Originality is the aspect of created or invented works that distinguish them from
reproductions, clones,
forgeries
Forgery is a white-collar crime that generally refers to the false making or material alteration of a legal instrument with the specific intent to defraud anyone (other than themself). Tampering with a certain legal instrument may be forbid ...
, or substantially
derivative works. The modern idea of originality is according to some scholars tied to
Romanticism
Romanticism (also known as the Romantic movement or Romantic era) was an artistic, literary, musical, and intellectual movement that originated in Europe towards the end of the 18th century, and in most areas was at its peak in the approximate ...
, by a notion that is often called
romantic originality
Romanticism (also known as the Romantic movement or Romantic era) was an artistic, literary, musical, and intellectual movement that originated in Europe towards the end of the 18th century, and in most areas was at its peak in the approximate ...
.
[Smith (1924)][Waterhouse (1926)][Macfarlane (2007)] The validity of "originality" as an operational concept has been questioned. For example, there is no clear boundary between "derivative" and "inspired by" or "in the tradition of."
The concept of originality is both culturally and historically contingent. For example, unattributed reiteration of a published text in one culture might be considered plagiarism but in another culture might be regarded as a convention of veneration. At the time of
Shakespeare
William Shakespeare ( 26 April 1564 – 23 April 1616) was an English playwright, poet and actor. He is widely regarded as the greatest writer in the English language and the world's pre-eminent dramatist. He is often called England's natio ...
, it was more common to appreciate the similarity with an admired classical work, and Shakespeare himself avoided "unnecessary invention".
[ 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
It wasn't until the start of the 18th century that the concept of originality became an
ideal
Ideal may refer to:
Philosophy
* Ideal (ethics), values that one actively pursues as goals
* Platonic ideal, a philosophical idea of trueness of form, associated with Plato
Mathematics
* Ideal (ring theory), special subsets of a ring considere ...
in
Western culture
Leonardo da Vinci's ''Vitruvian Man''. Based on the correlations of ideal Body proportions">human proportions with geometry described by the ancient Roman architect Vitruvius in Book III of his treatise ''De architectura''.
image:Plato Pio-Cle ...
.
[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''.
Originality in law
In law, originality has become an important
legal concept
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vari ...
with respect to
intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
, where creativity and
invention have manifest as protectable or
copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
able works.
In the ''
Berne Convention for the Protection of Literary and Artistic Works'' (1886) that has been adapted by 181 countries and city-states, "original work" gives a creator exclusive rights; protection for
creative works
A creative work is a manifestation of creative effort including fine artwork (sculpture, paintings, drawing, sketching, performance art), dance, writing (literature), filmmaking, and composition.
Legal definitions
Creative works require a cr ...
are automatically in force upon their creation without being asserted or declared.
In the
patent
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A ...
law of the United States, only original
inventions can be subject to protection. In addition to being original, inventions submitted for a patent must also be useful and
nonobvious.
In
United States copyright law
The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of the ...
copyrights protect only ''original'' works of authorship, a property which has been historically and legally linked to a concept of "
creativity
Creativity is a phenomenon whereby something new and valuable is formed. The created item may be intangible (such as an idea, a scientific theory, a musical composition, or a joke) or a physical object (such as an invention, a printed Literature ...
". A work must pass a
threshold of originality
Threshold may refer to:
Architecture
* Threshold (door), the sill of a door
Media
* ''Threshold'' (1981 film)
* ''Threshold'' (TV series), an American science fiction drama series produced during 2005-2006
* "Threshold" (''Stargate SG-1'') ...
in order to be copyrightable. In other countries protection of a work often is connected to similar conditions.
In United Kingdom
intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, cop ...
law, a
derived work
In copyright law, a derivative work is an expressive creation that includes major copyrightable elements of an original, previously created first work (the underlying work). The derivative work becomes a second, separate work independent in f ...
can demonstrate originality, and must do so if it is to respect copyright.
