An explanation about how the concept of originality works in copyright works
In order to attain copyright protection, creative works need to original, but what does this mean exactly? Our quick answer tells all.
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.
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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 originality of copyright 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.
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