LAW AND COMMERCE
that the court is concerned largely about the ‘cognitive’ effort that was directed to creating, and as expressed in the work. Additionally, the High Court considered whether the ‘seeds’ – fictitious listings ‘planted’ in the directory for the purposes of identifying unauthorised copying – qualify for copyright protection. Broadly speaking, those fictitious listings might be considered as literary works if the Infopaq test were to be applied without qualification. In this case, although Wei J did not foreclose the possibility of copyright subsistence in short phrases – where he endorsed the ascertainment as ‘a matter of judgment’ by reference to the degree of ‘intellectual input and content’28 – it was decided that there was ‘insufficient skill’ involved in ‘devising the individual seeds to qualify them for copyright protection’.29 Menon CJ, in the Court of Appeal, concurred with Wei J that ‘the creation of a fictitious name and telephone number falls well short of the requisite standard of creativity’.30 This is notwithstanding the High Court’s finding that ‘some effort was expended’31 in deriving the seeds.
Implications of the Shift in UK and Singapore As elucidated in foregoing sections, a paradigmatic shift in approach in both the UK and Singapore can be observed. Broadly, there is a shift from a largely ‘quantitative’ (skill, labour and judgment) to a more ‘qualitative’ (intellectual creation/creativity) assessment of the work. Also, the focus of the assessment has arguably been shifted to the final work per se, and away from the efforts directed to preparatory work. i)
United Kingdom
For UK’s copyright regime, the implications could be observed in Meltwater where the court had to ascertain inter alia the subsistence of copyright in newspaper headlines. Proudman J decided in the High Court that ‘headlines are capable of being literary works, whether independently or as part of the articles to which they relate’.32 In this instance, some of the headlines considered by the court ‘are certainly independent works within the Infopaq test.’33 On appeal, the High Court’s ruling was upheld, where Sir Andrew Morritt considered the former’s decision to be ‘unassailable’.34
28
Global Yellow Pages (n 23) [299].
29
ibid [303].
30
ibid [52].
31
ibid [302].
32 National Licensing Agency v Meltwater Holding BV [2010] EWHC 3099 (Ch) [71].
Juxtaposing Meltwater with the earlier case of Francis Day & Hunter Ltd, an apparent inconsistency would come to light. It was decided in Francis Day that a 9-worded song title – ‘The Man Who Broke the Bank at Monte Carlo’ – ‘is not sufficiently substantial to justify a claim to protection’35 [emphasis added] as a literary work. Francis Day might however be decided differently today, following the case of Infopaq and Meltwater. Whilst the Court was very much concerned about ‘substantiality’ – i.e. arguably a largely quantitative assessment – in Francis Day, the focus in Meltwater was on the ‘intellectual effort’ directed to deriving the headline. Indeed, copyright was held to subsist in the headlines in Meltwater because they ‘involve considerable skill in devising’.36 In this light, one could argue that the headline would be devoid of copyright protection but for Infopaq, for it would certainly fall within the reign of Francis Day. Rosati, in considering the implications of Infopaq, commented that the new approach could result in a ‘change in scope and meaning of protected subject matter … and will certainly affect low-creativity and technical subject matter’.37 The Francis Day-Meltwater juxtaposition could be one such example, as to how the ‘scope and meaning’ of protected subject matter would change. ii)
Singapore
The implications of such a shift on Singapore’s copyright regime is however less evident, for the shift in approach was confirmed only recently. Moreover. GYP’s judgment has not yet been considered or refined by the judiciary in later cases. Nonetheless, the judgments in APP and GYP do provide some guidance as to the ‘intellectual creation’ approach. Moreover, it is arguable that the implications are likely to mirror that of the UK, where ‘low creativity and technical’38 works might not qualify for copyright protection now. In APP, VK Rajah JA cited the ‘four key principles discerningly summarised’39 in the seminal case of Feist with approval, when ascertaining the subsistence of copyright. In particular, he said that the ‘… issue of whether copyright subsists … rest primarily on the fourth principle – the existence of a minimum degree of creativity independently exercised by the author’.40 This entails that ‘sweat of the brow’ per se might not suffice, as is the case in the UK. It follows that both Auvi Pte Ltd and Virtual Maps may cease to be authoritative. Indeed, 35 Francis Day and Hunter, Limited v Twentieth Century Fox Corporation, Limited [1940] AC 112, 116. 36 [70].
National Licensing Agency v Meltwater Holding BV (n 33)
37 Eleonora Rosati, ‘Originality in a Work, or a Work of Originality: The Effects of the Infopaq Decision’ (2011) 33 EIPR 12, 752 38
ibid.
33
ibid.
39 Asia Pacific Publishing Pte Ltd v Pioneers & Leaders (Publishers) Pte Ltd (n 25) [38]
34
ibid [22].
40
ibid [39].
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