Intellectual property law

Introduction

This paper provides a critical analysis of the following statement, “In relation to the requirement of originality as a pre-requisite for establishing copyright, discuss the proposition that the decision in Walter v Lane [1900] AC539 left the originality threshold unrealistically low.” This case is regarded as a powerful example of the hullabaloos surrounding the establishment of subjects, as well as objects in the British copyright law. Firstly, it purposes to illustrate the manner in which different copyright works could or could not emerge when related to verbal, and also written record. Secondly, it is evident that it demonstrated how reporters’ labor could be significant in making them “authors,” based on the copyright law. Significantly, this case presented an awkward position of its decision prior to the Copyright Act (1911) enactment, which facilitated doctrinal discussion on its validity.

Only by taking a close look at the speech reports (whilst comparing them with other similar reports) and considering their technological context (that at such a time, sound recording was a novelty), one can appreciate the attempt of the court to find the process involved in the creation of the reports to be involving labor, skill, as well as judgement. In 1911, there was an alteration of the terms in which protection was provided. Thereafter, the availability of protection was only for “original” literary works among others. The decision made in Walter v Lane provided an understanding of “originality” threshold, which was also affirmed in Express Newspapers v News (UK) and Sawkins v Hyperion, which assumed “originality” threshold as good law. The reasoning provided by their Lordships in Walter v Lane can be applicable when related to the post-Inforpaq era. However, when looking at the facts, questions are risen regarding the European originality standard.

The concept of authorship and originality

Notably, creative works are provided with copyright protection, but only if validated to be original. In this context, the classical statement of the definition of originality is noted in the case of University of London Press Ltd v University Tutorial Press Ltd, where Peterson made it clear that the term original does not imply that the work must be an expression of inventive thought or original thought. He added that Copyrights Act are not associated with idea originality, rather, they are connected with thought expressions, and also in cases involving literary works, with the thought expression brought out through in print or even in writing. In this regard, he stressed that originality relates to thought expressions. However, copyrights Acts do not require the expressions to be in novel or original form, but the work should be directly copied from another piece of work, originating from the author.

Whilst considering the explanations provided by Peterson, it is evident that the concept of originality relates to the concept of authorship where originality is concerned with the relationship shared between the work and the author. In other words, originality is not in any way, concerned with if the work is novel, unique, or even inventive. Whilst novelty is a requirement in patent law, it focuses on the existing relationship between the state of art and invention. As such, when copyright ensures that work is original, this implies that the author should exercise requisite intellectual qualities whilst producing a given work. Most specifically in the determination of whether a given work is original, the copyright law is concerned with the author’s input, which consequently contributes to the ultimate work.

Paradoxically, the aforementioned understanding of the term “originality,” was developed from a judicial interpretation of the authorship concept when the express originality statutory requirement was not there. Thus, in the case of Sawkins v Hyperion Records Ltd, Mummery noted that the House of the Lords expounded on the vital originality elements over the past century. Overall, the decision in Walter v Lane puts into consideration, the Copyright Act 1842, which recognizes the reporters’ copyright that has continually appeared intermittently in various law reports, thus, being discussed, in periodical literature, as well as books. Many judges, as well as commentators, have expressed some unease when engaging the decision, although to varying extents. However, most of them collectively agree that the decision posed a good law.

Walter v lane

Facts and decision

The proprietors of The Times newspapers sued John Lane for copyright infringement. This litigation was centered on a book’s legality, which Lane published and entitled as “Appreciations and Addresses delivered by Lord Rosebery.” The book allegedly copied verbatim, all the reports that the London paper had previously published. Ironically, what made the happenings peculiar was a procedural subtlety, for the fact that Lord Rosebery was not present as the claimant. The case was brought forth, with much emphasis on the provisions of the Copyright Act 1842 that protected books and as such, the key issue that was raised was if it was possible for a speech report to be viewed as a book, in an instance where the reporter happened to be the author. Finally, the case was presented before the House of Lords, and the majority of the involved lords such as Earl of Halsbury, Lord Brampton, Lord James, as well as Lord Davey held that the case involved a copyright infringement, and this was a reverse of the court of appeal decision, and it made the injunction perpetual. Conclusively, Lord Robertson dissented and noted that it was difficult understanding what attribute of the author belonged to the reporter.

