1 The Background: The Concept of Originality in Copyright Law

As is well known, the classical British definition in copyright law was that the author had to exercise “skill, labour and judgement” when creating a work of copyright if it is an authorial workFootnote 1 – only that, together with a recording of the work,Footnote 2 leads to copyright protection. This was the position since the Copyright Act of 1911,Footnote 3 as decided in University of London PressFootnote 4 in 1916, and affirmed in LadbrokeFootnote 5 (decided under the 1956 Copyright Act).Footnote 6 These cases initially remained good law under the present CDPA 1988: “original” means that the work “originates” from the author. It does not mean creative, bearing certain traces of the author’s individual personality, although this will often be the case, especially if the work is a work of art in the ordinary meaning (such as a novel as an instance of a literary work). However, the rationale for protection is safeguarding a person’s investment, the skill, work, effort, knowledge and also the assumption of the commercial risk. The author’s protection materialises in the grant of the property right of copyright to the maker-author as first owner for his or her own effort and investment, and protection excludes results arising from copying someone else’s effort and investment.Footnote 7 This conception of originality is generally shared by other copyright systems in the Common Law world,Footnote 8 but with some qualifications, particularly in the USA with the case of Feist, according to which not just “sweat of the brow”, not pure routine, but only some limited creativity amounts to originality and confers protection.Footnote 9 In fact, where exactly the threshold of originality is situated only emerges in decisions for each individual case, and the originality levels have arguably not been consistent for all categories of copyright works within one jurisdiction.Footnote 10

The author’s rights countries on the European continent, however, consider works as original if “they bear the stamp of the author”,Footnote 11 so the work must show some individuality as a result of the author’s specific decisions and choices: the work is not commonplace but can be traced back to a certain person as its maker, which indicates a modicum of creativity on the author’s part. In reality, the difference between copyright-originality and author’s right-originality is much smaller than this academic juxtaposition may suggest.Footnote 12 The protection philosophies are, however, indeed different: in short, in copyright systems, the author is protected as property maker and owner through the work he or she creates, in author’s rights countries, the work is protected through the author’s personality which shines through the work and so confers some individuality on it.Footnote 13

Under the influence of case law by the Court of Justice of the European Union (CJEU), starting with the decision of Infopaq in 2009,Footnote 14 the traditional British skill and labour approach had to transform somewhat. In a line of cases, the CJEU developed an interpretation of EU copyright law regarding the meaning of “own intellectual creation” as the definition of originality in the Software Directive,Footnote 15 the Term Directive,Footnote 16 the Database Directive,Footnote 17 for certain types of works of copyright, initially to ascertain the meaning of “work” in the reproduction right of the Information Society Directive.Footnote 18 In Infopaq, the court said – in relation to possible originality of a sequence of eleven words – that “words … considered in isolation, are not as such an intellectual creation of the author who employs them. It is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation”.Footnote 19 This view was expressed even more clearly in Painer: “As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production. … By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’”.Footnote 20 The emphasis on creative choices for establishing originality appears in several later decisions, particularly in Cofemel.Footnote 21 These and a few other relevant CJEU cases will reappear in the discussion of THJ Systems Ltd. v. Sheridan below.

Although the starting point was a statutory interpretation of EU Directives dealing with specific types of copyright work, the CJEU’s approach seems to be that it has distilled a general definition of originality for all categories of copyright works which needed to be implemented in the national copyright laws of the EU Member States, including Britain at the time. Some academics then estimated that the CJEU decisions would provoke a decisive transformation of the traditional originality approach to “skill and labour” in UK copyright law.Footnote 22 However, I have always maintained that the CJEU cases would only produce a change of emphasis in the classical British originality definition from “skill, labour and judgement” to “judgement” (or: “choice”) in particular, that is, an orientation of originality more towards the position in Feist in the USA.Footnote 23 This raises the standard of originality in the UK to some extent (although with little practical effect),Footnote 24 but it does not abandon the copyright protection philosophy. The USA undoubtedly have a copyright system, as particularly the US rules on works made for hire and the possibility of corporate authorshipFootnote 25 demonstrate. Therefore, the argument, the CJEU imposes on UK copyright law an alien author’s rights approach to originality, is in substance unfounded, despite the more continental European language of “intellectual creation” and “personal touch” in the CJEU decisions.

