Originality in Copyright Doctrine

by Ian Hoare

INTELLECTUAL PROPERTY LAW (LW556)

(2000-2001)

Because authors necessarily reshape the prior works of others, a

vision of authorship as original creation from nothing and of
authors as casting up truly new creations from their innermost
being is both flawed and misleading

Jessica Litman, The Public Domain. Discuss.

ABSTRACT

The aim of this dissertation is to consider originality; whether anything can

ever be original and whether the definition of originality as used by the law should
be changed. At present, the law uses the term originality as a criterion in assessing
whether or not something can be copyrighted. But the legal use of the term original
seems to bare no similarity to the common conception of the term. In fact, definitions
of the term provided in the case law seem almost completely unrelated to the
common conception of the term.
After having assessed the meaning of original as operative at present, I
move on to consider the use of other definitions of originality, more in line with what
the common conception of the term is. But these areas prove rather problematic, not
least because of setting the required level for what is and what is not original and
subsequent problems of evidence in trying to ascertain where exactly an authors
idea came from. Thus, originality in a factual sense is probably too stricken with
irresolvable problems to become a replacement for the current legal definition of

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what constitutes an original work. An alternative to redefining original is for more
appreciation of the public domain in the light of the nature of authorship and perhaps
this is an area in which the law can be altered, which I consider very briefly.

DEFINING ORIGINALITY

The common conception of the meaning of original is something that is new,

not done before. In fact, original is defined as existing from the first; primitive;
earliest; not imitative or derived; creative. 1
s.(1)(1)(a) of the Copyright, Designs and Patents Act 1988 states that
copyright subsists in original literary, dramatic, musical or artistic works. However,
the Act does not state what original means. Thus, case law must be examined in
order to appreciate the meaning that law attached to this term.
In University of London Press Ltd. v. University Tutorial Press Ltd. 2 Peterson
J. stated that: The word original does not in this connection mean that the work
must be the expression of original or inventive thought, and, in the case of literary
work, with the expression of thought in print or writing. The originality which is
required relates to the expression of thought. It is clearly stated here that the
originality required by the law is not that of revolutionary new ideas but of the way
that the thought is expressed. Peterson J. went on to say: [t]he Act does not require
that the expression must be in original or novel form, but that the work must not be
1 Swannell, J. (Ed.) The Little Oxford Dictionary 6th Ed. (1986) Clarendon Press, page 376.
2 [1916] 2 Ch 601

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copied from another work that it should originate from the author. In order for a
work to gain copyright protection, it must originate from the author the legal
meaning given to original. The ideas expressed within the work do not themselves
have to be new, but the way in which they are put across to the audience does.

The copyright laws do not require that a work should be unprecedented, that is, new in
comparison with already existing worksA copyrightis good provided a sufficient
amount of work was originated by the author independently, even if some other
person had already produced an identical piece by sheer coincidence. 3

Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. 4 concerned football

betting coupons, where one of the parties claimed that the other had infringed
copyright on the design of the layout of the coupon, allegedly copying the fixture lists
and adopting the same headings for the separate sections of the coupon. The
appellants argued that the design of the coupon could not qualify as original. It was
stated by Lord Reid that the criteria for establishing originality are skill, labour and
judgement. This has resulted in a rather low standard for attaining originality,
although certain things are still unable to meet the criteria for sufficient originality,
such as where [t]here isno room for taste or judgement 5 such as lists of names
etc, as in the case of Feist Publications Inc. v. Rural Telephone Service Co.6
Interestingly, the criteria still bear no resemblance to the everyday
understanding and use of original. In law it is used more as a gauge of how much
work is to be completed before copyright protection is granted. 7 Some have attacked
the legal meaning of originality because it sets a very low standard, and
consequently, provides protection to undeserving works. Barzun argues that the
market has become saturated by such works because of the belief that creativity is
within all of our reach:

3 Laddie, H. et al, The Modern Law of Copyrights 2nd Ed., (1995) Butterworths, page 48.
4 [1964] 1 All ER 465
5 G.A. Cramp & Sons Ltd. v. Frank Smythson Ltd. [1944], judgement of Viscount Simon L.C.
6 Supreme Court of the United States 1991 499 U.S. 340
7 An advantage of the present system is that because it sets a low standard for attaining the requisite level of
originality, and thus copyright protection, everybody that produces something can have access to the protection
of the law. The standard is also universal; the criteria of work, skill and judgement are common to all genres of
creativity, whether it be art, literature, musical composition or software design. Thus, in a sense, we have a one
standard fits all system which means that the application of the originality test is (in most cases) fairly
straightforward.

