A non-English native speaker's perspective on puns (and copyright)

Try and find the only non-native speaker in the theatre

Non-English native speakers are always told that when the day on which they are able to understand puns finally comes, they can assume two things:

(1) at last they have grasped the real essence of English humour, and

(2) from now on they can regard themselves as fluent English speakers.

Transferring this ontological truth into the elusive world of copyright, it can be said that understanding whether puns enjoy copyright protection can prove even more challenging than understanding puns themselves.

Earlier this week, Jeremy published a post/competition, seeking readers' opinion as to whether puns may be protected by copyright. He observed that, following the 2009 decision of the Court of Justice of the European Union (CJEU) in Case C-5/08 Infopaq, the notion that a pun might, in and of itself, be sufficiently a work of the author's own intellectual creation to attract copyright in the EU is by no means far-fetched. 

According to IPKat reader Chris Pratt (Waterfront Solicitors), although in principle puns may attract copyright protection, this is still to be appreciated from a national perspective, as the decision in Infopaq did not address the issue of subsistence of copyright. As a result, the test for originality of literary works (other than computer programs and databases) in the UK when considering subsistence of copyright remains that of sufficient ‘skill, labour and judgment'. 

The topic of this Kat's PhD thesis was indeed the process of de facto copyright harmonisation that the CJEU seems currently and indefatigably pursuing in relation to, among other things, the notion of originality. 

Contrary to Chris's opinion - and also Proudman J's that "the test of quality has been re-stated but for present purposes not significantly altered by Infopaq", if one looks at Infopq and its progeny (in particular Case C-393/09 Bezpečnostní softwarová asociace, Joined Cases C-403/08 and C-429/08 FAPL, Case C-145/10 Painer, and Case C-604/10 Football Dataco), it can be said that, not only has the CJEU harmonised issues pertaining to the subsistence of copyright, but has probably done so by adopting an understanding of originality which is different from the traditional UK ‘skill, labour and judgement’ test.

Not being able to understand a pun
is not necessarily the worst thing
that can happen to you

The 'author's own intellectual creation' standard (which is to be found in the Software, Database and Term Directive as regards, respectively, computer programs, databases and photographs) has been adopted by the CJEU as the general EU notion of originality, and is to be understood as involving ‘creative freedom’ (FAPL), a ‘personal touch’ (Painer) and ‘free and creative choices’ (Football Dataco). 

Probably, the strongest evidence which supports the conclusion that EU understanding of originality is different from the traditional UK notion can be found in the Opinion of Advocate General Mengozzi in Football Dataco, in particular the part in which he addressed the question as to whether the originality standard set out in Infopaq ought to be read as being different (stricter) to the traditionally loose originality standard of ‘significant labour and skill’. 

According to AG Mengozzi, the answer to such a question ought to be affirmative, in that:

copyright protection is conditional upon the database being characterised by a ‘creative’ aspect, and it is not sufficient that the creation of the database required labour and skill.

In particular, the AG indicated that the expression ‘intellectual creation’ adopted by the Database Directive echoes a formula which is typical of continental copyright laws and sets a higher threshold to protection than what is under UK copyright. Indeed, it was felt that

a work is an intellectual creation if it reflects the personality of its author, which is the case if the author was able to make free and creative choices in the production of the work … [T]he necessary originality will be absent if the features of a work are predetermined by its technical function.

This finding is not limited to the sole subject-matter of databases. Albeit that AG Mengozzi referred expressly to the originality standard under the sole Database Directive, it would be parochial to argue that his opinion was limited to this. This is made clear by the fact that, in explaining what meaning ‘intellectual creation’ ought to be given, he referred to judgments concerning not to the Database Directive, but the InfoSoc Directive.

This said, and going back to the question as to whether puns are protectable subject-matter, what could the answer possibly be?

In principle, this Kat would respond that ‘yes, puns can enjoy copyright protection’. In practice, however, it may be difficult to find a pun which displays the necessary amount of originality, especially if this is to be intended as the result of ‘free and creative choices’. By definition, puns are not that free, as they are jokes exploiting the different possible meanings of a word or the fact that there are words that sound alike but have different meanings.