Re-Defining Copyright Originality Test

Abstract

Viewing copyright works more from the “literary work” perspective. This article answers the question whether a test as one requiring creativity (on the author’s part) strictly, and one requiring mere labour is sufficient to advance copyright policies. The article criticizes the creativity test (the renowned US Feist decision especially) for “shutting out” the sweat of the brow test. The need for criticizing “sweat of the brow” was unnecessary as it is a low standard – and does not agitate the applicability of the “creativity” test. In contrast, it is the “creativity” test that suggests a departure and sanction of the “sweat of the brow” test. It became clear from the research this article focused on that both tests partially foster copyright policies. This partial effectiveness and ineffectiveness of the two tests led the writer to propose a new copyright “originality” test. A test that could be reviewed by the legislature in drafting the originality test for copyright (futuristically) and “ought” to be employed by jurists in determining copyright subsistence in works. This, in fact is the addition/contribution to knowledge made by the article. The article presents these issues as highlighted by examining the laws in the EU (examining the EU parliament’s legislation on copyrights), UK, US, Canada, Australia and other continental legal systems.