Originality under United States copyright law
In the
copyright law of the United States
The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of the ...
, more specifically unde
17 U.S.C 102 the work that is sought to be protected must satisfy the threshold for
originality
Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion t ...
. Though most of the countries require certain degree of
originality
Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion t ...
in the work sought to be protected, such requirement does not stem from either the
Berne Convention
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, was an international assembly held in 1886 in the Swiss city of Bern by ten European countries with the goal to agree on a set of leg ...
or the
TRIPS Agreement
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It establishes minimum standards for the regulation by nat ...
. Therefore, there is no uniformity in the standard for
originality
Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion t ...
. In the United States,
originality
Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion t ...
necessitates bare minimum degree of creativity and independent creation. The
Supreme Court of the United States in the case of ''
Feist Publications v. Rural Telephone Service Co.'' 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.” The court also took the opportunity to reject the previously judicially-established and followed the ''
sweat of the brow
Sweat of the brow is an intellectual property law doctrine that is chiefly related to copyright law. According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory. ...
'' doctrine. According to the said doctrine, labour and hard-work alone could suffice to establish
originality
Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion t ...
. After the doctrine was rejected by the
Supreme Court in 1991, in the
''Bridgeman Art Library v. Corel Corp'' ''case'', the court held that the copies of public domain photographs could not be copyrighted since they lacked
originality
Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion t ...
and while such reproductions may have involved skill and labour, no protection could be granted to them, on account of lack of
originality
Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion t ...
.
While the current legal requirements of
originality
Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion t ...
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' 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
Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion t ...
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. Unlike,
Patents, novelty is not required for a work to be considered as original. The
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate ju ...
i
''Sheldon (1936)''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' 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.
Originality under Indian copyright law
Section 13(1)(a) of the Indian Copyright Act, 1957mentions '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'. 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
Sweat of the brow is an intellectual property law doctrine that is chiefly related to copyright law. According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory. ...
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'' 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'. A similar line of reasoning was adopted in the case of
Burlington Home Shipping Pvt Ltd v Rajnish Chibber' 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.''".
[¶37, ''Eastern Book Company v DB Modak''] 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, 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.
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 remains debatable.
Originality in science
Scientific literature
: ''For a broader class of literature, see Academic publishing.''
Scientific literature comprises scholarly publications that report original empirical and theoretical work in the natural and social sciences. Within an academic field, scie ...
considered as
primary must contain
original research, and even
review articles
A review article is an article that summarizes the current state of understanding on a topic within a certain discipline. A review article is generally considered a secondary source since it may analyze and discuss the method and conclusions ...
contain original
analysis
Analysis ( : analyses) is the process of breaking a complex topic or substance into smaller parts in order to gain a better understanding of it. The technique has been applied in the study of mathematics and logic since before Aristotle (3 ...
or
interpretation.
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 18th- and 19th-century German philosophy, a ''Zeitgeist'' () ("spirit of the age") is an invisible agent, force or Daemon dominating the characteristics of a given epoch in world history.
Now, the term is usually associated with Georg W. ...
. 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
Magnitude may refer to:
Mathematics
*Euclidean vector, a quantity defined by both its magnitude and its direction
*Magnitude (mathematics), the relative size of an object
*Norm (mathematics), a term for the size or length of a vector
*Order of ...
the popularity of a theme. Similarly, objective features and temporal context both influenced the evaluation of linguistic originality.
Original recording
An original
painting
Painting is the practice of applying paint, pigment, color or other medium to a solid surface (called the "matrix" or "support"). The medium is commonly applied to the base with a brush, but other implements, such as knives, sponges, and ai ...
,
photographic negative
In photography, a negative is an image, usually on a strip or sheet of transparent plastic film, in which the lightest areas of the photographed subject appear darkest and the darkest areas appear lightest. This reversed order occurs because th ...