3
 It has not only diluted the meaning of creative; it has also glutted the market with
innumerable objects and performances arbitrarily called art, thereby making it even more
arduous for true creation to find a public.8

Barzun uses the term creative in a way that most people would consider an
appropriate definition for original: [C]reation means making something new and
making it out of little or nothing. 9 But the legal definition of originality would certainly
not be adequate in Barzuns eyes, because works that are not truly creative receive
just as much protection as those that are.

CAN ANYTHING EVER BE TRULY ORIGINAL?

As we have seen, the law considers originality to be a combination of skill,

labour and judgement. Before I move on to consider how the legal requirements of
originality could be changed, it is worth considering the nature of works themselves
and whether they can ever be totally original.10
Julia Reytblat notes that: Some commentators have suggested that one way
to approach these works is to realise that nothing in this world is truly original
because all creativity ultimately draws on already existing elements. Thus, writers
either derive their works from preexisting letters and grammatical structures, or they
select and rearrange letters, words, and punctuation to produce works of literature
that are, essentially, compilations of preexisting materials. Likewise, musicians select
and arrange musical notes, while painters draw on nature, people, and objects
around them to present their creative visions. 11 Jessica Litman argues that a work
can never be totally original; that every piece produced is a product of many different
influences and prior experiences.

[T]he very act of authorship in any medium is more akin to translation and
recombination than it is to creating Aphrodite from The foam of the sea. Composers
recombine sounds they have heard before; playwrights base their characters on bits and
8 Barzun, J. The Paradoxes of Creativity (1989) 58 American Scholar 337, page 351
9 Ibid.
10 For convenience, all references to author throughout this dissertation mean creators of works in general,
including artists and musicians, not simply writers (unless specified as such).
11 Reytblat, J. Is Originality in Copyright Law A Question of Law or a Question of Fact?: The Fact
Solution (1999) 17 Cardozo Arts and Ent. L.J. 181, pages 192-193

4
 pieces drawn from real human beings and other playwrights characters; novelists draw
their plots from lives and other plots within their experience; software writers use the logic
they find in other software; lawyers transform old arguments to fit new facts;
cinematographers, actors, choreographers, architects, and sculptors all engage in the
process of adapting, transforming, and recombining what is already out there in some
other form.12

This is not to say that all things are the same, that they are nothing but copies
of earlier works. Rather, that our perception and ideas are products of experience
and that what we produce is a mixture of many different influences. Nothing is
exactly the same (direct copies excluded) because there are almost limitless
combinations of experience and expressive form, such as writing style, artistic
methods etc.
Jung writes: [P]art of the unconscious consists of a multitude of temporarily
obscured thoughts, impressions, and images that, in spite of being lost, continue to
influence our conscious mind. 13 Thus, we learn and create through experience.
Even writing a novel based on a fictitious world relies upon elements of experience
e.g. characters drawn from people on the television, parts of the story line borrowed
from other novels. There are limitless twists to a tale, but there will always be some
elements that are common, shared and/or attributable to experience.

