Subsistence of copyright in puns: a follow-up
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| Copyright laws in the EU: always in harmony, never out of step ... |
The Kats' fullest and best-reasoned response so far is an email from Chris Pratt (Waterfront solicitors), which is reproduced below [and before you ask, yes, it's with his permission -- if indeed permission is needed ...]. Writes Chris:
"I comment from an English law perspective.This Kat is not sure that he agrees that "skill, labour and judgment" -- assuming that it is indeed still the UK test [who dares assume anything in this area of law these days?] -- is necessarily a lower threshold for subsistence of copyright than the "author's own intellectual creation" test, and he suspects that if the level of the latter plumbs the same depths as the concept of "distinctive character" in EU trade mark law, even a smidgeon's worth of intellectual creation might find itself vested with protection for death-plus-seventy.
I don’t disagree with your conclusion that in theory a pun may attract copyright protection in the UK. It’s the route that has been taken that troubles me (it’s also the reasoning used by the High Court, and approved by the Court of Appeal, in the Meltwater case [on which see earlier Katposts here, here and here, plus any number of posts on the 1709 Blog], which is somewhat more problematic).
Case C-5/08 Infopaq was a CJEU decision based on the right of reproduction. This right has been harmonised within the EU under the InfoSoc Directive. The question of subsistence of copyright for literary works has not been harmonised within the EU (other than for computer programs and databases). As you can see, there is a fundamental problem in trying to apply the Infopaq decision to pure questions of subsistence of unharmonised copyright works. The test for originality of literary works (other than computer programs and databases) in the UK when considering subsistence of copyright remains the “skill, labour and judgment” test.
In practice, the application of either test is unlikely to result in a different outcome in the vast majority of cases. However, it is said that “skill, labour and judgment” is a lower threshold than the EU “author’s own intellectual creation” test of originality, and would allow pure “sweat-of-the-brow” works to attract copyright protection (TV listings are a commonly cited example).
Unfortunately, the High Court in Meltwater (as approved by the Court of Appeal) applied the Infopaq decision to the question of subsistence of copyright in newspaper headlines as literary works. I don’t disagree with the conclusion that authors of certain newspaper headlines may have exerted sufficient skill, labour and judgment so that they are protected as literary works. And applying the EU originality test is not likely to make a difference to that conclusion, since they’re not sweat-of-the-brow type works.
Similarly, when considering puns, I can see that authors of certain puns are likely to have exerted sufficient skill, labour and judgment so they attract copyright protection (that conclusion being unaffected by the application of the EU originality test). But the real issue here is one of legal reasoning. The Meltwater decisions made the error of applying Infopaq to subsistence of copyright. This error would not have affected the conclusion reached, so I can perhaps see why the issue wasn’t pressed too hard on appeal. Unfortunately, though, it does look like this flawed reasoning is here to stay (and it is regrettable that it won’t be raised before the United Kingdom Supreme Court).".
What do readers think?