After Britain left the EU on 31 January 2020, existing EU law remains in force in the UK as national law unless amended by Parliament, according to the European Union (Withdrawal) Act 2018. In addition, UK courts are no longer bound by the decisions of the CJEU after Brexit and can depart from EU case law.Footnote 26 If, for example, an English court is invited to revisit the definition of originality in UK copyright law, it could affirm the position following the line of CJEU cases beginning with Infopaq, or it could revert to the traditional skill and labour position, as stated particularly in University of London Press v. University Tutorial Press. Let’s see what the Court in THJ Systems Ltd. v. Sheridan did.

2 The Decision in THJ Systems Ltd. v. Sheridan

In THJ Systems Ltd. v. SheridanFootnote 27 the Court of Appeal had to decide whether the graphic user interface in question, and the graphic displays which the software used produces, are artistic works in which copyright subsists.Footnote 28 The artistic works at issue were risk and price charts produced with the software. On appeal it was no longer contentious that the charts are artistic works, and if originality subsists, who the author and copyright owner of these works is.Footnote 29 Thus only originality had to be ascertained, and relevant here was the interpretation of the meaning of “originality” in relation to the artistic works. Arnold LJ (who gave the only judgment with which the other judges agreed), set out the legal basis, including the case law of the CJEU on originality.Footnote 30 Originality has to be ascertained in accordance with the decisions of the CJEU that interpreted the definition of “own intellectual creation” in the EU Directives, and the Court cited in particular Infopaq, Painer, Cofemel, Football DatacoFootnote 31 and Brompton Bicycle:Footnote 32 “own intellectual creation” means that an author can express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch.Footnote 33 Only where the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom, the originality criterion is not fulfilled,Footnote 34 and for that rule Arnold LJ referred especially to BSAFootnote 35 and Brompton Bicycle.Footnote 36 This denotes the general idea in intellectual property law that executions solely dictated by technical function,Footnote 37 or being the result of a “merger” of idea and expression,Footnote 38 cannot obtain protection because no originality or creative freedom can emerge. The ruling in THJ Systems Ltd. makes clear that “originality” in copyright law in the UK has to be ascertained for all categories of work according to the criteria as developed by the CJEU, also after Brexit.

The defendants-appellants claimed that the judge at the first instance had not applied the correct test for ascertaining originality, and if he had, he would have found that there is no originality and no copyright in the charts. The Court of Appeal agreed that the judge did apply the wrong test, that is, the old British “skill and labour” test,Footnote 39 while he ought to have applied the EU “own intellectual creation” test instead.Footnote 40 The risk and price charts fall under the “artistic works” category as graphic works, whereby the Court stressed that artistic merit does not come in (“irrespective of artistic quality”),Footnote 41 and CJEU case law does not indicate anything else either. In relation to the originality of the visual appearance of the charts, the Court remarked that the designer-author designed the display and made a number of choices as to which commands are put where and what fonts and colours are to be used. It was not raised in court that the visual appearance was dictated only by technical considerations or other constraining rules which would not have allowed creative choices. Although only a low level of visual creativity went into the charts, there is still creativity and therefore copyright protection. However, with such a low degree of creativity the scope of protection is narrow and only a close copy would infringe.Footnote 42 As a result, also when the correct EU “own intellectual creation” test according to CJEU case law is applied, the charts are original and protected by copyright as artistic works.Footnote 43