[W]e all see, hear, smell, and taste many things without noticing them at the time, either
because our attention is deflected or because the stimulus to our senses is too slight to
leave a conscious impression. The unconscious, however, has taken note of them, and
such subliminal sense perceptions play a significant part in our everyday lives. Without
realising it, they influence the way in which we react to both events and people. 14

In an article in The Guardian newspaper by D. Glaister, it was stated that a

new theory shows that Beethoven borrowed his most famous themes. 15 It was
argued that Beethoven was very influenced by the works of French composers a
decade before him. So, perhaps Beethoven did copy the tunes of the earlier
composers, but this does not devalue Beethovens work in any way. Beethoven
should be considered no less of a composer because of this theory, because this is
what all authors do. This illustrates the point made by Jessica Litman that everything

12 Litman, J. The Public Domain (1990) 39 Emory L.J. 965, pages 966-967
13 Jung, C. Man and his Symbols (1964) Penguin Arkana, page 32
14 Ibid, page 34
15 Glaister, D. Revolutionary Theory Shows Beethoven Pinched His Famous Tunes, 11th May 1996, The
Guardian Newspaper.

5
is a recombination or transformation.16 Indeed, many Classical composers have
made use of traditional folk tunes, such as Vaughan Williams Fantasia on
Greensleeves.
Today, it is inevitable that, with so many musicians, writers and artists etc.
common ground will be covered. With such a high level of creative output, aided by
computers, easier recording techniques, better access to education and creative
materials, people will produce similar works. Barzun argues that because of the
perceived similarities between works, people are having to move away from the
normal towards the abnormal.

The art lover must now continually learn new habits and steel himself against the shocks,
while every aspiring artist must strive for novelty at any cost. Since the works of genius,
being born of unique imagination, do not resemble one another nor those made earlier,
each seemed a world complete in itself. The analogy with Gods creation became obvious
and inevitable.17

Thus, in the search for originality, that is, the common conception of the term,
people are striving to do things that have never been attempted before. It is this
desire (no doubt fuelled by social pressures) that Barzun terms creative foolery. 18
He argues that simply redefining the nature of the art form, we are not being
creative, but he suggests that we are attaining originality.

Nowadays, originality, the cult of the new, and plain shock power have such a hold on
our judgement that we pay humble attention to a great deal of nonsense and
charlatanism. This gullibility spreads wide and provides a market for the users of the
topsy-turvy as a formula. Present the familiar upside down and theres originality, nobody
can deny that its new.19

We should not take what exists, add a twist and call it creative. But arguably,
we should not even term it original. Can we honestly say that adding a moustache to
the Mona Lisa, as Duchamp did, is really original? The painting existed before
Duchamp and all he did was add a few brush strokes. Essentially, all of the elements

16 Certainly, whilst it may be true that Beethoven did take tunes used a decade before him and used them in his
own pieces, the form would doubtless have been changed. Parts of the tunes may have been modified: the tempo
altered; notes transposed, lengthened or shortened; or even a reconfiguration of the music for each instrument.
17 Barzun, J. The Paradoxes of Creativity (1989) 58 American Scholar 337, page 341
18 Ibid, page 351
19 Ibid, page 343

6
existed before this work was created, so although it may be unexpected, serious
questions would surely be raised as to whether or not is was original. 20
But to condemn simplistic or shocking works, or works that simply present the
normal upside down is to condemn what some people consider to be fine art, music,
literature etc. Humans find inspiration in different things, and one persons high art is
another persons pointless doodle. In demanding that only the truly creative and
valuably original pieces deserve protection, the law may start down a path with
unwelcome results which shall be discussed in the next section.
As we have seen, the legal definition of originality can be fulfilled by even the
most simplistic of works, provided that there is the requisite level of skill, judgement
and work involved in its creation. But the question now raised is whether we should
continue to use the term original when it is clearly unrelated to the everyday
understanding of the word. The next section will examine a few possibilities of
making the legal definition of original match the common conception of the term.

20 Arguably, this is little above the creativity and originality of a schoolboy. It would also be very interesting to
consider whether painting a moustache on the Mona Lisa fulfilled the criteria of skill, labour and judgement; I
would argue that it does not come close.

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 SHOULD THE LEGAL MEANING OF ORIGINALITY BE ALTERED
TO ACCORD WITH THE COMMON CONCEPTION OF THE TERM?

