For copyright to subsist, the work in question has to meet the originality standard set out in copyright law (with the exception of entrepreneurial works – sound recordings and broadcasts). Originality is required for literary, dramatic, musical or artistic works. For example, a novel, a song, a script and a painting all need to meet the originality standard for copyright to subsist. Originality is a concept that is referred to in legislation but defined by the court of the relevant country. Generally, the requirement of originality is a fairly low threshold that protects works that have not been copied and are not commonplace. Courts in different jurisdictions have defined 'originality' in varying ways including: labour, skill and judgement (traditional UK approach), low modicum of creativity (US approach) and author's own intellectual creation (EU and modern UK approach).

What does ‘Originality’ mean?

Not copied from someone else – unlike patent law which protects ideas, copyright protects the expression of ideas. And more relevantly, it protects against copying among other acts. This means that if two people come up with the same plot line for a book independently, there will be no copyright infringement. Both people will get separate copyright in their individual works and be able to protect their copyright against others who have had access and made a substantially similar copy of their work.

Not commonplace – copyright strikes a balance with protection and ensuring people are not restricted from utilising common expression, especially if there are few ways of doing something. The words ‘wine with no worries’ were found to be too commonplace to receive copyright protection in Trinidad and Tobago in the 2017 case of Full Blow Entertainment v Devon Matthews. You can read Justin’s take on this case here.

Entrepreneurial works

Original works are often embodied in a physical form, giving rise to entrepreneurial works: sound recordings, broadcasts and in some countries typographical arrangements.  These works receive protection upon creation without the need for originality.

The relationship between original works and entrepreneurial works 

A song is a musical work. The recording of the song that you hear on a streaming platform is an entrepreneurial work. The underlying song may be owned by a person different from the owner of the sound recording. A good example of the significance of this is the Taylor Swift master recordings debacle. Taylor Swift was unable to purchase the master recordings (sound recordings) of her songs that were recorded by her initial music label. Since she owned the copyright in the songs themselves, she was able to re-record the songs when her initial music label contract had expired. Now, there are two versions of her songs available for listening, the original versions which are owned by a third party, and the Taylor’s Versions which are owned by Swift. Swift receives royalties for the literary and musical works when either version is played, but she will only receive revenue for the sound recordings when the Taylor’s Versions of the songs are played.

No need for registration

Unlike patents and trade marks, copyright does not require registration. While the US has a copyright registration system, this is a formality for bringing a copyright lawsuit. A US copyright registration does not validate copyright, and as such a court would still have to assess the originality of the work in question.

‍