3 EU-Originality Is UK-Originality

THJ Systems Ltd. v. Sheridan has shown that originality in UK copyright law continues to follow the CJEU’s settled case law on the interpretation of “own intellectual creation”, the statutory definition of originality in certain EU directives, initially for certain types of copyright work. But in the understanding of the CJEU its judicial interpretation of originality applies across all work categories. The old British “skill and labour” method was reshaped by the CJEU cases, starting with Infopaq, when the UK was still a member of the EU; the new approach was, in summary: “if a subject matter is to be capable of being regarded as original, it is both necessary and sufficient that the subject matter reflects the personality of its author, as an expression of his free and creative choices”.Footnote 44 The difference between the UK skill and labour concept and the “European” understanding of originality was always quite limited, as the application of the skill and labour-test in Sawkins v. HyperionFootnote 45 shows, before the CJEU judgment of Infopaq. In that decision, in effect a restoration case concerning manuscripts of scores of baroque music (which was itself never copyright-protected), the Court of Appeal gave the musicologist who prepared the music performing edition or restoration copyright protection for the edition on the basis of the traditional “skill and labour test” in the UK. However, in France in a parallel case with the same claimant on the same facts just before the English case, the French court also granted author’s rights protection for the restorations, using the traditional French personality-creativity test of originality. This is a real test case because it involved two decisions at the same time on the basis of the same facts using the conceptually different British copyright and French author’s right originality tests, with the same outcome.Footnote 46

In a similar vein, THJ Systems Ltd. v. Sheridan showed that the initially (though incorrectly) applied traditional “skill and labour” test at the first instance and the newer, accurate “own intellectual creation” test by the Court of Appeal lead to the same results.Footnote 47 Admittedly, each test requires a different emphasis: “skill and labour” would focus more on the work and investment originating from the author, while “own intellectual creation” would stress more the judgement and choices by the author which are personal and render the work more individual, separated from pure commonplace products. In this way, the work reflects the author’s personality to some extent, as a result of the author’s creative choices – or judgement. The expression “to some extent” is of central importance, because the whole “European” originality conception is based on pragmatism as much as the British one. This becomes apparent particularly from the practical example in PainerFootnote 48 and THJ Systems Ltd emphasises that point:Footnote 49 the exercise of choices need not amount to much to become sufficiently creative for originality and protection; in particular, an artistic element is never necessary to achieve an intellectual creation. This pragmatism – labour traced back to the author involving some free individual choices – ensures a very similar outcome for both originality conceptions in the vast majority of cases.

The “own intellectual creation” test is usually referred to in the UK as the “European” originality concept,Footnote 50 but what is now the “European” element of this test if it is evidently applied in the UK as well after the UK has left the EU? “European” really means “European Union”, not “Continental European”. It is debatable to what extent the EU approach to originality that the CJEU sets out is really a true representative of the originality conception of Continental European author’s rights systems; it is perhaps more a specific EU-law conception in its own right.Footnote 51 The supranational quality of EU law transforms the national originality tests in the author’s rights systems of EU Member States as well. However, the UK is no longer a member of the EU, and, as said earlier, the EU Withdrawal Act 2018 stipulates that the Supreme Court is not bound by any retained case law of the CJEU.Footnote 52 But generally, any question as to the meaning or effect of any retained EU law is to be decided by all courts in accordance with any retained case law and any retained general principles of EU law, as far as that retained EU law is unmodified and as far as retained case law and EU principles are relevant to it:Footnote 53 that should cover the CJEU case law on “own intellectual creation” as stated in the (retained) EU-Directives.

The Supreme Court could theoretically overrule decisions like THJ Systems Ltd,Footnote 54 but that is improbable. It is more likely that the CJEU and the Supreme Court may deviate somewhat from one another in equivalent cases over time, as it happens within the (formerly imperial) Anglo-Saxon copyright family as well. However, the CJEU will certainly remain persuasive authority for the time being, and this is in line with the general trend to harmonisation of intellectual property law at international level. It appears that English law has now fashioned its own concept of “own intellectual creation” originality under the influence of EU law. It frequently happens in comparative law that originally foreign legal institutions are incorporated into, and adapted to, the domestic legal system. What we have now is a newer British conception of originality which is currently aligned with EU law. Therefore, decisions like THJ Systems Ltd could also serve as persuasive authority in the EU in cases with equivalent facts. This suggests that the term “European originality”, denoting something foreign, becomes increasingly misplaced in the UK in relation to the newer “own intellectual creation” interpretation of originality as initially developed by the CJEU. We rather find a reshaped British understanding of originality, not an “alien imposition” from outside. Critics who disapprove of influences from abroad may also want to think of expurgating about a third of the words in the English language because they derive from the French. Any destructive nationalism, which has surged in Brexit politics, should remain consigned to the dark epochs in history.