Criticism of the decision

This section re-examines the decision made in Walter v Lane. Even though the decision could be supported in its terms when it was decided, it is argued that despite courts persistent reference to the decision, it is limited significantly, when considering the modern copyright law.It is significant to take note of the fact that the relevant law ought to have been derived from the Copyright Act 1842, which purposed to confer copyright upon the book author. Copyright was defined to as the sole liberty of printing, or rather, multiplying cook copies, whereas book was defined as every volume, or part of a volume, map, chart, pamphlet, or even sheet of music that is separately published. On the other hand, the definition of author was not provided. The Copyright Act 1842 thus, protected written word excluding purely oral compositions. However, whilst operating parallel to the Copyright Act 1842, the lectures Copyright Act 1835 protected lectures derived from unauthorized printing, as well as publication; and there was also a common law right that prevented the publication of a speech until the speaker purposed to deliver it to the public. However, it is quite evident that Lord Rosebery could not claim such rights. The protection provided under Copyright Act 1835 was never available, owing to the fact that there was no formal advance notice that was in the form of writing that was required by the section 5 of the Act. Moreover, the common law copyright was not available, owing to the fact that Lord Rosebery had already provided his speeches to the public, and that was in the presence of the reporters, thus, impliedly, he authorized further publication.

Clearly, North J. had issued an interim injunction that restrained a defendant from publishing book copies until judgement. Based on the provisions of the Copyright Act 1842, the only matter that should allow the existence of a copyright was the report of Lord Rosebery’s speech, and however much the reporter was not the original author, he went ahead and unquestionably produced a written speech report, which later appeared in The Times. As such, it posed a crucial question of whether the reporter happened to be the original author of the said report, confined within the Copyright Act 1842, which could entitle him the copyright. Evidently, North J. held that the reporter was the report’s author. However, the basis of the decision he provided was not entirely clear. As such, he stressed that as a reporter, he put down the speech, of which there existed no such text previously. He as well stressed that the text was put into a form that could be kept, and also perpetuated. Thereafter, he presented various cases, and none of them seemed to bring forth a conclusive authority for his decision. Two cases that the counsel of the plaintiffs cited as to provide authority for the proposition, implied that the court proceedings’ reporter had the entitlement for the copyright of the report. However, those case reports were very brief, and they had some level of ambiguity in their statements, considering facts, particularly whether the reports had verbatim record of proceedings. North J. declined determining whether a court judgement reporter acquired copyright in his report. Notably, the remaining cases associated copyright in a new material, and also in compilations, as well as in the translation of the existing material. However, North J. had the conclusion that in the application of the principles of those cases, it seemed that the reporter may purpose to make a speech report that had already been reported to the public or may be intended to be reported. As such, the reporter may then have the copyright of his own publication, in an instance where he procures the said material himself.

The defendant appealed to the Appeal Court, the Appeal court treated the appeal as a trial of action, and as such, gave the defendant judgement, thus, discharging the injunction. Lindley M. R gave a brief court judgement and in itself, the terms of the Copyright Act purposed to confer a book’s copyright on the author book’s author, first published in the UK. In this regard, the court was clear that the Act provided that “author” was not in any way, synonymous to the first publisher, and that the person that first published the book, on the basis alone, was not to acquire he entitlement to copyright, but only in an instance where he was also regarded as the composition’s author. Whilst responding to North’s finding, which stated that however much the reporter did not have the copyright of the speech, he had the entitlement to acquire a copyright of his report. As such, M. R stated that the report, as well as the speech that was reported, was doubtlessly, different things. However, either the printer or even the publisher of the said report was not to be regarded as the author of the reported speech, which is the only thing giving value or rather, interest to the report in question. Notably, the printer or even the reporter of a speech should not be regarded as the author of the speech report when considering the intelligible sense of the term “author.” This is owing to the opinion that holding every speech reporter as having a copyright of his own report, would imply that the Copyright Act would have to be stretched, to an extent in which the legislature would not be able to contemplate. The Copyright Act was intended to protect authors. Moreover, however much it might be stressed that reporters ought to be protected against unauthorized appropriation of their skills, and labors by other individuals, it in no means evident that the parliament would purpose to give the same footing to reporters as it is given to authors.

Conclusion

From the above indications, it is worth noting that the case of Walter v Lane [1900] AC539 was indeed a powerful example that brought forth various controversies in the British copyright law. The reasoning provided by their Lordships is notably unacceptable by the modern copyright law, owing to the fact that whilst looking at the facts, questions are risen regarding the European originality standard. The arguments provided above denote that the judgement, in this case, would not be acceptable, were it to be looked into in the modern law.

Bibliography

Legislation

Copyright Act (1835)

Copyright Act (1842)

Copyright Act (1911)

Cases

Express Newspapers v News (UK) [1990] FSR 359 Sawkins v Hyperion Records Ltd [2005] EWCA Civ 565 University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 Walter v Lane [1900] AC539

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