English & Continental Tests of Originality: Labour, Skill, and Judgement versus Creations of the Mind

Abstract

This paper traces the provenance of the predominant tests of originality in copyright to their instrumental and author's rights justifications. It argues that the idea/expression dichotomy is essential to any evaluation of their relative merits, but is being undermined. It illustrates the hazards of absolutist applications of the tests and demonstrates, primarily with reference to photography, how many established principles of copyright law are problematic. It argues that despite increasing constitutionalisation of intellectual property, the public interest is best served by acknowledging that copyright is primarily a policy choice.

Keywords: copyright