As has been illustrated, the present standard for attaining what the law
considers to be original is very low. It is not concerned that the work created is of a
completely new form, but rather that the work created originated from the author and
that its creation involved a degree of skill, judgement and labour.
The use of the term original does promote particular images, namely, that
authors create from nothing, that what is created is done through a synthesis of
original thoughts unique to the particular creator. This use of original in statute
creates an image of original genius, which is totally unsupported by the case law. Its
use promotes the notion of romantic authorship and provides the author with total
praise for his or her creation, ignoring the many influences that act on creators every
single day.21

Because copyrights paradigm of authorship credits the author with bringing something
wholly new into the world, it sometimes fails to account for the raw material that all
authors use. This tendency can distort our understanding of the interaction between
copyright law and authorship. Specifically, it can lead us to give short shrift to the public
domain by failing to appreciate that the public domain is the laws primary safeguard of the
raw material that makes authorship possible.22

Thus there is a fundamental conflict concerning originality in copyright law: on

the one hand we are using a word of which the common understanding is of new
creation from nothing but on the other hand, the law defines the word as meaning
originating from the author involving work, skill and judgement. The question that
must be considered is whether there is a better definition that the Courts could give
to original.

21 Jaszi, P. Towards a Metamorphoses of Authorship (1991) Duke L. J. 455, page 456

22 Litman, J. The Public Domain (1990) 39 Emory Law Journal 965, page 967

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 ABSOLUTE ORIGINALITY

It could be argued that only first generation works23 should be given copyright
protection. Boyd defines a first generation works as a work that is not
substantially similar to any preexisting works or materials; if it were substantially
similar, then it would either be a compilation or a derivative work. 24 The justification
for absolute originality protection is that it is only truly original works that are worthy
of protection, as everything else is formed from a mixture of influences found in
preexisting works. A film that is a remake of an earlier movie should not receive the
same level of protection as the original version. Even if characters are altered
slightly, the plot updated a little and new elements introduced, it still owes a great
deal of its existence to the original production. 25
However, there is fierce criticism of such a definition for originality. Boyd
states that fulfilment of the ultimate test of originality requires proof that the work
originated with the author, without conscious or even unconscious reference to prior
works.26 This is a significant problem for a standard of complete originality because
establishing complete originality is an impossible task. Jessica Litman writes:

If we took this vision seriously, we could not grant authors copyrights without first
dissecting their creative processes to pare elements adapted from the works of others
from the later authors recasting of them. This dissection would be both impossible and
unwelcome.27

Ascertaining whether or not a particular work was original would require very
complex trail processes. It would need to involve extensive cross-examination by

23 Boyd, S. Deriving Originality in Derivative Works: Considering the Quantum of Originality Needed to
Attain Copyright Protection in a Derivative Work (2000) 40 Santa Clara L. Rev. 325, pages 339-340
24 Ibid
25 The new production should not receive protection against infringement by others when it itself is formed of
the major constituents of the original.
26 Boyd, S. Deriving Originality in Derivative Works: Considering the Quantum of Originality Needed to
Attain Copyright Protection in a Derivative Work (2000) 40 Santa Clara L. Rev. 325, page 342
27 Litman, J. The Public Domain (1990) 39 Emory Law Journal 965, page 969

9
persons trained in psychology as well as a catalogue of all existing copyrighted
materials before the court could give judgement. Russ VerSteeg comments: Medical
experts would, presumably, interview the author, asking questions about the process
that she used when producing the work28
In order to be able to define absolute originality we need to be able to
analyse every possible source of influence on the creator. Clearly, this is an
impossible task; it is possible that, for example, an author of age 57 was influenced
by something she had heard on the radio when she was 16. The critical issue here is
whether he would remember that particular influence it could have been a
subconscious influence in producing his or her work. At trial, this kind of
psychological analysis would clearly take an unreasonable amount of time. 29
It is also argued that such a high standard of originality may choke creativity,
deterring people from producing works. Jessica Litman states that [t]he purpose of
copyright law is to encourage authorship. 30 If we make the criterion of originality too
difficult to attain, people may be dissuaded from even attempting to write, paint,
compose, design new software, etc. because their completed work would will be
regarded as derivative or unoriginal. Thus, under absolute originality, no legal
protection would be afforded to the works produced.

