Requirements for Copyright Protection
IN ORDER TO OBTAIN COPYRIGHT PROTECTION, SOME TESTS NEED TO BE MET:
TEST 1: ORIGINALITY
Firstly, the work you create must be ‘original’. It must have originated from you and it must reflect skill and judgment in its creation. This test may be described differently and may differ in its application in different countries. However, in all cases, there is a threshold test that must be met in order for a work to qualify for copyright protection.
Do compilations of facts like telephone directories or online databases meet the legal threshold for protection? Databases, especially electronic databases, can be an important commercial asset for a business so strategies for protecting them must figure into any sound IP strategy. In such cases, copyright law will be the first form of IP to look to.
If the database meets the test for ‘originality’ in that it involves some authorial effort or skill and judgment in the selection and arrangement of the data, then it will likely be protected by copyright. However, routine compilations of data or facts, such as, for example, the alphabetical listing in a telephone directory, would not likely attract copyright protection.
In countries like Canada, Australia and the United States, among others, a database that does not attract copyright protection is not protected by any form of IP law, although contractual agreements might be used to fill this gap. In contrast, in countries of the European Union, in cases where databases do not meet the copyright tests, there is a separate database right that offers protection in cases where the database was the result of ‘substantial investment in obtaining, verifying or presenting the contents'.2
2 "The Copyright and Rights in Databases Regulations 1997""You cannot copyright a word"
Copyright protection is very difficult to obtain in single words, or titles on their own, although there are exceptions and these vary from country to country. Some jurisdictions deny copyright as a matter of principle.
The oil and gas company Exxon Corp. was unsuccessful in a copyright infringement claim against Exxon Insurance. The English court of appeal found that there could be no copyright in a name or single word, even if coined or invented. However certain jurisdictions might still recognize copyright protection in short expressions if they are sufficiently ‘original’.
If the word in question is the trademark of a company (like, for example, EXXON), then the most relevant recourse to consider would be under trademark law, instead of copyright, as we will see later in this module.
TEST 2: FIXATION
In some jurisdictions, especially common law countries, works must be fixed in some material form (i.e. written down or recorded in some way) in order to be protected by copyright. For example, improvised works that are delivered spontaneously are likely not protected in Canada.
In contrast, in civil law jurisdictions where this element of fixation is not required, the creator of the improvised routine would be able to stop someone who sees the routine and copies all or a substantial part of it.