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Copyright - Differences between the European and British standards -…

- - - - However, this would be the case only if the amount of labour was substantial. For example, where the process of compilation involves little effort or judgement and the effect is commonplace, the work will not be treated as original; thus the selection of seven tables at the front of a diary, consisting of things such as days and dates of the year, tables of weights and measures, and postal information,93 was held by the House of Lords to be non-original.
      - Similarly, in another case involving a local timetable showing a selection of trains to and from a particular town that was prepared from official railway timetables, the compilation was held to be non-original.94
- - - - In SAS Institute, Advocate-General Bot pointed to a stage in the production of a computer program, between defining the tasks to be performed and developing the code, from which the selection and compilation of elements could contribute towards the originality of the program.112
      - In the case of a photograph, the Court has indicated that ‘pre-expressive’ choices will be relevant at least insofar as the ‘preparation stage’ is concerned—that is, choosing ‘the background, the subject’s pose and the lighting’.113 In the case of databases, it is quite clear that the ‘intellectual creation’ must be the result of ‘selection’ and/or ‘arrangement’ of the data.114 But it seems that the sort of commercial decisions that were considered relevant ‘pre-expressive’ work in the Ladbroke case would no longer be relevant; rather, the European standard seems focused on contributions and choices that are directly relevant to the structuring of the expression of the work.
    - - So, for example, in relation to the labour that confers originality with respect to literary compilations, the courts would consider the footwork involved in discovering the information,108 or the selection or choice of the materials that are later embodied in the work.
        
        This was made clear in Ladbroke v. William Hill, in which the question arose as to whether football pools coupons (which listed matches to be played and offered a variety of bets arranged into 16 categories) were original compilations.109
        
        On the basis that the expressive form of the coupons inevitably followed from the preceding commercial decisions as to the bets that should be offered, the appellants argued that the coupons were not original.
        
        The House of Lords rejected these claims.110 According to Lord Reid, it was artificial to divide the inquiry up into, on the one hand, the commercial decisions about which bets to offer and, on the other, the form and arrangement of the table. The selection of wagers and their presentation was so interconnected as to be inseparable. Consequently, when considering originality, it is inappropriate to dissect the labour, skill, and judgement into pre-expressive and expressive stages; both elements should be taken into account to determine whether the threshold had been reached.111
- - - - In Interlego v. Tyco Industries,115 the Privy Council was called upon to decide whether there was copyright in drawings for the children’s building blocks known as Lego bricks. The particular drawings had been produced in 1973, but were based upon earlier drawings, so the question arose as to whether the alterations made in 1973 were sufficient to produce an original artistic work.
        
        The major differences between the drawings concerned the sharpening of the outer edges of the tubes in the brick, changes in tolerances, and increase in the radii on the outer edges of the knobs on the brick from 0.2 mm to 0.3 mm. Of the changes made, only the first was shown pictorially; the others, by letters and figures.
        
        While the Privy Council recognized that the alterations were technically important, they were not sufficient to render the work original because, in the case of artistic works, the change must be visually significant—that is, to confer copyright, the skill and labour must produce a change that is relevant to the category of work in question. On the facts, it was held that because the changes made to the drawings were primarily to the written specifications, this was not an alteration of visual significance.116 As such, the drawings were not original.
    - - From the logic of the decisions, the Court would simply ask whether the addition of the text to the traced drawings of the bricks involved creativity, not whether that creativity was literary or artistic.
        
        Nevertheless, on the facts, the same outcome could be justified under the new European originality standard. Although the Privy Council found that the act of tracing involved ‘skill’, but that the skill was of the wrong kind, under European case law ‘originality’ is no longer to be conceived in terms of skill, but instead of creative freedom—and there is clearly no creative freedom in tracing. Moreover, while the decisions as to the dimensions of various aspects of the modified bricks would not be disregarded because they were ‘literary’ rather than ‘artistic’, those decisions would not have been regarded as creative, because they were heavily constrained by function and left little formative freedom to the designer.
    - - The claimant argued it had copyright in two images of the human heart. To develop these, two of the claimant’s employees had begun with a stock diagram of a heart (that had been licensed) and then, having copied it (to create two hearts next to each other), they labelled the left one ‘circulation system’ and the right one ‘electrical system’. To the left one, they simply added eight labels indicating where the blood was coming from or going. As to the right, they deleted 14 arrows which represented blood flow, and added two nodes and two lines in yellow, representing the electric system, along with five labels.119
        
        According to the judge, the standard of originality was low, and the changes, including the words, were sufficient to create ‘a new, original work’.
        
        While we think the Court was correct to consider the changes as a whole and not to divide the work into literary and visual elements, we are surprised at some of the reasoning and the result: at no point did the court reflect on the nature of the choices made by the two authors, whether they amounted to mere skill or to creative choices. Surely, this was a good example of a situation where the change in the test would have made a difference?