No Originality No Copyright Subsisted in Literary and Artistic Works – a Comparable Snapshot of Originality Requirement Determined by the Practices of Vietnam, the United States, UK and EU

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The originality ascribing to a literary and artistic work is the prerequisite condition for such work to be protected by copyright legislation. In other words, no copyright subsistence is available without originality. Unfortunately, both the Berne Convention and the TRIPs do not define what the originality of a work is leading to the fact that contracting states independently construct their own originality standards in their national laws. Let’s have a quick look at different legal standards to determine the legal concept “originality” in the law and practices in Viet Nam, US, UK and EU.

Viet Nam: Originality means direct creation without reproduction of other’s work

The Vietnamese IP Law does not define what the originality is, instead, only regulates indirectly that the copyrightable works must be original ones (directly created by the author and not copied from others)[1].

The dispute focused on originality of literary, scientific, and artistic works in practice of hearing and enforcement of copyright in Viet Nam is rarely found since intellectual property cases solved by the court system or administrative authorities in Vietnam are very few (about 20-30 cases per year)[2]. The plaintiff (right holder) or attorney protecting his/her rights and interests generally do not have enough knowledge about the subsistence of copyright resulting in the failure in court litigation.

For example, according to the first instance case no 213/2014/DS-ST dated August 14, 2014 decided by the Tan Binh District People’s Court, Ho Chi Minh city, the plaintiff sued the defendant for copyright infringement on the work named “form of expression of traditional New Year painting" (see picture below) claiming for damages[3] and public apology in the newspaper. The defendant denied the claims, assuming that the work being used by the defendant is different from the plaintiff's work. It appears that the trial court implied that both the plaintiff's work named “form of expression of traditional New Year painting" (the work was granted certificate of copyright registration no. 169/2013 / QTG dated January 07, 2013 by the Vietnam Copyright Office) and the defendant's work are not original because the court declined the plaintiff’s petition, reasoning that both are inspired by folklore, meanwhile, copyright over separate images circulated for a long time in folklore whose authorship cannot be identified.[4]

The US: Originality means at least some minimal degree of creativity

According to the United States Copyright Act of 1976, a copyrightable work must have a minimal degree of creativity as the US maintains its viewpoint that no minimal degree of creativity, no copyright. The established standard “at least some minimal degree of creativity” originates from the US case law by the decision overruled the Supreme Court of the United States in Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).

According to the lawsuit, Rural publishes a typical telephone directory, consisting of white pages and yellow pages. The white pages list in alphabetical order the names of Rural's subscribers, together with their towns and telephone numbers. The yellow pages list Rural's business subscribers alphabetically by category and feature classified advertisements of various sizes. Rural distributes its directory free of charge to its subscribers, but earns revenue by selling yellow pages advertisements. Feist approached each of the 11 telephone companies operating in northwest Kansas and offered to pay for the right to use its white pages listings but only Rural refused to license its listings to Feist. Unable to license Rural's white pages listings, Feist used them without Rural's consent.

White pages of telephone directory - Source: Wikipedia

In reversing the lower courts’ judgments in favor of Rural, the Supreme Court concluded that the names, towns, and telephone numbers copied by Feist were not original to Rural and therefore were not protected by the copyright in Rural's combined white and yellow pages directory, and further added that copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity[5].

The United Kingdom: Originality means “sweat of the brow”

Unlike the US, UK follows “sweat of the brow” doctrine to determine the originality available in a work, whereby it believes that an author who created a work by his/her efforts, techniques, and expenses deserves to be protected to that work. In the Cummins v Bond case adjudicated by a UK Court in 1927, a psychic in a hypnotic trance state declared that she had written what the soul told her, through an automated writing process. In the Court, she admitted that she was not the author of such work. The creation input may be originated from the spirits. However, the Court held that she had worked enough in translating and transcribing the information transmitted from spirits, therefore, she had the copyright for such work. The Court also determined that if a spirit or a ghost commanded a living person by one device, this device was the copyright holder instead of spirits or the next person converting it[6]. 

European Union: Originality means the author's own intellectual creation

EU determines the originality existence of a work by the test that whether such work is the author's own intellectual creation. According to the case Infopaq International A/S v Danske Dagblades Forening, the European Court of Justice (ECJ) has its own position on identifying originality of copyright when it explained Directive 2001/29/EC on the harmonization of certain aspects of copyright law and the conditions for immunity from copy act (in the sense of intermediate and temporary storage of copyrightable information).

According to the lawsuit, Infopaq operates a media monitoring and analysis business which consists primarily in drawing up summaries of selected articles from Danish daily newspapers and other periodicals. The articles are selected on the basis of certain subject criteria agreed with customers and the selection is made by means of a “data capture process”. The summaries are sent to customers by email. DDF is a professional association of Danish daily newspaper publishers, whose function is inter alia to assist its members with copyright issues. The data capture process comprises the five phases described below[7] which, according to DDF, lead to four acts of reproduction of newspaper articles.

The ECJ concluded that an act occurring during a data capture process, which consists of storing an extract of a protected work comprising 11 words and printing out that extract, is such as to come within the concept of reproduction in part within the meaning of Article 2 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, if the elements thus reproduced are the expression of the intellectual creation of their author. In addition, the ECJ added that the act of printing out an extract of 11 words, during a data capture process such as that at issue in the main proceedings, does not fulfil the condition of being transient in nature as required by Article 5(1) of Directive 2001/29 and, therefore, that process cannot be carried out without the consent of the relevant right holders.

In summary, the ECJ maintained its viewpoint that the storing an extract of a protected work comprising 11 words and printing out that extract did not constitute temporary and transient reproduction, but [8] did come within the concept of reproduction in part within the meaning of Article 2 of Directive 2001/29/EC, if the elements thus reproduced are the expression of the intellectual creation of their author. Accordingly, the EJC’s implications are that the European Union national courts should not assume that excerpts or paragraphs copied from another’s copyrightable work were too small and therefore did not infringe copyright[9].

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