The High Court in Belgrade recently decided a case in which the central issue was the originality of a plaintiff’s article published in a magazine and later re-published on her own website. The judgment of 31 October 2012 has proven to be atypically long (twelve pages) for a decision issued by a Serbian court in a copyright case. However, and contrary to what one would expect considering the importance of originality for the adjudication of the case, the court explained in only one paragraph why it considers that the article is original and therefore subject to copyright protection. In addition, the court remained silent on the principal argument which was used by the plaintiff for claiming the originality of her article.
As neither party appealed the judgment, the case represents a missed opportunity of the Serbian judiciary to elucidate the issue of the originality of magazine and internet articles. (BDK Advokati/Attorneys at Law represented Jelena Djurovic, the plaintiff in the case).
The plaintiff sued the weekly magazine Story, its editor-in-chief, and a magazine journalist, for the unauthorized use of a number of sentences from her article about the U.S. rock band REM. Ms. Djurovic wrote the article in 2004, when it was published in a magazine about the arts, and then re-published it on her own website dedicated to popular culture (Agitpop), on 21 September 2011, the day REM members announced the dissolution of the band. In early October 2011, Story filled-in one third of its own article about REM with sentences from Ms. Djurovic’s text. Although the infringing sentences were taken verbatim or with minimum changes from Ms. Djurovic, Story avoided making any reference to the original author or article. About one-quarter of Ms. Djurovic’s article appeared in the infringing work.
The defendants argued before the court that no copying occurred. Instead, they claimed, both Ms. Djurovic and Story used “information” from various (unspecified) articles originally published in English, and both “translated” sentences from those sources; that is why the article from Story “bears resemblance” to Djurovic’s article, as Story claimed. The journalist who wrote the Story article told the court that prior to writing about the REM band dissolution she had not read Djurovic’s article.
The court did not accept these allegations of the defendants, because the amount of sentences in the Story article which were identical, or nearly identical, compared to those in the plaintiff’s text was such that the claim about independent creation could not withstand serious scrutiny.
More interesting was the defendants’ second argument, that the plaintiff’s article lacked originality and therefore was not protected by copyright. The article allegedly lacked originality because the “information” contained therein had been published previously by other media. Ms. Djurovic readily conceded that the facts mentioned in her article had been published by others. However, argued the plaintiff, the use of such facts was irrelevant to the issue because copyright law does not protect facts as such. The court agreed that the plaintiff’s article is original on other grounds of importance in copyright law.
However, the court failed to clarify exactly why Ms. Djurovic’s article was original. According to the plaintiff, her article expressed the author’s creativity in an original way. Ms. Djurovic, who is both a journalist and a novelist, employs playful style in her articles, which also characterizes the sentences “borrowed” by Story in the article about REM. For example, in the first part of her text, she wrote the following (the parts left out in the Story article are in brackets):
[Fifteen] years later, in the summer of 1996, Stipe, Buck, Mike Mills and Bill Berry posed in their wrinkled T-shirts for the cover page of Rolling Stone. (…) Underneath their photo, only one sentence, the question: “Would you pay 80 million USD for this band?” The folks from Warner had no dilemma – the four [from the Athens school] signed [what up to that point was] the most expensive contact in the history of rock music: eighty million for five albums. In advance.
Ms. Djurovic’s article ends with a sentence which is a continuation on the passage already cited:
Would you pay 80 million dollars for this band? Round it up at 100.
The author argued that this sort of expression, which permeates the entire article, ensured that her piece was more than a bare recital of the facts. Apart from the way in which the sentences were formulated, the article’s structure also added to the colorfulness. The last third of the article was written in the Q & A form. (The question and the answer about 80 and 100 million dollars come from that segment.) All of that made her article original in the sense of expressing the author’s creativity.
As a second argument, Ms. Djurovic stated that the selection and arrangements of the facts used in the article also made it original. From the endless array of information available about REM at the time of her writing, she selected some facts and arranged these in a particular way, in order to achieve a coherent whole. The selection and arrangement required a degree of creativity which, according to the plaintiff, bestowed sufficient originality upon the article.
The court agreed that the plaintiff’s article was indeed original and found that Story made a copyright infringement. However, the court made the finding of originality solely on the basis of the arguments on the selection and arrangement of the facts.
The court did not reject the plaintiff’s principal argument of originality – her expression; but it simply made no reference to this. Such a decision is curious, because expression figured much more prominently than “selection and arrangement” in the plaintiff’s submissions to the court, and this is regrettable because expression is clearly the central issue in intellectual property law when the originality of articles is assessed. Due to its failure to address this issue, the judgment contributes little to the understanding of the concept of originality among authors, the media, and IP practitioners in Serbia, amongst others.
This is not to say that the selection and arrangement of facts is irrelevant in the assessment of the originality of newspaper articles. Christophe Caron, a noted French expert on copyright law, states in his Droit d’auteur et droits voisins (2nd ed., 2009) that newspaper and magazine articles are often original both on the account of the selection and arrangement (composition) of facts and on the account of the author’s expression (p. 110).
Nonetheless, from a brief overview of comparative jurisprudence it is evident that expression is the central issue concerning the originality of articles. All the way back, in 1921, the U.S. Court of Appeals for the Seventh Circuit concluded that the newspaper article at issue was original because, as explained:
it reveals a peculiar power of portrayal, and a felicity of wording and phrasing, well calculated to seize and hold the interest of the reader, which is quite beyond and apart from the mere setting forth of the facts. [T]he arrangement and manner of statement plainly discloses a distinct literary flavor and individuality of expression peculiar to authorship, bringing the article clearly within the purview and protection of the Copyright Law.
(Chicago Record-Herald Co. v. Tribune Association, 275 F. 797, at 799).
The recent pronouncement on the matter by the Court of Justice of the E.U. also revolves around the issue of expression of the author’s creativity:
Regarding the elements of [newspaper articles] covered by the protection, it should be observed that they consist of words which, considered in isolation, are not as such an intellectual creation of the author who employs them. It is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation.
(Infopaq International A/S v. Danske Dagblades Forening, Case C-5/08, Judgment, 16 July 2009, para. 45.)
More recently, the Paris Court of Appeals deciding upon the alleged infringement of copyright in different dispatches and articles published in the magazine Le Point emphasized that the originality of a specific work “demonstrates genuine creative effort which not only reveals know-how but also bears the stamp of the author’spersonality” (Le Point v. The Web Family, Judgment of 9 November 2012).
Even in jurisdictions with a case law, far more developed than in Serbia, there is work to be done for the contours of the concept of originality, as applied to articles, in order to take on a definitive shape. How far beyond “the mere setting forth of the facts” an article has to go in order to be original? Exactly when does an article “bear the stamp of the author’s personality”? To what extent, if at all, do the selection and arrangement of facts play a role in the determination of originality of an article? The High Court responded (in part) to one of the few relevant questions, the one pertaining to the selection and arrangement of facts, and with respect to that one it is not certain that the Court’s response would have survived on the appeal, had the case reached that stage.