September 5, 2019

Copyright “Heresy” – when original is not original for Copyright Law

The Court of Appeal recently released its well-reasoned and articulate decision in Zhang v Sealegs International Limited [2019] NZCA 389 (“Sealegs”), detailing the difference between ‘original’ in the ordinary sense of the word and ‘original’ in copyright law.

The decision is an important one for businesses, and lawyers, because it demonstrates that merely because an arrangement of components or features is new or innovative does not mean it is original under copyright law. As the lawyer for Orion Marine put it, confusing novelty of arrangement with originality commits “copyright heresy”.[1]

There’s original, and then there’s original

Originality in its copyright sense is a very distinct thing from how originality is used in everyday speech – it’s a technical term based on how much labour, skill, and judgment went in to the creation of the copyright work such as a drawing or a book and not how original (new) the idea behind the copyright work was or is.

Just as importantly, how something works cannot contribute to originality in the copyright sense, as copyright does not protect function. Function, or method of operability, is protected by patents. As a result, if an aspect of a copyright work is chosen or constrained by function it will usually not be considered when determining if that work as a whole is protected by copyright.

This is particularly the case where the originality claimed (for copyright) comes from a choice that is dictated by how the product works – there are, for example, only a set number of ways a wheel can be attached to a leg to allow for steering and movement. Where that choice is constrained by function, there’s no originality.

The Court of Appeal’s decision

The Court of Appeal in Sealegs confronted this issue in the context of “leg” assemblies for amphibious boats, where it overturned a High Court decision that had erroneously held a new and unique arrangement of components assembled into “legs” was original for copyright purposes.

The Court of Appeal held that while the idea to put three “legs” together in a particular way and attach them to the outside of a boat was original in the ordinary sense (as it was a new idea), it was not original in a copyright sense. What was protectable by copyright was the expression of that idea by choosing a specific arrangement of the parts in a particular way to form a “leg”.

The Court of Appeal noted that Sealegs’ evidence showed that its choice of arrangement was dictated entirely by “the functional operability of the leg”.[2] Because of this, Sealegs’ choice was, in effect, made for it and not by it. Any skill, labour and judgment that went into the sequence of the various generic components in the leg assemblies, the Court said, was negligible.[3] As a result, Sealegs’ particular arrangement of its “legs” was not original in the copyright sense[4] and Orion had not infringed.

New is not always original (for copyright)

Sealeg’s case is a reminder that it is important to always ensure that you don’t fall into the trap of thinking a new (or innovative) idea will automatically be protected by copyright, much like Sealegs did. Copyright arises from the effort expended to express that idea, not from the idea itself. Or in legal terms: novelty is not synonymous with originality.[5]

[1]  Zhang v Sealegs International Limited [2019] NZCA 389 at [121]: “It is unsurprising that it provoked Mr Miles’ criticism of “copyright heresy”.”
[2] Zhang v Sealegs International Limited [2019] NZCA 389 at [122].
[3] Zhang v Sealegs International Limited [2019] NZCA 389 at [122].
[4] Zhang v Sealegs International Limited [2019] NZCA 389 at [122].
[5] See Zhang v Sealegs International Limited [2019] NZCA 389 at [106] and [108].

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