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I. COPYRIGHT: CASES AND MATERIALS
- The “rough practical test” referred to at the end of the extract from the
University of Londoncase (above), that “what is worth copying is prima facie
worth protecting”, is often cited but not universally admired nor followed.
- Originality must be judged by looking at the work as a whole,
not merely at its component parts
A work may be made up of a number of components. Each component may
itself be original and, if it stood alone, may have copyright. Other components
may not be original. But when one asks whether a whole work has copyright,
the question of originality must be answered by looking at the work as a whole.
Ladbroke (Football) Ltd v. William Hill (Football) Ltd [1964] 1 W.L.R. 273
(U.K.: House of Lords)
[The plaintiff devised a popular football betting coupon. The defendant copied
the format and bets from the plaintiff’s coupon, but gave some bets new names
and worked out the odds independently. The plaintiff sued for copyright
infringement of its work as a compilation. The defendant denied that the
plaintiff’s work was “original”.]
LORD PEARCE:
In deciding ... whether a work in the nature of a compilation is original, it is wrong to start by
considering individual parts of it apart from the whole, as the appellants in their argument sought
to do. For many compilations have nothing original in their parts, yet the sum total of the
compilation may be original. ... In such cases the courts have looked to see whether the
compilation of the unoriginal material called for work or skill or expense. If it did, it is entitled
to be considered original and to be protected against those who wish to steal the fruits of the
work or skill or expense by copying it without taking the trouble to compile it themselves. So the
protection given by such copyright is in no sense a monopoly, for it is open to a rival to produce
the same result if he chooses to evolve it by his own labours. ...
Thus, directories, catalogues, and the like have been held to be original and to acquire copyright
if the work that goes to their making has been sufficient Where, however, the work of
compilation was not “substantial” but was “negligible” it was held to have no copyright ... The
arrangement of the material is one of the factors to be considered. ... So in each case it is a
question of degree whether the labour or skill or ingenuity or expense involved in the
compilation is sufficient to warrant a claim to originality in a compilation.
Applying those principles to the present case, I feel little doubt that the respondents’ coupon is
entitled to copyright. The respondents have been pioneers in this field and have invented various
bets and nomenclatures, some of which have been adopted by their rivals. A study of the coupons
of twenty-three principal firms engaged in the fixed odds betting business shows that a large
proportion of the bets in the respondents’ coupon are also offered by their rivals, and much
similarity of language, arrangement and substance will be found in their coupons. It emerges
clearly that the arrangement and contents of the coupon are the central point of the business –
what one witness called the heart of the business. The coupon must contain an assorted selection
of bets that will attract a customer and induce him to fill up the coupon in preference to rival
coupons. To this end, the respondents have devoted much work and money and ingenuity. Out of
the vast number of bets that can be offered, they select and devise those which, while being
profitable to them, will fill the coupon with the greatest allure.