When individual authors claim that they are entitled to incentives that would impoverish
the milieu in which other authors must also work, we must guard against protecting
authors at the expense of the enterprise of authorship.31

Absolute originality would certainly effect different forms of expression more

than others. One particularly good example of this would be Blues Music.

When African and European music first began to merge to create what eventually
became the blues, the slaves sang songs filled with words telling of their extreme
suffering and privation. One of the many responses to their oppressive environment
resulted in the field holler [which] gave rise to the spiritual, and the blues 32

28 Russ Versteeg - Rethinking Originality (1993) 34 Wm. & Mary L. Rev. 801, page 841
29 Even when the Court reached a stage when it was possible to make a decision on the facts of the case, we
can never be in a position to prove conclusively that the decision was the right one because it would simply be
impossible to identify a particular influence or group of influences that may have acted at any point during an
authors lifetime.
30 Litman, J. The Public Domain (1990) 39 Emory Law Journal 965, page 969
31 Ibid.
32 Baker, R. A Brief History of the Blues at http://www.thebluehighway.com/history.html on 25/03/2001

10
 The 12 bar blues harmonic progression is common throughout most music that
is classified as Blues and the essence of this form of music is the individual
expression that each performer brings to the piece; different lyrics, different
instrumental style and different vocal expression. Certainly, a great deal of Blues
tunes would fall foul of a standard of absolute originality. It seems that there is
difficulty in identifying who was the very first person to develop the 12 bar blues and
it is even thought that very early blues were patterned after English ballads and
often had eight, ten, or sixteen bars.33 Thus, we have a clear example of the
difficulty in identifying who developed the particular type of music, and even, what
and who it was that originally influenced the genre as a whole.
Indeed, despite the apparent diversity of some genres of music, such a
Rock, in order for a category of music to exist, there must be some similarity in
style between authors and songs. Absolute originality would, in effect, result in the
deconstruction of musical and artistic classification. A test of absolute originality
would mean that no two drum-beats could ever be the same, no chord sequence
could ever be the same and so on. To be truly original, it could be argued that no
recording method should be the same and even that musicians and artists should
use different instruments and materials to produce their works every time they feel
creative. This would be wholly unwelcome would clearly be oppressive to creation,
because no works would receive copyright protection.

33 Ibid.

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 SCALES OF ORIGINALITY

This approach to the issue of originality concerns itself with providing

protection to all levels of work, whether they are first generation or derivative.
However, the level of protection afforded to each piece is dependent on its quantum
of originality. In other words, the creator achieves a level of protection dependant on
how original they have been in creating the work. It is not for me to ascribe the legal
weight of each level of originality, but, in essence, the more original a work is, the
more protection is receives from the law.
However, the use of different grades of originality does present some difficult
problems. Firstly, identification of what is truly original, or what Boyd terms first
generation is an impossible task. As with the absolute originality argument, the
difficulty is establishing whether a particular work before a court is completely
original. Even if we were to stand a chance of achieving identification of such a work
through extensive psycho-analysis and comparison with all other works it is
argued by people such as Jessica Litman that full originality is simply unattainable. If
no work can ever be entirely original, as Litman suggests, this reduces the distinction
between all existing works, as they all contain common elements. In other words,
we are left with the question of what then makes one work more original than
another, even though neither is a first generation 34 work.
In quantifying how original a work is, the issue of originality turns from a legal
judgement into one of fact. Julia Reytblat argues that there is ample justification for
making a judgement on originality a factual one because juries, members of the
community who reflect the common standards and beliefs of a particular society,
decide on the issue:

The judicial system as a whole puts a premium on bright line rules, predictability, and
uniformity. But originality is inherently nebulous, and as such it is extremely poorly suited
to judicial adjudication. Yet, if the courts must evaluate originality, the evaluation should
not be left in the hands of one person the solitary judge. Instead, as in the other fields of
law where the proper standard hinges on community understanding, jurors should make
the decision as often as possible.35

