Originality In Copyright ' A Review Of THJ v Sheridan

• Published date: 11 December 2023
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Venner Shipley
• Author: Mr James Tumbridge and Benedict Sharrock-Harris

What constitutes originality in copyright law is an enduring and complex question. The most recent legal examination of this concept is set out in the case of THJ v Sheridan,¹ and it offers useful reminders to creative people! The Court of Appeal delved into the intricacies surrounding the protection of graphical user interfaces (GUIs) and brings to the forefront the ongoing relevance of the Court of Justice of the European Union's (CJEU) jurisprudence, particularly in the post-Brexit era.

To comprehend the evolution of the legal landscape, it is crucial to first consider the historical perspective. Traditionally, under English law, the bar for originality was relatively low, with 'original' being synonymous with 'not copied.' The prevailing ethos was that any work deserving of replication should be safeguarded, and originality was perceived as the outcome of deploying 'sufficient skill, labour, or effort.' However, the CJEU, through its decisions, notably under the InfoSoc Directive including Infopaq² and BSA,³ introduced a more sophisticated requirement for originality. According to the CJEU, originality requires more than mere skill or effort. A work deserving of protection, as per the CJEU's guidance, must emerge from 'creative freedom' and 'free and creative choices,' carrying the unmistakable 'personal touch' of the author. Importantly, this standard has been integrated into...