Subsistence of copyright in puns: a follow-up

Copyright laws in the EU:
always in harmony,
never out of step ...
Yesterday the IPKat asked whether the new European regime of copyright harmonisation by stealth through the creep of judicial rulings from the Court of Justice of the European Union (CJEU) might produce the result that puns would be protectable subject matter under EU copyright law (see Katpost here). That speculation has produced a number of responses by way of irate emails, mainly from those who consider the protection of puns to be a monstrous appropriation of live culture and from a smaller number of readers who would happily provide copyright protection even for the unarticulated thoughts in a person's head, if they had but the means of doing so.

The Kats' fullest and best-reasoned response so far is an email from Chris Pratt (Waterfront solicitors), which is reproduced below [and before you ask, yes, it's with his permission -- if indeed permission is needed ...]. Writes Chris:
"I comment from an English law perspective.

I don’t disagree with your conclusion that in theory a pun may attract copyright protection in the UK. It’s the route that has been taken that troubles me (it’s also the reasoning used by the High Court, and approved by the Court of Appeal, in the Meltwater case [on which see earlier Katposts here, here and here, plus any number of posts on the 1709 Blog], which is somewhat more problematic).

Case C-5/08 Infopaq was a CJEU decision based on the right of reproduction. This right has been harmonised within the EU under the InfoSoc Directive. The question of subsistence of copyright for literary works has not been harmonised within the EU (other than for computer programs and databases). As you can see, there is a fundamental problem in trying to apply the Infopaq decision to pure questions of subsistence of unharmonised copyright works. The test for originality of literary works (other than computer programs and databases) in the UK when considering subsistence of copyright remains the “skill, labour and judgment” test.

In practice, the application of either test is unlikely to result in a different outcome in the vast majority of cases. However, it is said that “skill, labour and judgment” is a lower threshold than the EU “author’s own intellectual creation” test of originality, and would allow pure “sweat-of-the-brow” works to attract copyright protection (TV listings are a commonly cited example).

Unfortunately, the High Court in Meltwater (as approved by the Court of Appeal) applied the Infopaq decision to the question of subsistence of copyright in newspaper headlines as literary works. I don’t disagree with the conclusion that authors of certain newspaper headlines may have exerted sufficient skill, labour and judgment so that they are protected as literary works. And applying the EU originality test is not likely to make a difference to that conclusion, since they’re not sweat-of-the-brow type works.

Similarly, when considering puns, I can see that authors of certain puns are likely to have exerted sufficient skill, labour and judgment so they attract copyright protection (that conclusion being unaffected by the application of the EU originality test). But the real issue here is one of legal reasoning. The Meltwater decisions made the error of applying Infopaq to subsistence of copyright. This error would not have affected the conclusion reached, so I can perhaps see why the issue wasn’t pressed too hard on appeal. Unfortunately, though, it does look like this flawed reasoning is here to stay (and it is regrettable that it won’t be raised before the United Kingdom Supreme Court).".
This Kat is not sure that he agrees that "skill, labour and judgment" -- assuming that it is indeed still the UK test [who dares assume anything in this area of law these days?] -- is necessarily a lower threshold for subsistence of copyright than the "author's own intellectual creation" test, and he suspects that if the level of the latter plumbs the same depths as the concept of "distinctive character" in EU trade mark law, even a smidgeon's worth of intellectual creation might find itself vested with protection for death-plus-seventy.

What do readers think?
Subsistence of copyright in puns: a follow-up Subsistence of copyright in puns: a follow-up Reviewed by Jeremy on Thursday, January 17, 2013 Rating: 5


  1. I take a different view to Chris Pratt.

    First, it seems to me that the CJEU absolutely does intend to harmonise subsistence of copyright and even more significantly the notion of a work. That approach is particularly clear in Bezpečnostní softwarová of course. It is not what we meant to do when we all signed up to the directive (as Professor Bentley points out) but it appears to be what has happened.

    Second, infringement is the mirror of subsistence. An inquiry into infringement will of necessity look at what subsists in order to discover whether there has been infringement of that. At least that is the approach taken by many UK authorities and by the CJEU. What this means is that if the CJEU can rule on what is or is not an infringement of the reproduction right and wishes to harmonise that (as surely they would) it is not surprising that they will in the process approximate the laws on subsistence.

    Huťko has been blogging about harmonisation of subsistence for a long time:

    (a very intelligent blog I highly recommend).

    I suggest that there has in fact been harmonisation and that (alas) we UK lawyers have to abandon formulae we know well (even if they were always hard to apply).

  2. The claim that "The test for originality of literary works (other than computer programs and databases) in the UK when considering subsistence of copyright remains the “skill, labour and judgment” test." is incorrect. What does Mr Pratt mean by "unharmonised works"? All types of literary and artistic works (in the Berne sense) are harmonised by Infosoc, and "originality" is a standalone EU concept, which is for the Court of Justice to interpret. The Court has done this by applying the "author's own intellectual creation" test.

    "Skill, labour and judgement" is no more, get used to it.

  3. I'd like to approach this issue from a different perspective. Most short puns, epigrams and witticisms probably fall within the de minimis category even if they exhibit originality. But more to the point it is hard to see how, even if they are protected, they could be monetised in a way that makes awarding them copyright worthwhile. Principles alone do not generate income.
    Most puns are going be re-cycled in speech or low-volume written contexts (Twitter user with few followers). Would any one actually seek a licence to use a pun? I think not. Therefore apart from the moral right mentioned in the previous posting, an author of a pun is likely to earn absolutely nothing from his creativity, even I suggest, if he sued for infringement, because the cost of bringing the claim (even using the PCC small claims track) would outweigh any likely damages for such trivial case, assuming the matter was not thrown out in the first place. Secondly to succeed, the complainant would need to prove he was the author; not an easy task, I suggest, where the substance of the pun will usually consist of just a few common words. Thirdly the complainant would need to establish that the alleged infringement was not independent creation.
    On that basis I see good public policy reasons for puns etc not to be protected, irrespective of how witty, enduring or clever they or their author may be. Just let society have a bit of free enrichment, call it a loss leader.

  4. Andy J - why need he seek damages? Why not an injunction, and/or correct attribution as the author? Costs to the plaintiff, if copyright subsists and the reproduction was not authorised.

  5. @ anon 16:28.
    My point was that, fundamentally, copyright (in the UK and US at least) is an economic right to which moral rights have been bolted on.
    Gaining an injunction would only be of value where an infringement was likely to be repeated by the same defendant and they are usually temporary in nature pending a more permanent remedy such as delivery up, which I suggest is pointless where a tweet is concerned.
    Correct attribution is purely a moral right and an injunction is the main remedy available (s 103 refers). Neither of these remedies provides financial benefit to the author in real terms (costs are capped after all) so I suggest that it is better that there should be early public benefit through enrichment of the language than for the author to be given worthless rights in this instance.

  6. Let's have a pun-ishment to fit the nook rhyme!


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