34 Boyd, S. Deriving Originality in Derivative Works: Considering the Quantum of Originality Needed to
Attain Copyright Protection in a Derivative Work (2000) 40 Santa Clara L. Rev. 325, pages 339-340
35 Reytblat, J. Is Originality in Copyright Law A Question of Law or a Question of Fact?: The Fact
Solution (1999) 17 Cardozo Arts and Ent. L.J. 181, page 207

12
 Thus, in order to establish what constitutes a first generation work, a jury
would be used, which would reflect the standards and beliefs of the society in which
the trial was held. In order to establish a scale system of originality, treating
originality as a question of fact is probably the best hope of establishing such a tiered
system.36 However, it would still take a great deal of time and money for such a case
to be heard, and perhaps issues such as lack of finance and inefficiency would be
too great a burden on the legal system.
One problem that Reytblat admits with treating originality as a question of fact
is that of inconsistent jury verdicts. Most of the time, juries do not have to explain
their reasoning. Jury verdicts and conclusions are generally not reported and are not
binding in future cases. This would allow two different juries to arrive at two different
conclusions on similar facts. 37 Arguably, of central importance to the law is clarity. If
people dont know how decisions are reached, and appear to be decided differently
on the same facts, creators may not wish to produce works. Furthermore, those
creators that are threatened with legal action for alleged infringement may simply
give in to the threatening party because they do not have a clear enough idea of
what the law requires. Thus, valuable works could never reach the public, even
though they may well have deserved to.
Reytblat also identifies a second problem with originality as fact: frivolous
claims. Because judges will be greatly limited in their ability to grant motions to
dismiss and summary judgements, more cases will receive a trial on the merits,
potentially clogging the courts and encouraging undeserving litigants to press their
claims and try their luck.38
Thus, factual originality is potentially dangerous in terms of court time and
efficiency. To introduce different scales of protection depending on the quantum of
originality contained in each work would be far too slow and expensive. There also
would be difficulty in establishing what constitutes each level of the scale; we must
state that at a particular point, this work is more deserving than another. If a jury

36 For example, scales of protection based upon the degree of work done would hardly be a fair method of
deciding originality. Firstly, it bears no resemblance to the common meaning of original and secondly, we
might end up in the position that a simple tune played on a tin whistle receives less protection than a full
symphony, just because it took longer to write the symphony. These are hardly categories based on the quantum
of originality.
37 Reytblat, J. Is Originality in Copyright Law A Question of Law or a Question of Fact?: The Fact
Solution (1999) 17 Cardozo Arts and Ent. L.J. 181, page 198
38 Reytblat, J. Is Originality in Copyright Law A Question of Law or a Question of Fact?: The Fact
Solution (1999) 17 Cardozo Arts and Ent. L.J. 181, page 199

13
were deciding on the facts, the tiered system of originality might not develop clearly
defined levels due to differing decisions made by differing juries. The resulting
confusion from the vagueness of decisions would make the system unworkable and
insufficiently defined.

