Sweat of the brow
Sweat of the browis acopyrightlaw doctrine.According to this doctrine, anauthorgains rights through simple diligence during the creation of a work, such as a database, or a directory. Substantial creativity or "originality" is not required.
Under a "sweat of the brow" doctrine, the creator of a work, even if it is completely unoriginal, is entitled to have that effort and expense protected; no one else may use such a work without permission, but must instead recreate the work by independent research or effort. The classic example is atelephone directory.In a "sweat of the brow" jurisdiction, such a directory may not be copied, but instead a competitor must independently collect the information to issue a competing directory. The same rule generally applies to databases and lists of facts.
According to the Databases Directive 96/9/EC,member states of the EUare obliged to confer protection known as thedatabase righton non-original databases, that is on those that embody no creativity, but are a consequence of substantial investment (financial, labour etc.).[1]
Etymology
[edit]In a traditionalEnglishidiom,thesweat of one's browrefers to the effort expended in labour, and the value created thereby.[2]The phrase is famously used in English translations ofGenesis 3:19.[3]The law doctrine takes its name from this idiom.
By territory
[edit]United States
[edit]TheUnited Statesrejected this doctrine in the 1991United States Supreme CourtcaseFeist Publications v. Rural Telephone Service;[4]until then it had been upheld in a number of US copyright cases.[5][6]
Under theFeistruling in the US, mere collections of facts are considered unoriginal and thus not protected by copyright, no matter how much work went intocollatingthem. The arrangement and presentation of a collection may be original, but not if it is "simple and obvious" such as a list inalphabeticalorchronologicalorder.
United Kingdom
[edit]Old approach
[edit]An early example of the "sweat of the brow" doctrine in UK law[7]was the leading case ofWalter v Lane(1900) in which reporters took down shorthand notes of a series of speeches given by theEarl of Rosebery,and transcribed them, adding punctuation, corrections and revisions. These were then published as verbatim reports of the speeches inThe Timesnewspaper. The defendant,John Lane,reproduced the speeches in a book, relying heavily without permission onThe Timespublications. The question for the court was whether the reporters could be considered "authors" of the published versions under the terms of theCopyright Act 1842.The House of Lords held that the reporters were indeed "authors", and hence entitled to copyright, on the basis of the skill, effort and time involved in preparing the text for publication.
At the timeWalter v Lanewas decided, UK copyright law contained no explicit notion of "originality". The subsequentCopyright Act 1911added for the first time a specific statutory requirement that, for copyright to subsist in a work, that work must be "original". However, for well over a hundred years UK courts did not adopt a literal reading of that requirement, instead holding that a significant expenditure of skill and labour in the creation of a new work was sufficient.
InUniversity of London Press Ltd v University Tutorial Press Ltd(1916),[8]the question arose as to whether certain mathematics exam papers, consisting of conventional problems presented in a conventional manner, were original literary works in which copyright would subsist. The court held that originality did not mean that the work must be an expression of individual thought, and the fact that the authors drew on a body of knowledge common to mathematicians did not compromise originality. The requirement of originality, it was held, did not require that expression be in an original or novel form. It did, however, require that the work not be copied from another work. It must originate from the author. Consequently, even though there was no creative input, the skill, labour, and judgement of the authors was sufficient to make the papers original literary works.
InCummins v Bond(1927), a psychic in a trance claimed to have written down what spirits told her, through a process ofautomatic writing.In court, she accepted that she was not the creative author of the writing. Nonetheless, the court held that she had exercised sufficient labour and skill in translating and transcribing what the spirits told her, so she had a copyright in the resulting literary work.[9]
New (European) approach
[edit]The 'skill and labour' approach was challenged in 2012 when a case was taken to theEuropean Court of Justicein whichFootball DataCoclaimedcopyright infringementover web sites which were reproducing match schedules from several majorfootballleagues. Football DataCo asserted that these schedules were copyrighted works due to the skill and labour involved in their preparation, and that the company was given exclusive rights to license their reproduction. Based on its interpretation of UK law, the court rejected the notion that skill and labour was enough to grant protection to a work, since "unless the procedures for creating the lists concerned as described by the national court are supplemented by elements reflecting originality in the selection or arrangement of the data contained in those lists, they do not suffice for those lists to be protected by the copyright laid down in the directive".[10]
This European approach has prevailed over the old 'skill and labour' test. In a copyright notice on "digital images, photographs and the internet" last updated in November 2015, the UKIntellectual Property Officestated that digital reproductions ofpublic domainimages are not protected by copyright, arguing that "according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author's own 'intellectual creation'. Given this criterion, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as 'original'."[11]A November 2023Appeal Courtjudgement (THJ v. Sheridan,2023) byLord Justice Arnoldclarified that, in the UK, no new copyright is created in making a photographic reproduction of a two-dimensional public domain artwork.[12][13]
Germany
[edit]Prior to 2021, German law granted ancillary copyrights (Leistungsschutzrecht) due to the effort involved in the production or exploitation of creative works.[14]In 2016, aregional court in Berlinruled that digitized versions of public domain paintings were entitled to new copyrights due to the effort and expertise necessary to create the reproductions. The case was appealed.[15][16]In 2018 a court upheld the decision that the digitized public domain paintings were entitled to new copyrights.[17]In 2021, Germany implemented Article 14 of theDirective on Copyright in the Digital Single Market.Germany's implementation law specified that reproductions of visual works in the public domain are not protected by copyright orrelated rights.[18]
European Union
[edit]In 2019, theEuropean Unionadopted theDirective on Copyright in the Digital Single Market.Article 14 of the directive states that reproductions of works of visual art that are in the public domain cannot be subject to copyright or related rights, unless the reproduction is an original creative work.[19]
Israel
[edit]Israeli law requires that a work exhibit somedegree of originalityin order to be copyrightable. In other words, Israeli law does not subscribe to the "sweat of the brow" doctrine.[20]However, the amount of originality required is minimal, and the transliteration or interpretation of an artifact is covered by copyright.[21]
See also
[edit]- Copyfraud
- Fair use(complement to avoid abuses)
- Lockean Classical liberalism
- Labour theory of value
- Database right
- Sweat equity
- Threshold of originality
References
[edit]- ^EU Richtlinie 96/9/EGArchived2007-06-21 at theWayback Machine(in German)
- ^"Sweat, v. t."Webster's Revised Unabridged Dictionary (1913 ed).ARTFL Project. p. 1457. Archived fromthe originalon 2006-03-03.Retrieved2007-05-30.
