Monday 30 January 2012

Originality or author's own intellectual creation? What is the legal test for copyright subsistence in photographs?

Is this the red bus that sparked
a thousand copyright debates?
One of the many insightful comments in response to the Art & Artifice debate surrounding the "Red Bus" decision came from Francis Davey.

He wrote in response to my musings regarding the current test for copyright subsistence in photographs:

Does Painer apply? Painer was considering the "own intellectual creation" standard for European Law, but common law protection is, arguably, lower (I'd say - almost indisputably).

Surely recital 16/article 6 of 2006/116/EC preserved the common law level of protection for "uncreative" photographs? The 1988 was not, and could not, be amended to raise that level of protection by a regulations made under the 1972 Act, so the law must, presumably, be the common law. Unless some new, countervailing, principle exists that has never been properly articulated.
My understanding was that there are not two systems that run in parallel for assessing whether a photograph has artistic copyright and that following Infopaq, which was confirmed in Painer, the correct test is now "author's own intellectual creation" rather than the common law approach of originality. However, lacking complete confidence in my convictions, I deferred to a higher authority, namely Dr Justine Pila of Oxford University. She, diplomatically, replied as follows:

I agree with you both.

1. Is the common law originality standard lower than the EU ("author's own intellectual creation") standard?

*If* the common law standard requires "skill and labour" only, and *if* the EU standard requires creativity (as per Floyd J and AG Mengozzi in Football Dataco) then *in principle* yes - and this certainly was the view of AG Mengozzi in that case ("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").

2. Does the Term Directive permit Member States to confer copyright protection on photographs which satisfy the common law originality standard but not the EU standard?

I think it does. Article 6 of the Term Directive requires that photographs satisfying the EU standard be protected as literary or artistic works within the meaning of Berne Art 2 - ie, by lit/artistic copyright - without the imposition of any other criteria. And it expressly permits [Member States] to "provide for the protection of other photographs", ie, photographs not satisfying the EU standard. So the only question is whether UK law still recognises the sufficiency of the common law originality standard with respect to photographs.

3. Does UK law recognise photographic copyright in the absence of "creativity"?

I think it does, consistent with (2001 Ch).

4. Does it follow that UK copyright only subsists in photographs if they are creative, or that the UK and European tests of photographic copyright differ?

No, I don't think so, because I don't think that Painer requires creativity for photographic copyright. Rather, it requires (a) that the subject matter of a photograph leaves scope for “sufficient formative freedom”, and (b) that the photographer exploit that freedom so as to leave his “mark” on the resulting work (ie, the photograph). (And it held that in the case of a photographic portrait, there is sufficient formative freedom, and thus the possibility of copyright, as "the photographer can determine, among other things, the angle, the position and the facial expression of the person portrayed, the background, the sharpness, and the light/lighting.") In my view this is perfectly consistent with the UK approach as adopted in, where the court held that UK copyright will always subsist in a photograph of a single, static non-spherical 3-d object (eg, antiques) on the basis of the judgement involved in positioning the object, determining the angle at which it is to be taken, and determining the lighting and focus.

So I agree with you, that the European and UK tests of photographic copyright are the same, and conform with that adopted in Painer. The critical question in any particular case is whether the subject matter leaves scope for “sufficient formative freedom” which the photographer exploits so as to leave his “mark” on the resulting work. This test seems better captured by the "author's own intellectual creation" formulation than the "skill and labour" one; though in fact UK courts have often expressed the common law originality standard in terms of "skill, labour and judgement", which is arguably not different from the European "author's own intellectual creation" test. And I personally doubt that the EU test requires creativity - it's almost identical to the Canadian test, which was formulated partly so as to underline that creativity is *not* required. (That at least is my memory.)

Do you agree? Where is the line in your jurisdiction? Where do you think the line for copyright subsistence should lie? Please join in the debate using the comments section below.

Note: no weblinks were included in the correspondence.  They have been included in this blog for readers' ease of reference.


Francis Davey said...

I'm flattered by having a comment described as "insightful".

One difficulty in this discussion is that we don't know - in the sense that the question has not been well addressed by authority - what "original" means in the context of photographs.

For example: one object of protection might be "right place, right time" accidental creation, whereby someone unskilled (perhaps even a simian...) takes a photograph. It has always been thought that would count as an "original" photograph, but the question has never been precisely tested.

One can think of policy arguments in favour of rewarding photographers who incurred expense and took risks obtaining a photograph. Exactly those arguments were deployed in the debates on the Fine Arts Copyright Bill when copyright protection for photographs was first suggested (a sample follows):

THE SOLICITOR GENERAL observed, that although, strictly and technically speaking, a photograph was not in one sense to be treated as a work of fine art, yet very considerable expense was frequently incurred in obtaining good photographs. Persons had gone to foreign countries—to the Crimea, Syria, and Egypt—for the purpose of obtaining a valuable series of photographs, and bad thus entailed upon themselves a large expenditure of time, labour, and money. Was it just that the moment they returned home other persons should be allowed, by obtaining negatives from their positives, to enrich themselves at their expense? He could not consent to exclude photographs from the Bill.

MR. HENNESSY suggested, that at all events photographic portraits should be excluded. A visit to the Holy Land was not necessary for taking the portrait of the hon. and learned Gentleman, and yet it would be hard to prevent the public from obtaining a copy of his likeness.

But I can't recall of a case where that kind of originality was in issue.

It is quite unusual for courts to reject originality of photographs and, again as far as I can remember, the only clear examples are copies of earlier works such as the photocopy in Reject Shop v Manners.

The question is further compounded by a relatively small number of ECJ cases on the European threshold - we really only have Painer on photographs.

So, I am not absolutely confident that originality as we understood it is the same as "own intellectual creation" as the ECJ is coming to understand it. I am very glad the question is being aired.

Francis Davey said...

In French law, between 1957 and 1985 there was a requirement that photographs had a "caractère artistique ou documentaire".

This is interesting as it demonstrates something of the way French law has evolved in dealing with photographic copyright. It is not (as one might think) a particularly live issue because of the Court of Cassation's view that "en matière de propriété industrielle, la loi qui a vocation à s'appliquer est celle qui est en vigueur à la date de l'acte qui provoque la mise en oeuvre de la protection légale". In other words, what matters is the law in force at the time of the action for infringement.

As I understand it - and I have not read as widely as I would like - the threshold in France is "originalité", which is usually understood as being available at 3 times: (1) in the preparation of the scene; (2) in the choice of angle etc in taking the photograph and (3) in the post-processing of the photograph such as by colourisation.

It would be interesting to analyse some of the cases to see when (if ever) French and English law have come to different conclusions.

Rosie Burbidge said...

For recent commentary on the protection of photographs under French copyright law, see the 1709 blog here:

Rob J said...

I believe that the Intellectual Creation test is in fact doing the opposite of harmonising the standard across Europe. By using a standard which has so much uncertainty the originality standard will now be less certain than ever before across Europe.

The traditional common law standard brings with it much greater certainty and thus is far more advantageous!