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 DIFFERENT REQUIREMENTS OF ORIGINALITY TO SUIT
DIFFERENT MEDIA

At present, we have one standard of originality for all works musical, written,
visual which is set very low. As these forms of intellectual property vary, one option
might be to develop different variations in the originality requirement to suit the
different forms of work, thus incorporating a factual test of originality. At present,
having one standard of originality for all works means that the standard has to be
low otherwise those involved in mediums which have a very narrow scope, such as
Blues music or portrait painting, would receive no protection at all. As a result of an
overall standard of originality (and thus a low standard), some works may receive
protection that are undeserving: The people who are thought original and get
pampered are those who bring familiar things titivated by touches of novelty. 39
Returning to the example of blues music, we have seen that tunes share
striking similarities to one another, based around similar chord patterns etc. But this
should not be any reason to disqualify it from copyright protection, as there is
undoubtedly plenty of skill involved in writing and performing such music, whilst
maintaining a desire to be true to its roots. However, films are generally quite
different, or at least generally, there is more variation in any ten movies than there
would be in any ten blues pieces. Thus, the standard of originality for movies could
be increased whilst the standard for blues musicians be kept low.
However, there are other significant problems concerning a system of differing
requirements of originality based upon the medium. Firstly, there is the problem of
definitions. For example, defining what constitutes a piece of Classical music is
something that music critics can never agree on. The definition could be restricted to
those works that only employ traditional classical instruments, such as Prokofievs
Romeo and Juliet or Stravinskys The Rite of Spring. But this may serve to
exclude pieces that are equally as revered, such as Saties orchestral works, in
which he incorporated into the score a typewriter and a siren.
Some pieces of music just seem to be beyond categorisation: Rhapsody in
Blue is playful and teasing, constantly daring us to try to categorise its style, and
then confounding our conclusions.40 (Original emphasis). Thus, for all styles of

39 Barzun, J. The Paradoxes of Creativity (1989) 58 American Scholar 337, page 340
40 Taylor, E. (Ed.) Gramophone Classical: Good CD Guide 2000 (1999) Gramophone Publications Ltd.,
page 376 review of Bernteins production of Gershwins Rhapsody in Blue.

15
music, definitions of type are too rigid and there will always be works that fall outside
of such clear-cut categorisation. Composer John Adams stated:

"We're in a very interesting historical period. I think we're post-style. We're in a period
during which we can't really place a stylistic label on the most interesting composers any
more. All these pioneering, avant-garde inventions that happened earlier this century --
like 12-tone music, aleatoric, minimalist music -- but also popular music styles like jazz
and blues and rock, have all spent themselves in their pure form. There's a vast synthesis
happening at the moment. All genres are beginning to collapse, and the best testimony for
that is to go into a large music store and see displays of CDs by Hildegard von Bingen
right next to Arvo Part, Steve Reich and music from Bali. And when you ask for a CD you
can witness the frantic hysteria of the shop assistant: 'Is that New Age Crossover Hillbilly
or something?' There's so much information coming at us that we can't process it." 41

Indeed, when we try to form such complex definitions, we begin to limit the horizons
of the medium we are trying to define.
A second related problem with regard to definitions is that of separating forms
of music from one another. 42 Cross-fertilisation has occurred with many different
styles of music many modern dance acts utilise the power of digital sampling
technology to incorporate classical compositions into a mix along with modern
sequenced drum beats and vocal tracks.
There is also a potential that the markets become distorted by introducing
such different definitions of originality. Potentially, allowing one medium to enjoy a
lower standard of originality than another means that a differential may arise, as
particular sectors of the creative market flourish and others do not. Such a hindrance
would be unwelcome and it could not be said that the law as aiding the production of
new works. Indeed, this is where a balance must be struck; we must protect works
created as well as maintaining the ability for future authors to create new works.
Thus, perhaps this is too difficult and area for reform and perhaps we need to look
elsewhere to implement change.

41 Tingen, P. Crossing Borders Sound on Sound, (1998) interview with composer John Adams at
http://www.sospubs.co.uk/search/query.asp on 28/03/2001
42 Only recently, the music industry has seen the mixture of Rap music and Heavy Metal, so termed New
Metal comprising of bands such as Limp Bizkit and Papa Roach.

16
 A DIFFERENT APPROACH: A GREATER APPRECIATION OF THE
PUBLIC DOMAIN

The reform of originality seems to present a number of complicated

problems, which generate a significant block to potential redevelopment. Other areas
that may be considered for reform might be the duration of copyright and fair dealing.
The duration of copyright at present is the life of the author plus 70 years after

17
his/her death, after being increased from 50 years after death by a European Union
Directive.43 Some commentators argue that such a length of copyright protection
reduces the scope of the public domain, and ultimately hinders our collective creative
output.

