Determining originality in creative literary works

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dc.contributor.advisor Klopper, H.B. en
dc.contributor.coadvisor Galloway, Francis en
dc.contributor.postgraduate Geyer, Sunelle en
dc.date.accessioned 2013-09-06T22:07:26Z
dc.date.available 2006-06-14 en
dc.date.available 2013-09-06T22:07:26Z
dc.date.created 2005-06-13 en
dc.date.issued 2007-06-14 en
dc.date.submitted 2006-06-14 en
dc.description Thesis (LLD)--University of Pretoria, 2007. en
dc.description.abstract Originality is the most basic requirement for the copyrighting of a work and may be viewed as the mirror image of copyright infringement. In terms of section 2(3) of the Copyright Act, a work remains eligible for copyright even if the making thereof involved an infringement of copyright in some other work. However, a certain aspect or a feature of a work (relating to the “substantial part” requirement for copyright infringement; “substantial part” being understood from a hypertext rather than a linear point of view) cannot be infringing and original. In this thesis, the South African legal understanding of the originality concept is determined from case law. Specific attention is given to the meaning of “skill” and “labour”; the protection afforded to mere labour in South Africa and certain selected other jurisdictions; how the subjective nature of the originality test is affected by the “meritorious distinctiveness” requirement; and the degree of own skill and/or labour required for a work to be original and consequently protected. The present literary concept of originality is derived from literary discussions that appeared in newspapers and other publications in the wake of six “plagiarism scandals” which each caused a furore in Afrikaans literary circles. Even though the terminology used by littérateurs differs from that used in legal circles, originality essentially means the same for littérateurs and lawyers. Skill and/or labour as required by law is reflected in the literary “crucial distance” concept. The fact that a sufficient degree of skill and/or labour is required is reflected in the fact that the literary standard of a work is determined on the basis of how “tightly woven” a work is. Although a general protection of original ideas would negatively influence the free flow of information, measures for the protection of ideas are developing, particularly in the United States of America, where ideas (especially in the film industry) are a very valuable commodity. As Swarth proposes, applying the “novelty” and “concreteness” criteria in inverse ratio to each other could help to create an environment where idea purveyors and prospective buyers felt more free to negotiate and enter into agreements over original ideas. Postmodernism, a contemporary interpretative strategy that reaches into nearly every aspect of modern society, is discussed with specific reference to its interaction with originality. The influences of two phenomena of postmodernism on the originality concept, namely hypertext and Chaos theory, are investigated. Recommendations are made regarding measures aimed at the retention of talented authors and the original content of works in the wake of plagiarism scandals, while still holding the wrongdoer responsible for his actions. Certain suggestions are also made regarding the accessibility of courts and the supplementation of the few available precedents regarding originality in creative literary works. en
dc.description.availability unrestricted en
dc.description.department Private Law en
dc.identifier.citation Geyer, S 2005, Determining originality in creative literary works, LLD thesis, University of Pretoria, Pretoria, viewed yymmdd < http://hdl.handle.net/2263/25527 > en
dc.identifier.upetdurl http://upetd.up.ac.za/thesis/available/etd-06142006-122413/ en
dc.identifier.uri http://hdl.handle.net/2263/25527
dc.language.iso en
dc.publisher University of Pretoria en_ZA
dc.rights © 2005, University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. en
dc.subject Copyright en
dc.subject Originality en
dc.subject Literary works en
dc.subject Skill and labour en
dc.subject Meritorious distinctiveness en
dc.subject Copyright infringement en
dc.subject Plagiarism en
dc.subject Post modernism en
dc.subject Literary originality en
dc.subject Crucial distance en
dc.subject Idea protection en
dc.subject Hypertext en
dc.subject Chaos theory en
dc.subject UCTD en_US
dc.title Determining originality in creative literary works en
dc.type Thesis en


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