LAW
Copyright: Not Every Similar Work is an Infringement
How many times have you heard someone say something and thought, “I was just thinking the same thing”? Or heard a story and thought, “I know someone who had the same experience”. These thoughts and experiences influence creativity. We all drink from the same fountain – life. Whether the experience is direct or indirect, except our exploitation infringes on the personal and/or property rights of others, we are free to use those experiences as inspiration.
Nigerian Copyright Law protects original works and different categories of creative works enjoy different protections. Literary works cannot be reproduced, published, performed in public, edited, translated, adapted for film, or communicated to the public without the authorisation of the author of the work. Doing any of these things without authorisation from the author of the work is an infringement of their copyright. A work need not be registered to enjoy copyright protection, however, registration helps to establish the existence of the expression of an idea at a certain date.
Copyright protects original works but it is key to bear in mind that originality and novelty are not the same thing. For a creation to be protected under patent law, for instance, it must be novel, there must be nothing else like it already registered. Copyright law however has no such restrictions. It means that a hundred stories can exist with the same theme and they will enjoy copyright protection as long as they are the original work of the creator and not copied from some other author’s work.
One of the earliest tests of the concept of originality in copyright comes from the case of University Press Ltd v. University Tutorial Press Ltd (1916) 2 Ch. 601. This case involved examination questions papers created by two mathematics professors. The questions were coincidentally similar and one party claimed copyright infringement. On the facts of the case it, was established that both papers had been created independently of each other. In his judgment, Peterson J., set out the test for originality, saying, “The word ‘original’ does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of ‘literary work,’ with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work – that it should originate from the author. …If an author, for the purposes of copyright, must not draw on the stock of knowledge which is common to himself and others who are students of the same branch of learning, only those historians who discovered fresh historical facts could acquire copyright for their works.”
We all draw from a common stock of knowledge, life and our experience of life. How we interpret, process and express these influences is what determines originality. In dealing with similar stories, the task for an arbiter in a claim of infringement is to distinguish between coincidental similarities and copying/reproduction of original work. This was addressed in the leading English case of Francis Day & Hunter Ltd v Bron [1963] Ch 587. The case involved two songs with similar melodies, “In a little Spanish Town” and “Why.” The issue was whether the similarities in both songs were a result of copying or just coincidental. The Court of Appeal held that two elements must be present for infringement proceedings to succeed:
- sufficient objective similarity between the copyright work and the alleged infringing work (a matter of quantity and quality); and
- evidence that the copyright work is the source of the infringing work – a causal link.
The court found no evidence that there was a causal connection between the two songs.
These two pre-requisites of similarity and causal connection have been accepted in Nigerian jurisprudence.
A more recent UK case which explores the idea/expression dichotomy in copyright is Baigent v Random House [2007] EWCA Civ 247. The claim in this case was that Dan Brown’s novel, “The Da Vinci Code”, published in 2003, was a copy of an earlier literary work. Although Brown had some interaction with the earlier work, “The Holy Blood and the Holy Grail” (HBHG), published in 1982. The claim failed on two grounds: the idea/expression dichotomy, and the degree of copying was found not to be substantial enough. Lloyd, LJ stated, “The literary copyright exists in HBHG by reason of the skill and labour expended by the Claimants in the original composition and production of it and the original manner or form of expression of the results of their research. Original expression includes not only the language in which the work is composed but also the original selection, arrangement and compilation of the raw research material. It does not, however, extend to clothing information, facts, ideas, theories and themes with exclusive property rights, so as to enable the Claimants to monopolise historical research or knowledge and prevent the legitimate use of historical and biographical material, theories propounded, general arguments deployed, or general hypotheses suggested (whether they are sound or not) or general themes written about.”
An educating read, Kaine. Please though, what’s the margin between the inspiration and infringement… like in the Dan Brown case, was there a specific quota or percentage that when reached would have made his work a copy of HBHG?
The outcome of every case will depend on its specific facts. It is not just the quantity, but the quality also of what is copied that will be assessed.