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 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 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
1 Swannell, J. (Ed.) The Little Oxford Dictionary 6th Ed. (1986) Clarendon Press, page 376. 2 [1916] 2 Ch 601 3 Laddie, H. et al, The Modern Law of Copyrights 2nd Ed., (1995) Butterworths, page 48. 4 [1964] 1 All ER 465

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 is no room for taste or judgement5 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:
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?

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. 8 Barzun, J. The Paradoxes of Creativity (1989) 58 American Scholar 337, page 351 9 Ibid.

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 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.

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 12 Litman, J. The Public Domain (1990) 39 Emory L.J. 965, pages 966-967

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 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

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. 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.

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 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
17 Barzun, J. The Paradoxes of Creativity (1989) 58 American Scholar 337, page 341 18 Ibid, page 351 19 Ibid, page 343 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.

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.

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.

ABSOLUTE ORIGINALITY

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

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 crossexamination by 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

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

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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 blues32 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.

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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.

32 Baker, R. A Brief History of the Blues at http://www.thebluehighway.com/history.html on

25/03/2001 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 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

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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

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
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 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

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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 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.
39 Barzun, J. The Paradoxes of Creativity (1989) 58 American Scholar 337, page 340

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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 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

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. 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.

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difficult and area for reform and perhaps we need to look elsewhere to implement change.

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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 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 thing45, 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
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

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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 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.

47 See sections 29 31 Copyright Designs and Patents Act 1988.

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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 21

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 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.

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BIBLIOGRAPHY
Abrams, H. Originality and Creativity in Copyright Law (1992) 55-SPG Law & Contemporary Problems 3 Baade, P. Photographers Rights: Case for Sufficient Originality Test in Copyright Law (1996) 30 John Marshall Law Review 149 23

Barzun, J. The Paradoxes of Creativity (1989) 58 American Scholar 337 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 Law Review 325 Glaister, D. Revolutionary Theory Shows Beethoven Pinched His Famous Tunes 11 May 1996 The Guardian Newspaper Jaszi, P. Toward a Theory of Copyright: The Metamorphoses of Authorship (1991) Duke Law Journal 455 Jung, C. Man and his Symbols (1964) Penguin Arkana Karjala, D. Comment of US Law Professors on the Copyright Office Term of Protection Study (1994) 12 European Intellectual Property Review 531 Laddie, H. et al, The Modern Law of Copyright and Designs 2thnd Ed. (1995) Butterworths Litman, J. The Public Domain (1990) 39 Emory L.J. 965 Olson, D. Copyright Originality (1983) 48 Missouri Law Review 29 Reytblat, J. Is Originality in Copyright Law a Question of Law or a Question of Fact?: the Fact Solution (1999) 17 Cardozo Arts & Entertainment Law Journal 181 Sherwood-Edwards, M. Term of Copyright: A reply to Karjala Letter to European Intellectual Property Review Swannell, J. (Ed.) The Little Oxford Dictionary 6th Ed. (1986) Clarendon Press Tingen, P. Crossing Borders Sound on Sound http://www.sospubs.co.uk/search/query.asp on 28/03/2001 (1998) at

Turk, S. Copyrights and Jazz Improvisation: Creativity Unprotected (1992) 1 University of Baltimore Intellectual Property Law Journal. 66 VerSteeg, R. Rethinking Originality (1993) 34 William & Mary Law Review 801

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