermore, in the landmark ruling, the court observed that it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Monet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. This observation was an embodiment of the principle of artistic or aesthetic neutrality which seeks to eliminate the inherent subjectivity involved in the judges deciding whether the work is artistic, and hence, the question as to whether it warrants protection. The principle finds four broad justifications- (i) lack of expertise in the judges (ii) fear of elitism (iii) fear of paternalism (also called parentalism) (iv) lack of consensus on what constitutes art. However, scholars note that the principle of aesthetic neutrality is often violated as the adjudicators end up favouring creators of what they believe is deserving of copyright grant.

In the United States, the work is not required to be non-commercial in nature for copyright protection and unlike the US trademark law, the work need to be necessarily lawful. Therefore, works created for commercial purposes, such as advertisements can also be granted a copyright.[21]

Section 13(1)(a) of the Indian Copyright Act, 1957 mentions 'originality' as a requirement for copyright protection to literary, dramatic, musical and artistic works. Courts have interpreted this requirement of 'originality' in different ways. This has given rise to various doctrines/tests that can be helpful in determining whether a work meets the threshold of originality. The most prominent case with respect to 'originality' under the Indian Copyright Law is the Eastern Book Company v DCB Modak.[22] This judgment gave rise to two doctrines i.e. modicum of creativity and the skill and judgment test. This remains the accepted and current position of law in India as of now. However, prior to this, the Indian Courts used to follow the Sweat of the Brow approach.

"Sweat of the brow" doctrine

This theory bases the grant of copyright protection on the effort and labour that an author puts into their work as opposed to the creativity involved. Locke's theory of labour as property has often been extended to give jurisprudential basis to this theory of copyright law. In the case of V. Govindan v E.M. Gopalakrishna Kone,[23] it was held that compilations of information would meet the threshold of 'originality' under the Indian Copyright Act since it involves some level of 'skill, labour and brain'.[24] A similar line of reasoning was adopted in the case of Burlington Home Shipping Pvt Ltd v Rajnish Chibber[25] where a database was held to be original enough to be protected by copyright under Indian law. However, like in other jurisdictions, this theory was discarded by the Indian Courts also and the focus was shifted to the creativity involved in any work.

EBC Modak case (modicum of creativity and skill and judgment test)

The EBC Modak case is the Indian counterpart of the Feist Publications case in terms of the test it laid down. It concerned the copyrightability of Supreme Court judgments that were copy-edited and published by Eastern Book Company. These judgments were published along with 'headnotes' that were written by the Company itself. While explicitly discarding the Sweat of the Brow theory, the Court held that simply copy editing would not meet the threshold of originality under copyright law since it would only demonstrate an "amount of skill, labour and capital put in the inputs of the copy-edited judgments and the original or innovative thoughts for the creativity would be completely excluded.".[26] Thus, it introduced the requirement of 'creativity' under originality. With respect to the level of creativity involved, the court adopted the 'minimal degree of creativity' approach. Following this standard, the headnotes that did not copy from the judgment verbatim were held to be copyrightable.

Finally, the Court also gave way to the 'Skill and Judgment Test' which is more or less a compromise between the sweat of the brow theory and the modicum of creativity test. While relying on the CCH Canadian Case,[27] the Court essentially held that a work would meet the originality standard as long as there is labour or effort involved but not only labour.[26] It must involve some level of skill and judgment as well. However, this approach mirrors the Sweat of the Brow theory more closely and is therefore a difficult theory to defend. Further, the Court held the division of a judgment into paragraphs and numbering them was enough to meet this standard of 'Skill and Judgment'. Whether this is the correct interpretation of the test as given in the CCH Canadian Case[28] remains debatable.

Originality in science

Scientific literature considered as primary must contain original research, and even review articles contain original analysis or interpretation.[29]

Originality of ideas and creative works

An original idea is one not thought up by another person beforehand. Sometimes, two or more people can come up with the same idea independently. Originality is usually associated with characteristics such as being imaginative and creative.

The evaluation of originality depends not only on the creative work itself, but also on the temporal context, the zeitgeist. In a study of the musical originality of 15,618 classical music themes, the importance of objective characteristics and the zeitgeist for popularity was examined. Both the musical originality of a theme relative to its contemporary works (the zeitgeist), as well as its "absolute" originality influenced in similar magnitude the popularity of a theme.[30] Similarly, objective features and temporal context both influenced the evaluation of linguistic originality.[31]

Original recording

An original painting, photographic negative, analog audio, or video recording, will contain qualities that can be difficult, or under current technology may be impossible to copy in its full integrity. That can also apply for any other artifact.

