Cunningham’s method of teaching Bible stories to her pupils was to tell
them in words which her pupils would understand and then to require them to
retell the stories before the whole class. No doubt not a particularly unusual
method of teaching. However, Mrs. Cunningham’s method was unusual in that
when her pupils were retelling the stories she used a tape recorder to record
what they said. In the course of her period of teaching at the school it
appears that she recorded literally hundreds of stories as they were retold by
plaintiff told the story
the year 1961. Many years later a well known broadcaster, Fr. D’Arcy,
found one He was of the tapes of the recordings made by Mrs. Cunningham.
questions which arise for decision in the present case are whether the words of
the story as recited by the plaintiff on the tape constitute an original
literary work. If they do not, then the plaintiff is
dealing with the first question, it is necessary to refer to some definitions
contained in the Act as well as to a dictionary definition.
is defined by s. 2(1) as including “any form of notation, whether by hand
or by printing, typewriting or other process”.
definition of notation in the Concise Oxford Dictionary is “the
representation of numbers, quantities, pitch and duration etc. of musical
notes, etc. by symbols; any set of such symbols; a set of symbols used to
represent chess moves, dance steps etc.; a record”.
these definitions the plaintiff submits that the trace on the magnetic tape
amounts to a notation and also comes within the words
The defendants on the other hand maintain that writing must be something which
use of the word
the dictionary definition of
not advance the plaintiffs case. It is not referring to a sound recording, but
a record in a particular form of what is to be retained, the record being made
in one of the ways indicated all of which can be read.
is to be found for the plaintiff’s proposition in the textbooks. These
were referred to in the judgment of Somers J. in
v. Broadcasting Corporation of New Zealand
 RPC 469
said at p.477:
was a case in which the plaintiff had been the author, producer and compere of
a television talent quest produced and broadcast in the United Kingdom under
whatever form the work must be recorded in order to determine the date from
which it is made, there appears to be no reason why such recording should not
be done by someone other than the author.
AC 539 may suggest the contrary, but it does not deal expressly with the issue.
In that case a journalist who had recorded a political speech verbatim and then
published it claimed infringement of his copyright in that publication against
another journalist who also published a verbatim copy but who had not been
present when the speech was made. It was held that the first journalist had
copyright in the speech and was entitled to succeed in his action. However, it
was not then necessary for the work to have been
obtain a copyright nor was the politician claiming any copyright in his own
is clear from s. 3(4) that a work may be in existence though not reduced to
writing or other material form. It can be contended that other material form
applies logically only to dramatic or musical works since they may be recorded
by means other than writing.
Green v. Broadcasting Corporation of New Zealand
RPC 469. This was a case essentially of a dramatic work.
proper construction of the provision must allow other material form to apply
also to literary work. Nor is there any distinction in principle between taking
down speech in shorthand and recording it on tape. Yet, in my view, the symbol
which comprises the notation must be capable without more of being understood.
This is not so with a magnetic trace. As a result, it is not entitled to
protection as a literary work. Nor does such a conclusion based as it is on the
absence of material form breach the provisions of the Berne Convention.
case highlights the need for greater certainty as to when and in what manner
copyright protection can be achieved for works covered by s. 8 of the Act. This
is a matter for the Oireachtas which we have been informed will soon be dealing
with proposals for such change. There remains the issue as to what is necessary
to constitute an original literary work, the emphasis being on the word
passage was cited with approval in
and Co. Limited v. Cooper
TLR 186. In that case the plaintiffs were the owners of copyright in a book for
‘s Life of Alexander, Sir Thomas North ‘s Translation. Edited for
schools by H. W.M. Power M.A.”
plaintiff claimed breach of its copyright in a work published by the
then refers to the decision of Mr. Justice Story in
3 Story’s US Rep., 768 in the American Supreme Court
a similar case where there was a dispute between two school textbook writers.
Lord Atkinson then continued:
this same theme Lord Oliver of Aylmerton in
Interlego A. G. v. Tyco International Inc.
 RPC 343 said at p. 371
Music Limited v. Sunday Pictorial Newspapers (1920) Limited
2 Q.B. 60
relied upon by the plaintiff. In this latter case the Court had to consider
whether a parody of a well-known song was in fact a copy or was it an original
work. McNair J. held that it was an original work. In dismissing the
plaintiff’s claim he said at p. 70:
that being my conclusion of fact, quite shortly I say that I am not satisfied
that the article in the ‘Sunday Pictorial’ does reproduce a
substantial part of the words of the ‘Rock-a-Billy’ song of which
the plaintiffs have the copyright.”
cases and the passages cited show that originality does not require the work to
be unique, merely that there should have been original thought. Where there is
treatment of materials already in existence, it is necessary to show some new
approach. It cannot be copied directly. The work must truly belong to the
person claiming to be the author.
the present case, much of the emphasis placed on the plaintiff’s work is
the charm in the way the story is recited. Emphasis was placed on the Dublin
pronunciation by the plaintiff of the word
that charm belongs to the sound recording not to the literary work, and the
copyright in the sound recording belongs to Mrs. Cunningham.
is not the words used which make the work original nor create the copyright.
Where, as here, material was copied, it is necessary to show the necessary
skill, labour and judgment to create a truly new work. It is this for which the
plaintiff contends. None of this is apparent in what occurred. The plaintiff
was not seeking to produce a new work but to show that she knew the story by
reproducing what she had been told as faithfully as possible. It is clear also
that much skill, judgment and labour had been used by Mrs. Cunningham to reduce
these stories to the level where they would be understood by the children.
seems to me unlikely that a six-year-old would be in a position to exercise any
original thought capable of being expressed when her sole purpose was to repeat
the story which had been told to her by her teacher. The finding of the learned
trial judge is that she was endeavouring to repeat what she had been told. She
was reciting the story that she had learned even though she may have used a lot
of her own words. I do not suggest that a six-year-old can never have
independent thought nor exercise sufficient skill or judgment for the purposes
of obtaining a copyright. If the purpose is to copy, then a six-year-old would
there was a clear source of material. The plaintiff told not only the story
which had been told to her by her teacher but also told it in the manner in
which it had been told to her. There can be no copyright in a well known plot
or story because there is nothing original about it even though it may be
unconsciously narrated in different words. In the same way there could be no
copyright in the actual story which the plaintiff recited since that story was
not an original one. The difference between a copy and an original lies in the
treatment of the source material. For example, a biography is the choosing of
elements of the life of the person whose history is being told. Each author
would approach the same facts in a different way. If one author approaches
those facts in the manner in
is not the language which creates the copyright, it is the creativity. In
general originality would relate to the story rather than to the words in which
it is expressed. Yet reducing words to a language which can be understood by
the readers can be original: so the manner in which the language of the Bible
was explained by Mrs. Cunningham can be original.
that the language of the child is different it is still the telling of the same
story in the same way. It does not in so doing change the original nature of
the story nor add anything which is original. The child
it is material that she had been telling these same stories in her own words
for some fifteen years before she taught the plaintiff. It is reasonable to
infer that over that period the stories had changed in two ways. Some
expressions which might not have been readily understood were altered to
achieve this aim and words used by the children in their retelling would have
crept into the version given by Mrs. Cunningham to succeeding classes. It is
reasonable to suppose that that version had crystallised and was very largely
in the language of the children themselves.