The concept of originality within the traditional English Copyright & the French 'Droit d'auteur' opposition

Résumé du document

Originality is a long-established and fundamental condition for the protection of intellectual work in France and England. However, the Court of Cassation and the House of Lords have quite a different vision of this concept.
Indeed, the French courts consider that the originality of a work is established when it bears the 'imprint of the personality of its author'. English judges distinguish the originality of a work by more specific criteria: first, the work must not have been copied, and secondly, the author must have invested labor, skill and some effort in achieving it.

The doctrine has tended to oppose in a brutal way the 'droit d'auteur' of civil law countries and the 'copyright' of common law countries. Today, despite some apparent differences in practice, this legal gap is fading considerably.

Originality, pre-requisite for the protection of intellectual work in both systems, is at the heart of this debate. Indeed, the French jurists strongly criticize the English notion of 'originality' as being too permissive. It is easy to reach this conclusion when we focus on definitions given by the courts. Yet, when we study in detail the condition of originality, these differences seem no longer obvious.

Extraits

[...] 1st, November 13, 1973). This concept may seem very uncertain for English jurists, but the Court of Cassation took a necessarily fuzzy position because each author has his own personality and originality vary according to each work. In order to precise the notion, the doctrine opposes it to the "banality" and considers that it "oscillates between merit and novelty”. This notion is necessarily abstract and seems to be applied more and more widely. For example, the decision "Paradise" (C. Cass. Civ. [...]

[...] Points of similarity: subject of originality and indifference of the work quality If there is a point about which the French and English courts seem in perfect agreement, it is concerning the subject of originality and the dichotomy "idea / expression". Indeed, it is easily accepted on both sides of the Channel that the "droit d'auteur" and the copyright does not protect ideas but their expression. Thus, "the CPI does not protect ideas but only the original form in which they are presented" (Civ 1ère, May 25, 1992). The same rule has been found in England, and reaffirmed on several occasions (Designers Guild v. Russell Williams, 2000). Also, original works are protected in France and England, whatever their quality. [...]

[...] In practice, it appears that the threshold of originality required by English law is much lower than what is required by the French courts. Indeed, section 1 of the CDPA provides that "Copyright is a property right which subsists ( . ) in the following descriptions of work: original literary, dramatic, musical or artistic works, sound recordings, films ( The legislator proceeds by an exhaustive enumeration of protected works, and distinguishes the works of first category, which must be original works, from a second category, the "entrepreneurial works" which are protected "unless they are directly copied a previous" work of the same kind (Section 5A 5B and 8 CDPA). [...]

[...] Indeed, judges do not want to decide what is "good", or aesthetic, and what is not since they have no competence to do so. But English judges have used, on a case by case basis, additional criteria relating to the quality of the work. Indeed, in the case Exxon v. Exxon the judges said that a literary work should provide "information, instruction or pleasure”. Thus, the traditional French criticism concerning the English extensive protection of works based only on the concept of labour is no longer justified. It appears that many other criteria are taken into account. [...]

[...] Moreover, concerning the meaning of "originality", there is no clarification in the CDPA. Consequently, the House of Lords had to define it. First, in University of London Press v. Tutotial University Press in 1916, the court held that originality does not mean that the work must be an expression of individual thought. The work must not be copied from another work, and must come from its author”. Then, in a case in 1964, Ladbroke v. William Hill, the court defines more precisely the concept of originality: in order to be considered original, a work must emanate from the author, and a degree of "labour, skill or judgment" should have been made during the creation of the work. [...]