- ^"New Living Translation".Tyndale House Publishers, inc. Archived fromthe originalon 2016-04-24.Retrieved2007-05-30.
By the sweat of your brow will you have food to eat
- ^499U.S.340(1991)
- ^Leaffer, Marshall A. (2008) [2005].アメリカ trứ tác 権 pháp[Understanding Copyright Law (4th edition)] (in Japanese). Translated by mục dã (Makino), hòa phu (Kazuo).LexisNexisJapan. p. 94.ISBN978-4-8419-0509-0--Chapter 2 Article 12-B
{{cite book}}:CS1 maint: postscript (link) - ^Sơn bổn (Yamamoto), long tư (Takashi B.) (2008).アメリカ trứ tác 権 pháp の cơ sở tri thức[The Fundamentals of American Copyright Law]. ユニ tri đích sở hữu 権ブックス9 (UNI IP Books 9) (in Japanese) (2 ed.). Thái điền xuất bản (Ohta Books).ISBN978-4-7783-1112-4.
Mễ quốc trứ tác 権 pháp における sang tác tính の khái niệm は, その hậu hạ cấp tài phán sở の thải dụng した ngạch の hãn (sweat of the brow) の lý luận によって nhất thời hỗn loạn した. しかし, ước 90 niên ぶりに liên bang tối cao tài が sang tác tính の khái niệm を luận じた1991 niên のファイスト phán quyết は, thứ のように thuật べて, thượng ký の vân thống đích lý giải を xác nhận した. (translation: The definition of Originality had been disturbed by the sweat of the brow doctrine adopted by lower courts. After almost 90 years from the 1903 Bleistein case, however, the Supreme Court reaffirmed the traditional understanding of the Originality at the Feist case in 1991.)
- ^Gendreau, Ysolde (2009).An Emerging Intellectual Property Paradigm: Perspectives from Canada.Edward Elgar Publishing.pp.151–152.ISBN1847205976.
- ^University of London Press v University Tutorial [1916] 2 Ch 601
- ^William Patry (2005-08-10)."The Patry Copyright Blog: Authorship and Religion".Williampatry.blogspot.gr.Retrieved2013-10-02.
- ^ Wilson, Bill (1 March 2012)."Football match fixture list copyright claim rejected".BBC News.London, United Kingdom.Retrieved2022-01-23.
- ^UK Intellectual Property Office(November 2015)."Copyright Notice: digital images, photographs and the internet"(PDF).Archived fromthe original(PDF)on 1 June 2020.Retrieved3 December2015.
- ^Lord Justice Arnold(20 November 2023),THJ v Sheridan(PDF),Court of Appeal,WikidataQ124044396
- ^Bendor Grosvenor(29 December 2023)."Court of Appeal ruling will prevent UK museums from charging reproduction fees—at last".The Art Newspaper.ISSN0960-6556.WikidataQ124044230.
- ^Nolte, Georg (1 July 2010). "Zur Forderung der Presseverleger nach Einführung eines speziellen Leistungsschutzrechts: Eine kritische Auseinandersetzung".Zeitschrift für Geistiges Eigentum(in German).2(2): 165–195.doi:10.1628/186723710792175149.
- ^Moody, Glyn (23 June 2016)."Digitising public domain images creates a new copyright, rules German court [Updated]".Ars Technica UK.Retrieved5 July2016.
- ^Reiss-Engelhorn Museum (REM) of the City of Mannheim v. Wikimedia Foundation(Landgericht Berlin 2016),Text.
- ^"Bundesgerichtshof zur Veröffentlichung von Fotografien gemeinfreier Kunstwerke"(Press release) (in German). Karlsruhe Germany: Bundesgerichtshof. 2018-12-20.Archivedfrom the original on 2019-06-21.Retrieved2020-01-26.
- ^Germany's Directive 2019/790 Implementation Law
- ^"Final text of the Directive as submitted to the Parliament on 26 March 2019"(PDF).Retrieved26 March2019.
- ^Tempska, Urzula (2002)."'Originality' After the Dead Sea Scrolls Decision: Implications for the American Law of Copyright".Marquette Intellectual Property Law Review6(1): 132.
- ^Elkin-Koren, Niva (2001)."Of Scientific Claims and Proprietary Rights: Lessons from the Dead Sea Scrolls"Archived2015-09-24 at theWayback Machine,Houston Law Review38(2): 458, 460.