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6 December 2023

Originality in copyright – a review of THJ v Sheridan

What constitutes originality in copyright law is an enduring and complex question. The most recent legal examination of this concept is set out in the case of THJ v Sheridan,[1] and it offers useful reminders to creative people! The Court of Appeal delved into the intricacies surrounding the protection of graphical user interfaces (GUIs) and brings to the forefront the ongoing relevance of the Court of Justice of the European Union’s (CJEU) jurisprudence, particularly in the post-Brexit era.

To comprehend the evolution of the legal landscape, it is crucial to first consider the historical perspective. Traditionally, under English law, the bar for originality was relatively low, with ‘original’ being synonymous with ‘not copied.’ The prevailing ethos was that any work deserving of replication should be safeguarded, and originality was perceived as the outcome of deploying ‘sufficient skill, labour, or effort.’ However, the CJEU, through its decisions, notably under the InfoSoc Directive including Infopaq[2] and BSA,[3] introduced a more sophisticated requirement for originality. According to the CJEU, originality requires more than mere skill or effort. A work deserving of protection, as per the CJEU’s guidance, must emerge from ‘creative freedom’ and ‘free and creative choices,’ carrying the unmistakable ‘personal touch’ of the author. Importantly, this standard has been integrated into English law, evolving our approach, and elevating the threshold for what qualifies as original. In Banner v Endemol,[4] Mr. Justice Snowden said that ‘The requirement of originality under the CDPA [Copyright, Designs and Patents Act 1988] is that the work must be an expression of the author’s own intellectual creation.’[5] This followed on from SAS v World Programming,[6] in which Lord Justice Lewison found that ‘If the Information Society Directive has changed the traditional domestic test, it seems to me that it has raised rather than lowered the hurdle to obtaining copyright protection.’[7]

In THJ, Lord Justice Arnold meticulously examined the practical application of this evolved understanding of originality. Citing Infopaq and a number of other CJEU decisions, he stated:

“The Court of Justice has elaborated upon the requirement that the work be its author’s own intellectual creation in a number of subsequent judgments. What is required is that the author was able to express their creative abilities in the production of the work by making free and creative choices so as to stamp the work created with their personal touch … This criterion is not satisfied where the content of the work is dictated by technical considerations, rules or other constraints which leave no room for creative freedom.”[8]

This is a critical distinction. Where technical constraints or rules dictate the content of the work, leaving no room for creative freedom, there cannot be any intellectual creation, and therefore in such circumstances there is no originality.

Arnold LJ. noted with surprise that the judge at first instance (John Kimbell KC sitting as a Deputy High Court Judge) failed to apply the CJEU-mandated test, opting instead for the outdated skill, labour, and effort criteria. However, he partially forgave the judge for this lapse, as he had not been referred to any of the relevant CJEU authorities on this point.[9] The Court of Appeal therefore took it upon itself to reassess the originality of the GUIs, employing the correct test and ultimately affirming their originality. Arnold LJ underscored that the test for originality is an objective one, and divorced from considerations of artistic merit, as set out in s4(1)(a) of the CDPA 1988, which states that a graphic work is an artistic work, ‘irrespective of artistic quality.’[10]

The significance of the THJ judgment is: Firstly, it underscores the enduring influence of CJEU case law on the foundational principles of English law in the area of copyright. Despite the ability for the UK government to depart from CJEU precedents in this area post Brexit, it is yet to do so. Without Parliamentary intervention, it is unlikely that the Senior Courts (the Court of the Appeal and Supreme Court) would move away from the case law precedents that have now been incorporated into English case law.

Secondly, Arnold LJ’s reference to originality not requiring artistic merit implies a potential clash between the UK’s closed categories system and EU law (and potentially with the Berne Convention too). We previously discussed this dichotomy in the Shazam case (here [https://www.vennershipley.com/insights-events/only-fools-and-copyright-is-there-copyright-in-fictional-characters/]) with regard to the copyright in characters per se, as opposed to as a literary work.

Lastly, the ruling reinforces the objectivity of the test for originality, refuting the notion that factors such as artistic value or the author’s intention to create something artistic should play a decisive role. The CJEU will consider this precise point when it reviews the referral in the Mio case.[11]

In conclusion, the THJ judgment stands as a comprehensive guide on the nuanced concept of originality in both English and EU copyright law. It illuminates the lasting impact of CJEU decisions, shaping the legal understanding of originality even in a post-Brexit environment and sets a precedent for future considerations in this intricate legal terrain.

[1] THJ Systems Limited & Anor v Daniel Sheridan & Anor [2023] EWCA Civ 1354

[2] Infopaq International A/S v Danske Dagblades Forening (C-5/08)

[3] Bezpečnostní softwarová asociace – Svaz softwarové ochrany tegen Ministerstvo kultury C-393/09

[4] Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600 (Ch) (19 October 2017)

[5] Ibid. at 26.

[6] SAS Institute Inc v World Programming Ltd [2013] EWCA Civ 1482 (21 November 2013)

[7] Ibid. at 37.

[8] Above n.1 at 16.

[9] Above n. 1 at 23.

[10] Above n. 1 at 24.

[11] Mio AB et or v Galleri Mikael & Thomas Asplund Aktiebolag (C-580/23)