Test of Originality [Intellectual Property] 2nd Post

1.      University of London Press v University Tutorial Press (1916) Ch. 601
The question arose as to whether certain mathematics exam papers were original literary works. The exam papers consisted of conventional maths problems in a conventional manner. The court held that the Copyright Acts are not concerned with the originality of ideas, but with the expression of thought. The simple fact that the authors drew on a body of knowledge which was common to mathematicians did not compromise originality. The requirement of originality, it was held, does not require that expression be in an original or novel form. It does, however, require that the work not be copied from another work. It must originate from the author. As such, even though these were the same old maths problems which every student is familiar with, and even though there was no creative input, however, the skill, labour, and judgement of the authors was sufficient as to make the papers original literary works. The court held on the basis that what is worth copying is prima facie worth protecting.

2.      Pacific Film Laboratories v Fed. Commissioner of Taxation (1970) 121 CLR 154
In this case, the issue arose is whether the reproduction of prints owned by a third party and for that third party was an act of sale which could incur sales tax. Pacific Film argued that as it had no property right in the prints, it was not selling anything to the customer which might be taxed. The High Court rejected this argument saying that when Pacific Film reproduced the customer's negatives, under authorisation from the customer, the copyright was owned by the customer but the chattel produced in the process of reproduction was owned by Pacific Film. The sale of this chattel to the customer incurred the sales tax. Further the court held that he copyright is not a right in an existing physical thing. It is a negative right, as it has been called a power to prevent the making of a physical thing by copying.

3.      Elanco v Mandops (1979) FSR 46
The plaintiffs had copyright in instructions for the use of a weedkiller, drawn from public sources. The defendant produced instructions for its product using the plaintiff’s material. After objections from the plaintiffs, the defendants recast these instructions several times. Despite these revisions, in an interlocutory application, the final version was treated as arguably infringing because the defendants had not returned to public sources but always drew their information from the plaintiff’s instruction. Thus, Elanco effectively secured a monopoly over the information contained in their instruction despite the facts that it was the public domain. Copyright does not prevent others using the same sources but prevents copying of the effort made in creating the secondary work.   
The Court of Appeal accepted that a label of instruction placed on the side of a barrel of herbicide was a copyright literary work. Further, the court took note that a great deal of time and labour had been spent in this compilation, and there could be no doubt that the author was entitled to protection of the fruit of his labour. It is clear that the court placed emphasis on the skill and labour in developing the compilation. The court view that copyright not simply as protecting bare expression itself but also the process by which that expression came into existence. The main emphasis is not to allow someone to take advantage of another’s work and reap something which he has not sown. The skill, labour and judgment involved in the process of copying will not confer originality.

4.      Independent Television Publications Limited v Time Out Ltd (1984) FSR 64
In this case, the plaintiffs published weekly magazine containing advance details of television and radio programmes for the following week. They asserted ownership of the literary copyright in their daily programme schedules, claiming that these constituted compilations under the Copyright Act.  The defendant also published a weekly magazine which included details of forthcoming cinema, sporting and musical event. The said magazine also listed advance details of selected television programme, and it was admitted that these were taken from the plaintiff listing and schedules.
The court granted the injunctions sought and upheld the view that there should not be any short cut by producing works of others. The programme schedules were constituted compilations and they required a great degree of skill and labour in their preparation and were thus protected as literary copyright works inventiveness

5.      Goodyear Tyre @ Rubber v Silverstone Tyre @ Rubber (1994) 1 MLJ 348
This case concerned whether copyright over artistic drawings of the tyres can be used to stop others from manufacturing articles according to the drawing. The plaintiff in this case contended that the defendant tyre products were reproduction either from the plaintiff’s drawing or from the plaintiff’s tyre product by reverse engineering. The court held that the function of copyright is to preserve rights over the artistic expression of the drawing and not as a measure to protect the functionality of the articles drawn. What the plaintiffs are in essence asking to protect is the idea of the function of the tyre and not its artistic value. 

Test of Originality [Intellectual Property]

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1.      Millar v Taylor (1769) 4 Burr 2304
In this case, the court held that common law rights were not extinguished by the Statute of Anne, the first copyright law in the Kingdom of Great Britain. Thus, there is a perpetual common law of copyright and that no works ever enter the public domain.  Under this ruling, the publishers had a perpetual common law right to publish a work for which for which they had previously acquired the rights and no limitation of time for such right so as to cause the work to pass to the public. When the statutory rights granted by the statute expired, the publisher was still left with common law rights to the work.
2.      Donaldson v Becket (1774) 4 Burr 2408
This case was an injunction founded upon the judgment in Millar v Taylor and denied the existence of absolute common law of copyright. The court in this case held that copyright is a creation of statute and its duration of protection is limited. Thus, the exclusive right of authors is confined within the limits prescribed by the statue. 

3.      Lau Foo Sun v Government of Malaysia [1974] 1 MLJ 28 (FC)
The appellant, a chartered and structural engineer, had claimed a declaration that he was entitled to the copyright in the engineering drawing and designs prepared by him for the construction of double-storey classrooms for Tun Fatimah School in Johor Bahru and some other schools for the Government. It was held in the High Court that the appellant in preparing the drawings had substantially copied from PWD drawings and therefore the appellant’s drawings and designs were not original literary works so as to qualify for copyright protection. On appeal, the issues arose before the court are;
a)      Whether or not copyright exists in engineering drawings and designs.
b)      Whether or not the engineering drawings and designs are original works within the meanings of the Copyright Enactment.
The court, nevertheless, allowed the appealed based on the statutory presumption that copyright exist in any work. The presumption remains unrebutted since the respondent failed to produce any corresponding PWD drawings for comparison so as to maintain their contention that the drawings were not original. 
4.      Exxon v Exxon Corporation
In this case, the plaintiff argued that the term “Exxon” is protected by copyright law because he put considerable time and energy into the development of the name and that there was a significant investment into creating the name, thus, rendering it as an original literary work.
However, the court held that the name “Exxon” is only a word and as such is not capable of any copyright protection. A word alone does not convey any intangible information beyond its dictionary meaning and thus can’t be a literary work. Further, the court held that allowing copyright in single words would overlap trademark law entirely. Copyright law originality is a concept distinct from novelty in design law and from obviousness in patent law. 

5.      Re Dickens [1935 1 Ch. 267
The case concerned the last will and testament of Charles Dickens, an English novelist. In his will he had left all of his real and personal estate (including his copyrights) to John Forster and Georgina Hogarth upon trust for his children. In addition he left Ms Hogarth ‘all of my private papers whatsoever and wheresoever’. Among the private papers that Hogarth received was a manuscript of an unpolished work, originally written for the instruction of Dickens’ children, The Life of Christ. Hogarth, in her will, bequeathed the manuscript to her nephew, Henry Fielding Dickens, who subsequently left it to his wife, Marie Therese Dickens, the appellant. The appellant assigned the copyright in the work to Associated Newspapers Limited. The residuary legates of the Dickens estate sought the proceeds of the sale, arguing that the copyright in the work did not pass with the manuscript to Georgina Hogarth. The court held in the respondent’s favour on the basis that copyright in an unpublished work was an incorporeal right of property which subsisted independently of the actual manuscript.