Copyright only subsists in original work. But what is original in copyright law does not include novelty or unique thought. So it is not the idea that has be original or novel, it is skill and labour that went into that material that makes it original. Therefore the courts to determine originality look at things like the level of expertise, the amount of time, labour and effort that went into creating the material. It is ultimately a value judgment that is made by our courts as to the originality of the work, taking into account all the facts and circumstances of a case.
The originality requirement in South Africa
Section 2(1) of the Copyright Act specifies that certain works will be eligible for copyright protection if they are original. This requirement of originality originates from s1(1) of 1911 Imperial Copyright Act which stated that only original works would be eligible for copyright protection. There are a few principles that are considered when determining originality of a work:
1. The work does not have to be original or novel – copyright is the protection of the expression of ideas and thoughts and offers no protection for ideas.
2. The originality of a work requires investigation into the skill and labour it took by the author himself to create that work.
3. South African copyright law requires a low threshold of originality and the amount of skill, time and labour which is sufficient to classify a work as original is dependent on the facts and circumstances of each case – this makes the test for originality a subjective one in which the courts has to make a value judment.
What does this mean for educators?
It means that even if two people use the same sources for information, each person’s expression of the knowledge acquired from those sources may be subject to copyright. Therefore, for example, if two academics read the exact same resources on the History of Economics and both created textbooks – both academics will have copyright in their respective books because of their labour and/or skill expended to create those books. The other implication of the originality requirement relates to infringement of copyright. Copying another person’s work does not require any skill or labour and therefore any material that educator copies from another source will not be original and therefore not copyrightable – it will be infringement.
In the well known Desktop Marketing Pty Ltd v Telstra Corporation Limited case, the judge states:
This case is concerned with the element of “originality” in respect of compilations of factual information. Originality is not only an essential element if a work is to be protected by copyright (an “original literary, dramatic, musical or artistic work”; cf subss 32(1) and (2) of the Act); it is also an important aspect of infringement. The reason is that the notion of a “substantial part” of a work, reproduction of which, without licence of the copyright owner, is a form of infringement of the copyright in the work (cf subss 31(1) and (2) and 36(1) and par 14(1)(a) of the Act), is regarded as referring, generally speaking, to the original aspects or features of the work.
Therefore, if you are an educator looking to develop your own materials by using copyrighted sources or wish to use existing materials that are under copyright protection, you need to understand the originality requirement so as to prevent infringement on your part. More originality means less infringement.
What have the SA courts deemed appropriate as determinants or aspects of skill and labour?
See below for the spectrum of originality and infringement:
Essentially you want to move towards the darker green ‘original’ place and away from the darker red ‘infringement’ markers. If you use others work to inform your new materials - put your stamp of creativity on it – express yourself differently and creatively and aim to add to the existing knowledge or expression thereof in an original and value added manner.