The public domain should be understood not as the realm of material that is undeserving
of protection, but as a device that permits the rest of the system to work by leaving the
raw material of authorship available for authors to use
The public domain contains elements of authorship that easily seep into our minds and
our language or that for other reasons can be claimed by many authors. A broad public
domain protects potential defendants from incurring liability through otherwise
unavoidable copying. It protects would-be plaintiffs by relieving them of the impossible
and unwelcome obligation to prove the actual originality of all elements of their works. It
protects the copyright system by freeing it from the burden of deciding questions of
ownership that it has no capacity to answer.44

Whilst it is argued by some that long copyright duration is a good thing 45,
providing incentives to those who produce works, others suggest that this is not the
case, such as Dennis Karjala. The more we tie up past works in ownership rights
that do not convey a public benefit through a greater incentive for the creation of new
works, the more we restrict the ability of current creators to build on and expand the
cultural contributions of their forebears.46
Thus, perhaps we should lessen the strength of copyright protection, because
this would (a) reflect the fact that many ideas and inspirations come from the public
domain and (b) allow more freedom for other creators, such as writers, artists and
musicians to develop ideas without fear of infringement proceedings being launched
against them. At present, copyright law works in the opposite way; based on
assumptions of originality, it provides strong protection to those who have created
works, which is arguably wrong if all works owe some part of their origin to the public
domain.
The other area that could be reformed is that of Fair Dealing. 47 If we are to
agree that works are products, in whole or in part, of the public domain, then such
works should be less tightly restrained by copyright law and should be made more

43 Duration of Copyright and Rights of Performers Regulations 1995

44 Litman, J. The Public Domain (1990) 39 Emory Law Journal 965, pages 968-969
45 Sherwood-Edwards, M. Term of Copyright: A reply to Karjala Letter to European Intellectual Property
Review
46 Karjala, D. Comment of US Law Professors on the Copyright Office Term of Protection Study (1994) 12
European Intellectual Property Review 531
47 See sections 29 31 Copyright Designs and Patents Act 1988.

18
accessible to those who wish to use them in their own projects. All of these ideas
support the public domain, in turn, supporting the concept that nothing is original and
that whilst there is a need for protection of works, this protection should not deprive
future creators of valuable material that should be available to all. Arguably, a greater
availability and use of existing works will influence and encourage other authors to
produce new works.

CONCLUSION

As we have seen, the law treats originality to be a test of origination from the
author, skill, labour and judgement, and it has been shown in the case-law that this
standard is very low. Furthermore, the legal definition of originality bears very limited
resemblance to the common conception of the term, but in using the word original
we treat authors as though they are sources of completely free and new creation.
However, arguments made by commentators such as Jessica Litman are very

19
forceful, and show that it is extremely unlikely that creation exists free of influence
and experience.
But when we consider altering the legal definition of originality to compensate
for influence and experience, we find ourselves struggling against evidential
problems and difficulties in creating definitions. Indeed, if Litman is correct in
asserting that nothing is original, a test of absolute originality would mean that
nothing would receive protection because no work could be created free from
influence and experience. Adopting a system of protection dependant on the level of
originality still presents the same problems, namely that absolute originality still must
be identified. Also, identifying influences from the millions of possible experiences in
ones lifetime would be insurmountable and jury decisions would provide no
reasoning and thus the system would become too vague. Specific requirements of
originality per medium is also flawed because of the complexities of defining a
particular genre and the constant cross-fertilisation of different styles.
Thus, redefining the laws requirement of originality to bring it into line with
the common conception of the term presents difficulties that may be too much
trouble. It could be viable that the term original is substituted with something more
appropriate to the test that the law undertakes such as, for example, the
Development of Creative Works Test. But perhaps other areas of law could be
reformed, with the aim of protecting and increasing the public domain, out of which
creativity stems. At present, the law makes assumptions of originality, even though
works may be undeserving of this privileged status and this assumption should be
combated.
We are all capable of creativity, and this is in no small part down to influences
acting in our lives; the places we visit, the people we meet and the people who we
respect and admire. Authors should be proud of who and what influences them,
because in many cases, without influences, the people that entertain and inspire us
may not have started down the road of creativity.

20
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