That is why it is often necessary to preserve the original, in order to preserve its original integrity. The copy is made to preserve the original recording by saving the original from degenerating as it is being played, rather than to replace the original.

See also

Notes
  1. Gregory (1997) pp. 12-13 quote:
    Modernist concern with issues of originality develops out of modernism's relation to romanticism, the romantics having invented the notion of originality as we know it.
  2. Smith (1924)
  3. Waterhouse (1926)
  4. Macfarlane (2007)
  5. Lynch, Jack (2002) The Perfectly Acceptable Practice of Literary Theft: Plagiarism, Copyright, and the Eighteenth Century, in Colonial Williamsburg: The Journal of the Colonial Williamsburg Foundation 24, no. 4 (Winter 2002–3), pp. 51–54. Also available online since 2006 at Writing World.
  6. Royal Shakespeare Company (2007) The RSC Shakespeare - William Shakespeare Complete Works, Introduction to the Comedy of Errors, p. 215 quote:
    while we applaud difference, Shakespeare's first audiences fovoured likeness: a work was good not because it was original, but because it resembled an admired classical exemplar, which in the case of comedy meant a play by Terence or Plautus
  7. Lindey, Alexander (1952) Plagiarism and Originality
  8. Edward Young (1759) Conjectures on Original Composition
  9. Feist v. Rural
  10. "Chapter 1 - Circular 92". copyright.gov. U.S. Copyright Office. Retrieved 2018-05-10.
  11. "Module 2, Copyright and Related Rights" (PDF).
  12. "Module 3: The Scope of Copyright Law - Copyright for Librarians". cyber.harvard.edu. Retrieved 2018-05-10.
  13. "Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991)". Justia Law. Retrieved 2018-05-10.
  14. "Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991)". Justia Law. Retrieved 2018-05-10.
  15. 36 F. Supp. 2d 191 (S.D.N.Y. 1999)
  16. 377 F.Supp.2d 444
  17. "Originality Requirements under U.S. and E.U. Copyright Law - Software Freedom Law Center". softwarefreedom.org. Retrieved 2018-05-10.
  18. "35 U.S. Code § 102 - Conditions for patentability; novelty". LII / Legal Information Institute. Retrieved 2018-05-10.
  19. 81 F.2d 49 (2d Cir. 1936)
  20. "Alfred Bell & Co. v. Catalda Fine Arts". h2o.law.harvard.edu. Retrieved 2018-05-10.
  21. "Originality Requirements under U.S. and E.U. Copyright Law - Software Freedom Law Center". www.softwarefreedom.org. Retrieved 2018-05-10.
  22. Appeal (civil) 6472 of 2004
  23. AIR 1955 Mad 391
  24. ¶8, V. Govindan vs E.M. Gopalakrishna Kone And Anr. (AIR 1955 Mad 391)
  25. 1995 IVAD Delhi 732
  26. ¶37, Eastern Book Company v DB Modak
  27. [2004] 1 SCR 339
  28. ¶16, CCH Canadian Ltd v Law Society of Upper Canada, [2004] 1 SCR 339
  29. Tobin, Martin J. (October 2003). "Writing a Review Article for AJRCCM". American Journal of Respiratory and Critical Care Medicine. 168 (7): 732–734. doi:10.1164/rccm.2306019.
  30. Simonton, Dean K. (1980). "Thematic fame, melodic originality, and musical zeitgeist: A biographical and transhistorical content analysis". Journal of Personality and Social Psychology. 38 (6): 972–983. doi:10.1037/0022-3514.38.6.972. ISSN 0022-3514.
  31. Form, Sven (2018-01-30). "Reaching Wuthering Heights with Brave New Words: The Influence of Originality of Words on the Success of Outstanding Best-Sellers". The Journal of Creative Behavior. 53 (4): 508–518. doi:10.1002/jocb.230. ISSN 0022-0175.

References
  • "Originality", BBC Radio 4 discussion with John Deathridge, Jonathan Rée and Catherine Belsey (In Our Time, Mar. 20, 2003)
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