What is originality in copyright?

Words by Dr Martin Douglas Hendry
 
 

What is originality in copyright?

To be protected by copyright, works must be “original” or be seen to have “originality”.

In the legal sense, a work being “original” or having “originality” refers to the notion of independent creation. This means that the work is not copied or comprised from another pre-existing work.

In this way, if a work is “based on” a previously existing copyright work, or contains other copyright works within it (e.g. music containing samples, or photographic artwork recreating or combining other photos) this would not be seen as original.

It is important to distinguish that works can be “original” in this sense, but not necessarily novel. A new work based on a similar underlying premise to one that already exists will still attract copyright status, for example.

Translations of novels and books into different languages is another exception where new copyright work can be made. This also is the same premise that allows for new copyright works to be brought into existence when adaptations of books are made into films. Note that doing so would require permission from the copyright holder for the work it is based on.

Creativity is also seen as an important factor in the originality of copyrighted works. This means that the creator of the work should have demonstrated some element of creativity in the creation of the new original. The threshold to which “creativity” is determined within a work can vary in different jurisdictions.

In many ways originality can be considered a spectrum – and the extent to which a piece is determined as original can play into how disputes are resolved when copying is alleged.

Learn more about the things that copyright protects here. If you are a creator and would like some assistance in developing a copyright regime for your creative outputs, or would like some assistance with a copyright dispute get in touch with our team today.

How to ensure that new works are "original"

There are a few key things that creators can do to ensure that their work is original in terms of UK copyright law.

Records of when the work was created, how it was created, and what materials were used in its creation should be kept.

In particular, it is important that this documentation includes an outline of how work is created and whether any existing copyright material comes into play.

Within certain industries, it may be easy to create work which may be similar to something that already exists (e.g. when writing music or designing greeting cards), and as such documentation of where new ideas and creative elements have come from is important.

Thirdly, should the works be based around preexisting works, (i.e. inspired by or otherwise) this should be noted in documentation surrounding the creation of the work - here permission and consent should be secured which can often require a royalty or licensing agreement.

Ambient influence

In certain circumstances, creators may be unconsciously influenced by others' copyright work. They may be influential in the field, or an ambient presence more generally.

For a copyright infringement claim to be brought, clear awareness of prior work, and the likelihood of copying needs to be proven by the Claimant.

If you are operating in a field where certain operators are prominent to the point where their works may be implicitly influential - it is important to ensure that you are aware of this and mitigate any influence their work has over yours.

As above, where work is closely derivative you may wish to seek permission or legal arrangement with the copyright owner to ensure that you are able to continue with the work.

There are, however some exemptions for the use of existing copyright works in new works. These are as follows.

Exemptions to use of copyright works and "fair use"

There are a number of exemptions in UK copyright law for the use of copyright works in a new work. These include the following:

• where the work is reproduced for the purpose of criticism or review
• where the work is reproduced for the purpose of quotation
• where the work is included in a broadcast or cable programme
• where the work is included in an educational broadcast
• where the work is included in a cinematograph film or sound recording
• where the work is reproduced for the purpose of judicial proceedings
• where the work is reproduced for the purpose of parliamentary or other royal commission proceedings

In the UK, fair use is a defence to copyright infringement which allows limited use of copyrighted material without the copyright owner's permission. The use must be fair and must not interfere with the copyright owner's rights.

There are a number of factors that are considered when determining whether a use is fair, including the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market for or value of the copyrighted work.

In general, using a copyrighted work for the purpose of criticism, commentary, news reporting, teaching, scholarship, or research is more likely to be considered fair use than using it for commercial purposes. Additionally, using a small portion of a work is more likely to be considered fair use than using a large portion.

Ultimately, whether a particular use is fair use will depend on the facts and circumstances of each individual case.

Conclusion

If you work in an industry where the creation of copyright works is key to your business (whether that's writing, artwork, photography, video, music, or more...) it is important to be aware of the concept of originality in your work.

By ensuring that your work is original and that you are limiting the influence of preexisting copyright work in yours, you not only are more likely to avoid a copyright claim being made against you - but also that your work is valuable and unique.

The latter ensures that should anyone begin to copy you you are in the best-placed position to assert your copyright, making sure that no one can copy what makes you unique.

If you need any help with copyright or ensuring that your work original in the legal sense, contact our team for support.

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Disclaimer: This FAQ should not be construed as legal advice on any specific facts. The contents are intended for general informational purposes only. You are urged to consult your own solicitor on any specific legal questions you may have.