Week 4

Question 1

What is originality ?

Answer 1

mostly focus on the originality of the work.

The result of human creative process + individual character PL

The result of individual creative process (DE)

The result of human mind’s creative process (FR)

Question 2

The Invention of Copyright:

Answer 2

Copyright is founded on the concept of the unique individual who creates something original and is entitled to reap a profit from those labors. Until recently, the dominant modes of aesthetic thinking have shared the romantic and individualistic assumptions inscribed in copyright. But these assumptions obscure important truths about the processes of cultural production.

Question 3

What is subjective approach?

Answer 3

individuality
moral rights
romantic authorship

Question 4

What is objective approach?

Answer 4

Skill and labour
Sweat of the brow
economic rights

Question 5

Case Interlego v Tyco

Answer 5

1

Question 6

1

Answer 6

there must be a relation of creation between the work and the author whatever this act of creation (sometimes only presentation) means’

Question 7

Case Bleistein v Donaldson

Answer 7

It would be dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of the pectoral illustrations. The work is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting and a very modest grade of art has it something irreducible, which is one man’s alone. That something he may copyright unless there is a restriction in the words of the act.

Question 8

Case Rogers v Koons

Answer 8

1

Question 9

What requirement comes after the fixation requirement?

Answer 9

Originality requirement.

Question 10

What does the originality requirement mean within the UK and USA?

Answer 10

It is mostly focused on the definition of original works which is put in the for example copyright design and patent act from the 1988.

Question 11

What is the meaning of the originality requirement in continental Europe approach?

Answer 11

As a requirement for protection subject matter it might be the result of human creative process which has also individual character.

Question 12

Who put simply the difference between individuality, creativity and originality?

Answer 12

Mark Rose.

Question 13

How did Mark Rose interpret individuality and creativity?

Answer 13

As a kind of romantic authorship.

Question 14

What is the objective approach of copyright?

Answer 14

The meaning we use for originality requirement in common law countries.

Question 15

With what doctrine was the objective approach of copyright associated with?

Answer 15

With the doctrine of skills and labour and the concept of sweat of the brow.

Question 16

What is the subjective approach of copyright?

Answer 16

The second approach, more focused on the individual stamp of author that work is required to be incorporated rather than the originality itself like in the objective approach.

Question 17

When was presented one of the most extreme variants of the objective approach?

Answer 17

In the decision of English Court in 1916 in the case University of London press vs. University Tutorial press.

Question 18

What did the court held in the case University of London press vs. University Tutorial press?

Answer 18

It held that the copyright act doesn’t require that the expression must be in an original or novel form but the work must not be copied from another work, that it should originate from the author.

Question 19

Who described the purposes of copyright protection?

Answer 19

Paul Goldstein.

Question 20

To what is copyright in its very objective approach reduced to?

Answer 20

To a very simple task to examine who is the author of the work.

Question 21

Where was introduced the alternative interpretation of originality and what is it called?

Answer 21

In the US and it is called the doctrine of Sweat of the borrow.

Question 22

In what decision can be found the classic definition of the doctrine of Sweat of the borrow?

Answer 22

In Jeweller’s circular decision.

Question 23

What is not required according to the doctrine of Sweat of the borrow?

Answer 23

It is not required that the idea is new because an idea is not covered by the copyright at all. The author must have expended skill judgement and labour or selection judgement and experience or even labour, skill and capital in creating the work.

Question 24

What are the two cumulative requirements according to the doctrine of Sweat of the borrow?

Answer 24

• the work must originate from the author

- there must have been a minimum investment by author of skill, judgement or labour.

Question 25

Do both requirements of the doctrine of Sweat of the borrow have to be met at the same time and it which case was it confirmed?

Answer 25

Yes. It was confirmed in the case the Bill Trading vs. Bill Hitch.

Question 26

In what case was some guidance provided?

Answer 26

In Guild vs. Eskander Ltd.

Question 27

What did the court held in the Guild vs. Eskander Ltd case?

Answer 27

A copy which incorporates some minor alterations of a work is no longer protected under copyright.

Question 28

What is the principle stated in Interlego case?

Answer 28

The skill and labour must not be so trivial that it could be characterized as a purely mechanical exercise.

Question 29

What is the biggest flow of the doctrine of Sweat of the borrow?

Answer 29

The only defense to infringement was independent creation. The subsequent compiler was not entitled to take one word of information previously published but rather had to independently work out the matter for himself sous to arrive at the same result from the same common sources of information.

Question 30

In what case was the doctrine of Sweat of the borrow criticized?

Answer 30

In the case of five publications by the Supreme Court in US in 1991.

Question 31

What did the Supreme Court held in the case of five publications in 1991?

Answer 31

It held that the facts contained in existing works may freely be copied, because copyright protects only the elements that owe their origin to compiler- the selection, coordination and arrangement of facts.

Question 32

What is a major concern when it comes to interpretation of originality?

Answer 32

That it may lead to the aesthetic evaluation of work itself.

Question 33

What was the question that Jane Ginsburg asked?

Answer 33

She asked if the work might embodied the author’s persona and then how does it follow from determining the work is him that is also his.

Question 34

What is the most difficult part of the copyright legal system?

Answer 34

To find any nick interpretation of originality.

Question 35

How is the problem of originality solved at the EU level?

Answer 35

There is no sustain like general directed from copyright issue the harmonization is so cold pointed and relate only to very detailed problem of copyright. The originality requirement might have some potential to integrated internal market. In theory, divergent requirements for the level of originality by member states have the potential of posing barriers to intra-community trade. In practice, seems to be no convincing evidence to support this.

Question 36

What is the problem with EU competences in respect to the subject matter of copyright?

Answer 36

The absence of one harmonized definition of what is and shall be protected within copyright realm.

Question 37

What specific subject matter has become the major concern of the European Commission?

Answer 37

Software.

Question 38

Is there a horizontal harmonization of the concept of subject matter and originality requirement adopted by the commission?

Answer 38

No.

Question 39

Which directives regulate the computer program and databases?

Answer 39

The directive from 2009 on the legal protection of computer program and the directive of 1996 under legal protection of database.

Question 40

What do the directive from 2009 and the directive from 1996 stipulate?

Answer 40

They stipulate that work like computer program, databases and photograph are considered to be eligible for copyright protection if they represent the author on intellectual creation.

Question 41

Which five landmark cases did the Court of Justice interpret and elaborate on the precise contours of EU originality standards between 2009 and 2012?

Answer 41

• Infopaq international from 2009
• BSA from 2010
• Premier League Case from 2011
• Eva Maria Painer case from 2011
• Football dataco case from 2012

Question 42

Summarize the precise contour elaborated by the Court of Justice.

Answer 42

• under EU copyright law the required originality standard is the authors on intellectual creation.
• we can conclude that the authors on intellectual creation is present when author can exercise free and creative choices and put their personal stamp on the work.
• it is not wrongful the originality requirement to be made when an expression is determined by technical or functional rule such as when there is only one way to express the idea or the expression predetermine by specific goal or concern by narrow rules that leave no space for free and creative choices.

Question 43

What should copyright reward?

Answer 43

An original expression.

Question 44

What does the Rogers vs. Koons case show?

Answer 44

Some difficulties with the distinction idea expression.