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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
(Ngày đăng: 2020-09-25)

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

Email: vinh@bross.vn


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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Bross& Partners, a renowned and qualified Patent, Design, Trademark and Copyright agent of Vietnam, constantly ranked and recommended by the Managing Intellectual Property (MIP), World Trademark Review (WTR), Legal 500 Asia Pacific, AsiaLaw Profiles, Asia IP and Asian Legal Business, is providing clients all over the world with the reliable, affordable contentious and non-contentious IP services including enforcement, anti-counterfeiting,  litigation regarding trademark, trade name, industrial design, patent, copyright and domain name.


[2]See more: “Infringement of Intellectual Property Rights in Vietnamand the Current Situation for Dealing therewith”: http://bross.vn/newsletter/ip-news-update/Infringement-of-Intellectual-Property-Rights-in-Vietnam--and-the-Current-Situation-for-Dealing-therewith


[3] See more: “6 Key Features of Liability for Non-contractual Damages Compensation in Vietnam due to Infringement of Intellectual Property Rights Compared to Liability for Non-contractual Damages in the Civil Code”: http://bross.vn/newsletter/ip-news-update/6-Key-Features-of-Liability-for-Noncontractual-Damages-Compensation-in-Vietnam-due-to-Infringement-of-Intellectual-Property-Rights-Compared-to-Liability-for-Noncontractual-Damages-in-the-Civil-Code-1545

[4]See more (in Vietnamese only) “Tranh bị “chôm”: tòa xử, tòa không”: https://plo.vn/phap-luat/tranh-bi-chom-toa-xu-toa-khong-608576.html

[5] See Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991): https://cyber.harvard.edu/people/tfisher/1991%20Feist.pdf

[6]The US’s legal viewpoint about originality is opposite with UK; in particular, UK accepts originality standard bases on the “sweat of the brow” doctrine, means that a work shall be protected by copyright if it meets the labor and skills conditions. See more:https://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/valr13&div=9&id=&page=and https://en.wikipedia.org/wiki/Cummins_v_Bond

[7]The five phases regarding the data capture process comprise:

First, the relevant publications are registered manually by Infopaq employees in an electronic registration database.

Secondly, once the spines are cut off the publications so that all the pages consist of loose sheets, the publications are scanned. The section to be scanned is selected from the registration database before the publication is put into the scanner. Scanning allows a TIFF (‘Tagged Image File Format’) file to be created for each page of the publication. When scanning is completed, the TIFF file is transferred to an OCR (‘Optical Character Recognition’) server.

Thirdly, the OCR server translates the TIFF file into data that can be processed digitally. During that process, the image of each letter is translated into a character code which tells the computer what type of letter it is. For instance, the image of the letters ‘TDC’ is translated into something the computer can treat as the letters ‘TDC’ and put in a text format which can be recognized by the computer’s system. These data are saved as a text file which can be understood by any text processing program. The OCR process is completed by deleting the TIFF file.

Fourthly, the text file is processed to find a search word defined beforehand. Each time a match for a search word is found, data is generated giving the publication, section and page number on which the match was found, together with a value expressed as a percentage between 0 and 100 indicating how far into the text it is to be found, in order to make it easier to read the article. Also in order to make it easier to find the search word when reading the article, the five words which come before and after the search word are captured (‘extract of 11 words’). At the end of the process the text file is deleted.

Fifthly, at the end of the data capture process a cover sheet is printed out in respect of all the pages where the relevant search word was found.

[8] The EJC held that an act of reproduction may be exempted from the reproduction right subject to a copyright infringement claim only if it fulfils five conditions: (1) the act is temporary; (2) it is transient or incidental; (3) it is an integral and essential part of a technological process; (4) the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary of a lawful use of a work or protected subject-matter; and (5) the act has no independent economic significance.

[9] Source: Case-5/08, Infopaq International A/S v DanskeDagbladesForening:https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008CJ0005:EN:HTML


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