HOME
        TheInfoList






The threshold of originality is a concept in copyright law that is used to assess whether a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not. In this context, "originality" refers to "coming from someone as the originator/author" (insofar as it somehow reflects the author's personality), rather than "never having occurred or existed before" (which would amount to the protection of something new, as in patent protection).[1]

Copyright finds its international commonality in the Berne Convention that creates the foundation of several concepts of international copyright law, however the threshold for attracting copyright is not defined. This threshold is up to each jurisdiction to determine. While works that do not meet these thresholds are not eligible for copyright protection, they may still be eligible for protection through other intellectual property laws, such as trademarks or design patents (particularly in the case of logos).

Difficulties arise when attempting to determine the boundary line between mechanical or random proces

Difficulties arise when attempting to determine the boundary line between mechanical or random processes and instances in which the slight intervention of a human agent results in the production of a copyrightable work. The Congressional Office of Technology Assessment posited that the question is open as to whether computers are unlike other tools of creation in that they are possible of being co-creators.[56][57] The U.S. Copyright Office has taken the position that "in order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable."[58]

Some countries grant copyright protection based on how much labour and diligence it took to create a work, rather than or in addition to how original a work is. This is referred to as the "sweat of the brow" doctrine in relation to the idiom, "the sweat of one's brow".

The sweat of the brow doctrine has been recognized at various times in the United Kingdom, Canada, Australia, and elsewhere. The 1900 UK case Walter v. Lane ruled that the copyright of an account of a speech transcribed by a reporter belonged to the newspaper he worked for because of the effort it took to reproduce his spoken words.[59]

Courts in the United States rejected this notion in Walter v. Lane ruled that the copyright of an account of a speech transcribed by a reporter belonged to the newspaper he worked for because of the effort it took to reproduce his spoken words.[59]

Courts in the United States rejected this notion in Feist Publications v. Rural Telephone Service (1991) and Bridgeman Art Library v. Corel Corp. (1999). In these cases, the courts asserted that originality was required for copyright protection. Since the Feist decision, many common law countries have moved towards applying a similar standard.[60] A similar precedent was set in Canada by cases such as Tele-Direct (Publications) Inc. v. American Business Information Inc. (1997), where the court concluded that compilations of data must embody originality and creativity in order to be copyrighted.[60]

In March 2012, the European Court of Justice also set a similar precedent, ruling that Football DataCo could not claim copyright on association football match schedules due to the skill and labour used in their creation, as their compilation is "dictated by rules or constraints which leave no room for creative freedom".[61] In November 2015, also citing the European Court of Justice, the United Kingdom's Intellectual Property Office clarified that it was "unlikely" that a digitised reproduction of a work out of copyright would be original enough to attain a new copyright.[62]