Originality and different IPRs

Ever heard someone call their work original and wonder what that really means? Originality can mean different things to different people, and oddly enough it can also mean different things to different intellectual property rights.

This photo was shared under a Creative Commons Attribution License and has been taken from the Flickr photo stream of Chris Connelly
This photo was shared under a Creative Commons Attribution License and has been taken from the Flickr photo stream of Chris Connelly

Copyright law, trademark law and patent law all prescribe different requirements to be satisfied in order to seek protection under them. All three intellectual property rights are relevant to artists, make no mistake about that – copyright law is probably the most obvious owing to the protection it offers to creators of different kinds of work by establishing their ownership over a particular artistic work; trademark law enables artists to protect the details and aspects of their artistic work, copyright law cannot get to (like brand names, logos, fonts and catch-phrases); and patent law is important to artists who find themselves being inventors of sorts (performance artists who’ve devised equipment that helps support their instruments or acts OR designers who want to protect their jewellery and garment designs by way of a design patent.

So why understand ‘originality’?

By starting out with a basic understanding of what originality might mean to different intellectual property rights, you as an artist, have a better chance of figuring out whether or not your work is eligible for a certain kind of legal protection. Originality doesn’t always have to mean innovative or unique – in some cases it just has to hint at the lowest possible threshold of creativity.

How original is original when it comes to Copyright law?

Originality in the realm of copyright law just means one thing – minimal creativity. The reason behind this relaxation of the originality standard is to make sure that the law helps in encouraging and fostering creativity. Regardless of the country or jurisdiction, Copyright law world over has been viewed to have one primary purpose  – encourage artists and innovators to create more. What better way to do that, then to create a law that offers protection to works of art without actually judging them as good or bad, intellectual or silly.

So what’s the standard in India?

In India, determining the originality of a work for the purpose of establishing copyrightability depends on what is known as “the skill and judgment test”. In the case of Eastern Book Company v. D.B.Modak (AIR 2008 SC 809), the Supreme Court of India made it absolutely clear that an original work referred to something that involved the application of the author’s or creator’s skill and judgment in the creative process. The case itself was about the copyrightability of summarised Court decisions that appear as case notes before the actual Court judgment. The reason why this decision was so important was because it eliminated the use of another standard to determine originality in copyright law – the “sweat of the brow” doctrine. Basically, the “sweat of the brow” doctrine said that as long as you could show that you had contributed to the creation of the work with mere labour, the work itself could be considered original. This means, that according to the older “sweat of the brow” doctrine, the rather literal reproduction of someone else’s work might have been considered original just because there was some effort involved. The Supreme Court decided to re-examine and then eliminate this standard in favour of the “skill and judgment test” in 2008 because well, it actually took into account the effort of the creator but also emphasised the need for some kind of creative input from the author also.

The 2008 Supreme Court decision placed originality in copyright law, somewhere between mere mechanical reproduction and intellectual innovation – thereby keeping everyone happy. (Incidentally, the “skill and judgment test” was itself borrowed from a Canadian Supreme Court decision; CCH Canadian Ltd v. Law Society of Upper Canada [(2004) 1 SCR 339]. A closer look at American and Indian case law will also show you that the “skill and judgment test” isn’t very different from the “minimal creativity” standard adopted by American Courts in 1991 in the famous Feist Publications Inc. v. Rural Telephone Service Co. [499 U.S. 340 (1991)] which tried to look at copyright, originality and telephone directories (yes, that’s exactly what you read). American Courts had made it clear in this case that original works would mean works where the author could show that he or she had applied enough skill and judgment to reflect the lowest amount of creativity.

What’s originality in the context of Trademark Law?

In the world of trademark law, originality is best understood in terms of distinctiveness – the more distinct the mark, the better are the chances of it being eligible for legal protection. This is not to say that a trademark can’t include both distinct and generic artistic elements – for example, so many famous logos are a combination of distinct and non-distinct aspects, like say a distinctive symbol placed on top of what looks like the picture of a chair. In such a situation, the law can only protect the distinctive aspect of your registered trademark thereby not actually restricting someone else from using the generic elements in your trademark. In the context of passing off though – which is a situation where the misuse or misappropriation of a trademark leads to loss of reputation – well, in such a situation, distinct or no, the law can prevent the entire mark from being used. The thing to remember when attempting to design and register a trademark is to make it as distinctive as possible. Minimal creativity has no meaning in this context.

Alright and what would originality mean in the context of patents and designs?

Originality in the context of patents and designs really does mean just that – original. Original in terms of inventiveness and novelty – if the work created is not novel and has existed in some form earlier, well it wouldn’t be possible to patent the work. Ever wondered what prior art searches or references are? Very simply, it’s the process of making sure that no one else (individual or company) has already patented the work you’re trying to protect. So if you want to get something protected under the system of patents or designs – you have to make sure it didn’t exist before. The difference between patented works and those that have design protection is that the former are novel and useful, while the latter are novel and ornamental.

So, as an artist what do I need to remember about all of this?

Real simple – when someone says original work in the context of copyright law, they mean work that’s minimally creative and is the product of someone’s application of artistic skill and judgment. It doesn’t matter whether the work has existed before or not – all that matters is whether you can show some creative connection between the creator of the work and the work itself. With respect to trademarks, calling something original would just really mean distinctive – special looking that might have elements that are both unique and generic. Patents and Designs call for originality in the truest sense of the term – novelty. There’s no point trying to apply for design protection or a patent if you can’t prove that the work is completely novel and the product of some inventiveness.

This was just a general view of what originality might mean to different intellectual property rights – creative, distinctive or novel, depending on the context. If you have any questions about how this works or you’d like to say something about what you encounter when discussing originality, then do leave a comment or get in touch.

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