Is my work original enough?

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07 Jun 2019

It is often said that there is nothing new under the sun, and that re-inventing the wheel is often a futile effort. Intellectual Property (IP) refers to creations of the mind, for example: inventions, product designs, literary and artistic works, and symbols, names, images, and designs used in commerce. Therefore, if ideas and innovation are the result of the shared lived experience of the common person, how do we determine if a work is an original work as defined, for example, in the Copyright Act (Act)? Does the work have to be new? Can inspiration be drawn from another work? Can common words qualify as original works in terms of the Act?

According to the Act, for copyright to subsist in a work it must be original and reduced to material form.  Ideas are not protectable by copyright. In order to be original, a work does not have to be innovative or new, but rather it must be the result of the author’s own skill, time and effort expended in creating the work. With regards to the requirement that the work be “reduced to material form”, this simply means any form of notation, whether by hand or by printing, typewriting or any similar process, including by electronic or digital means. For example, a person’s Facebook/Twitter page would qualify as “reduced to material form.”

The current social media age has led to a greater accessibility of information and people are constantly sharing information, photographs, artistic works and ideas. Therefore, it may become difficult to determine if the work produced is original, or merely a paraphrasing of another person’s work. Copyright cannot subsist in work that is common place. In the United States case of Kaseberg v. Conaco, famous late-night host Conan O’Brien is being accused of copyright infringement. The plaintiff, Alex Kaseberg, claimed in a lawsuit filed in July 2015 that writers from “Conan,” lifted five monologue jokes from his blog over the course of more than a year. The judge in the case of Kaseberg v. Conaco held that jokes have a “thin” protection because:

“the copyrighted work (Kaseberg’s jokes) is composed largely of ‘unprotectable’ elements. … [S]imilarities derived from the use of common ideas cannot be protected; otherwise, the first to come up with an idea will corner the market.”

In the current age of social media, where news developments and politics are often subjects to multiple parodies and jokes on YouTube channels and/or Twitter Pages, it would be difficult for one person to claim monopoly on jokes to relating to such topics.

This point was further reiterated in the South African case of Waylite Diary CC v First National Bank Ltd. In this matter Waylite contended that FNB had reproduced a diary that had been designed by both parties, and that its copyrights had been infringed. In summary the Court was of the view, that for a compilation to be the subject of copyright, it could not be “commonplace” and that the layout of the pages in questions was clearly commonplace, and did not warrant protection under the Copyright Act.

With the above in mind, how do we then determine if a work is original in terms of the Act?  In South Africa, originality for the purposes of subsistence of copyright means the expenditure of individual effort and expertise as distinct from copying. In other words, the “sweat of the brow.” For example, a person need not prove that the work is completely new (never been done before) for the work to be original. One of the things to keep in mind regarding originality, is that even if the underlying idea or information is drawn from a common stock of knowledge, provided that the creating of the work involved the requisite degree of skill, judgment, selection and ingenuity, copyright may subsist in the work.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Pamela Maluleke

Pamela Maluleke is an Attorney in KISCH IP's Trade Mark Department. Read more about Pamela Maluleke


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