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Originality concept in copyright protection

This week we canvass the nature and scope of the originality concept in copyright protection with respect to translation, adaptations and compilations of data.

Column by Richard Pasipanodya

Copyright protects the expression given to ideas and not the ideas themselves. Therefore to qualify for protection the subject matter must be possessed of originality of expression of the ideas, regardless of merit of expression thereof. The quantity of the subject matter also is irrelevant. So too is its derivation utility value.

Rights accruing
Arising from copyright protection are the exclusive monopolistic rights to reproduce the work in manner or form; translate the work into different languages; make adaptations; perform in public as is the case with dramatic, dramatico-musical and musical works, perform in public as in literary works; communicate to the public as in performance of the works; distribute (sell) the works to the public, and use the works as a basis for creating audiovisual works.

Originality concept
This is a concept which has been invoked by various jurisdictions with varying degrees in jurisprudential congruence. Simply stated, copyright law is concerned with the protection of the author’s skill, labour, effort, time and money in producing a tangible product. In other words the author should have conceived the manner and form through which they can express the underlying ideas.

The expression must emanate or originate from their creative faculty or intellect. Originality does not imply that the expression reflects new or inventive thought but merely that it is the author, through his/her creative ingenuity who has come up with a unique expression.

Catch points on originality
Originality is adjudged by looking at the work as a whole, not merely at its component parts, by which assessment it must not be copied but belong to the owner as the source.

However, there are instances where originality may be held to exist in derivative works such as translations, adaptations or mosaicked works. A work maybe made up of a number of components which in themselves are eligible for copyright in combination with non-copyrightable components but still possess originality through choice, selection and arrangement thereof.

As such, the arrangement of the constituent materials to the finished work is a very important aspect in the determination of originality.

Derivative works
This is mostly witnessed in dramatico-musical works, as well as drama whereby a three-dimensional copy of a two-dimension work is produced. So too is the case where a two-dimensional work is produced from a three-dimensional piece of work. This is the case with plays derived from a literacy work and vice-versa. Though the conduct prima facie constitutes an infringement act, the final product is considered as original by virtue of this thought process and form given to it.

Translation of works
This entails the verbatim copying of a copyrightable work into another language. Translation of works is most rife with literary works.

The resultant work is said to be possessive of originality where the translation uses much skill and judgement as that of the author of the source, work though of a different type this time around. It does not matter really whether the resultant work is of a mediocre version of the source; work for the merit of the work is irrelevant in adjudging a work being eligible for copyright.

For a translation to be protected as an original work it must not be constituted as a verbatim translation of the source works lock, stock and barrel. Rather, it is the originality embodied in the resultant work such as the addition of subtleties and other creative ingredients into the translated work.

Again, though this is apparently an infringement act, the translator is accorded copyright protection on the same footing as that of the author of the source work, owing to the mental effort they would have applied and invested in it.

Adaptation of works
Adaptation entails converting a piece of copyrightable work from one form into another, eg, turning our celebrated author-cum-story teller Stephen Chifunyise’s literary text into a dramatic or film version of work without his consent.

Apparently this would constitute an act of infringement for which Chifunyise would be entitled to institute court proceedings in search of appropriate remedies.

However, so long as the adaptor uses sufficient skills, labour and effort, then he/she would be accorded copyright protection over the resultant works as possessing the requisite originality requirement. Adaptation would also take part where the adaptor prizes, amplifies or adds to the source-works. The issue here is one of substantiality of the copying involved.

Compilation of data
This is a new phenomenon to copyrightable subject matter which was introduced by Article 10.2 of the Agreement on Trade Related Aspect of Intellectual Property Rights (TRIPS, Agreement.

It reads: “Compilation of data or other material, whether in machine readable or other form, which by reason of their selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.”

This provision was introduced in response to the increased data compilation in the developed world, more so in the US since the early 1990s.

The TRIPS Agreement only served to put the matter to rest by the phrase …. “Which by reason of their selection or arrangement of their contents constitute intellectual creations” …
In other words, the data or materials themselves do not qualify for copyright protection.

Pasipanodya is an IP consultant who writes in his own capacity. Feedback on: Mobile +263 775 053 007 or e-mail henripasi@gmail.com

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