,
analog
Analog or analogue may refer to:
Computing and electronics
* Analog signal, in which information is encoded in a continuous variable
** Analog device, an apparatus that operates on analog signals
*** Analog electronics, circuits which use analog ...
audio, or video recording, will contain qualities that can be difficult, or under current technology may be impossible to
copy
Copy may refer to:
*Copying or the product of copying (including the plural "copies"); the duplication of information or an artifact
**Cut, copy and paste, a method of reproducing text or other data in computing
**File copying
**Photocopying, a pr ...
in its full integrity. That can also apply for any other
artifact.
That is why it is often necessary to
preserve
The word preserve may refer to:
Common uses
* Fruit preserves, a type of sweet spread or condiment
* Nature reserve, an area of importance for wildlife, flora, fauna or other special interest, usually protected
Arts, entertainment, and media
...
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
*
Copyright protection of photographs in Switzerland - describes the criteria for the ''originality'' of photographs in Swiss law
*
Creativity
Creativity is a phenomenon whereby something new and valuable is formed. The created item may be intangible (such as an idea, a scientific theory, a musical composition, or a joke) or a physical object (such as an invention, a printed Literature ...
*
Derivative work
* ''
Feist v. Rural
''Feist Publications, Inc., v. Rural Telephone Service Co.'', 499 U.S. 340 (1991), was a landmark decision by the Supreme Court of the United States establishing that information alone without a minimum of original creativity cannot be protected ...
'' and ''
Bridgeman Art Library v. Corel Corp.'' (USA)
* In
fiction narratology
Narratology is the study of narrative and narrative structure and the ways that these affect human perception. It is an anglicisation of French ''narratologie'', coined by Tzvetan Todorov (''Grammaire du Décaméron'', 1969). Its theoretical li ...
, an original is the first-published installment of a series of works, thus having
sequel
A sequel is a work of literature, film, theatre, television, music or video game that continues the story of, or expands upon, some earlier work. In the common context of a narrative work of fiction, a sequel portrays events set in the same ...
s,
prequels, etc.
*
Ship of Theseus
The Ship of Theseus is a thought experiment about whether an object that has had all of its original components replaced remains the same object. According to legend, Theseus, the mythical Greek founder-king of Athens, had rescued the children ...
* Synonyms:
archetype
The concept of an archetype (; ) appears in areas relating to behavior, historical psychology, and literary analysis.
An archetype can be any of the following:
# a statement, pattern of behavior, prototype, "first" form, or a main model that ...
,
prototype (the first draft of an original work), model,
template
Template may refer to:
Tools
* Die (manufacturing), used to cut or shape material
* Mold, in a molding process
* Stencil, a pattern or overlay used in graphic arts (drawing, painting, etc.) and sewing to replicate letters, shapes or designs
...
, and
pastiche (an imitation of an archetype or prototype in order to pay homage to the original creator)
*
Sweat of the brow
Sweat of the brow is an intellectual property law doctrine that is chiefly related to copyright law. According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory. ...
Notes
References
*Gregory, Elizabeth (1997
''Quotation and Modern American Poetry: Imaginary Gardens with Real Toads''*Macfarlane, Robert (2007)
`Romantic' Originality', i
''Original copy: plagiarism and originality in nineteenth-century literature'' March 2007, pp. 18–50(33)
*Smith, Logan Pearsall (1924) ''Four words: romantic, originality, creative, genius'', Oxford, Clarendon Press
*Waterhouse, Francis A. (1926)
Romantic 'Originality'' in ''
The Sewanee Review
''The Sewanee Review'' is an American literary magazine established in 1892. It is the oldest continuously published quarterly in the United States. It publishes original fiction and poetry, essays, reviews, and literary criticism.
History
''T ...
'', Vol. 34, No. 1 (Jan., 1926), pp. 40–49
External links
"Originality" BBC Radio 4 discussion with John Deathridge, Jonathan Rée and Catherine Belsey (''In Our Time'', Mar. 20, 2003)
{{Appropriation in the Arts
Creativity
Intellectual property law
de:Original