COPYRIGHT AND THE SOUND BITE SOCIETY

We live in a sound bite society. The imperatives of marketing and the ubiquitous availability of media technology lead to the ever-increasing production of commercial messages, coined phrases, invented words, and brief opinions expressed instantly. Copyright law, however, originally developed to protect printed books, and is underpinned in Commonwealth jurisprudence by John Locke’s 17 century proposition of property rights deriving from applied labour. This article examines how Lockean theory applies to copyright in the sound bite society. It is argued that, while Lockean theory may not be the most socially beneficial of the major theoretical approaches to copyright, it provides straightforward principles that can be usefully applied to the commercialised and truncated language of contemporary discourse.

technology, contemporary copyright law must also engage with challenging socioeconomic developments.
These developments include the emergence of marketing's pre-eminent role in a consumption-oriented society. 4Indeed, Geoffrey Miller argues that marketing is the most important idea in contemporary business and the dominant force in culture. 5hether or not this predominance is desirable, the law must accommodate the concision and economy of marketing messages.
A second development is a tendency towards truncated communication among language users.As the example of the telegram shows, a technologically determined requirement for compressed communication is not new.However, the truncation of language is a defining feature of many contemporary means of communication: for example, pagers, short message service (SMS), texting and Twitter, which limits the number of characters per 'tweet' (a discreet unit of communication) to 140.
The third, and far broader development, is the proliferation of media made possible, in particular, by Web 2.0 social networking tools: for example, blogging applications, Facebook, LinkedIn, Multiply, MySpace, Twitter, Wikia, and You Tube.Media are now 'global, social, ubiquitous and cheap'. 6Non corporate production challenges traditional media, notably how blogs have to an extent usurped newspapers, but may also augment them: for example, the first news of the 2008 Sichuan earthquake was published on Twitter, and, in Iran after the 2009 election, corporate media representatives, whose activities are easily curbed by government, became reliant on individuals' cell phone video footage. 7'The underlying practice of web 2.0 tools is that of harnessing collective intelligence…As users add new content and new sites, they are connected through hyperlinking so that other users discover the content and link to it, thus the web grows organically as a reflection of the collective activity of the users.' 8 These non-traditional approaches to writing emphasise communal production and use, 9 but clash and interact with traditional producers of copyright materials.Because 'user-generated content and user-generated distribution combines third-party copyrightable works and trade marks with self-written and published 4 N Klein, No Logo (Picador, 1999) 3 observes 'the astronomical growth in the wealth and cultural influence of multinational corporations over the past fifteen years can arguably traced back to a single, seemingly innocuous idea developed by management theorists in the mid-1980s: that successful corporations must primarily produce brands, as opposed to products'.See R Latham, J Brown and C Butzer, 'Legal Implications of User-Generated Content: You Tube, MySpace, Facebook' (2008) 20(5) Intellectual Property & Technology Law 1, 1. 12 Hocking, above n 10, 12-13.The term 'sound bite' often carries a pejorative meaning, but this may be misplaced.Sound bites can be pithy, concise and meaningful, and may represent the product of considerable skill, effort and inspiration.Some, but obviously not all, may be compared to the dogmata (pithy sayings, or philosophical rules of life) of the Classical world.(    In part II, an overview of copyright theory is given, with particular emphasis placed on the Lockean theory of property that is most relevant to Anglo-Australasian copyright decisions.In parts III and IV respectively, statutory and judicial approaches to copyright and literary works are explained.In part V, the general grounds for excluding insubstantial works from copyright protection are outlined. 19In part VI, separate examination of slogans, titles, neologisms, and Twitter tweets, as an example of Web 2.0 tools, is conducted.In conclusion, certain public policy issues that may arise from sound bites attracting copyright are sketched.

II THEORY
Legal theories underpinning copyright in literary works vary greatly between jurisdictions. 20Nevertheless, following William Fisher's classification, the four perspectives that currently dominate theoretical writing about intellectual property are: Utilitarianism, Social Planning Theory, Personality Theory, and Labour Theory. 21Brian Fitzgerald labels the concepts respectively as Economic Rights, Culturally Enriching Rights, Moral Rights, and Lockean Natural Rights. 22) The first two theories are consequentialist, inasmuch as they seek to promote particular ends.The second set is deontological in nature, being predicated on conceptions of natural rights.These theories are outlined below to the extent that they are relevant to original literary works.
A Utilitarianism In the Utilitarian view, governments may create and extinguish all property rights, but, to maximise aggregate utility, should take into account incentives to avoid depressing initiative, justice among different classes of persons, and enlargement of choice and security creation. 23With regard to copyright, authors or publishers are granted protection for the works they produce because such a privilege is for the public good.Since the grant of copyright protection must benefit the broad public, a Utilitarian approach holds the potential for interrupting market-based distributions.Furthermore, since Utilitarianism is founded on the assumption of utility maximisation -a peculiarly human phenomenon 24 -it would be possible to discount the interests of incorporeal corporations, if not their shareholders, from the utility calculus.Needless to say, such human-centric radicalism seems currently implausible, and, despite numerous versions of Utilitarianism, Utilitarian analysis of intellectual property rights is generally associated with Welfarist economics, 25 which is 19 The relevant laws of Australia, New Zealand and the United Kingdom are sufficiently similar to enable general observations to be made, with case law from all three jurisdictions being pertinent.predicated on achieving the social good by maximising aggregate utility, 26 where utility is indicated by consumption preferences in a market context. 27ilitarianism is problematic in many regards.It is unclear 'what kind of sensations or experiences count as a basis of utility', 28 and even prominent economists admit that utility cannot be directly measured. 29Utility-based theories generally fail 'to take seriously the differences between persons', 30 and are 'supremely unconcerned with the interpersonal distribution' of individual utilities. 31As Amartya Sen observes, Utilitarianism is 'a very limiting constraint even when the utility information is very rich', but is 'disastrous when the utility information is poor'. 32Furthermore, Utilitarianism is concerned with the 'end state' or 'current time-slice' principle of distributive justice, where 'all that needs to be looked at, in judging the justice of a distribution, is who ends up with what'. 33Finally, utility-based theories tend to value rights, only to the extent they improve aggregate utility, 34 and this is problematic when universal human rights inform governance. 35Utilitarianism provides a broad justification for granting copyright to authors, but is flawed in the detail, and does not indicate with sufficient accuracy which types of artefact should attract copyright protection.

Social Planning Theory
Like Utilitarianism, Social Planning Theory is consequentialist in nature: the key distinction between the two approaches lies in scope.Whereas Utilitarianism, in its predominant economic form, is aimed at achieving the Welfarist goal of maximum aggregate utility through market distributions, the telos of Social Planning Theory is more ambitious,36 with its proponents being 'willing to deploy visions of a desirable society'. 37Social Planning Theory is the least well established and recognised of the intellectual property theories, 38 but is likely to exert greater influence in the future.How society is imagined is a crucial consideration in an information-based world.As Fitzgerald notes, 'the process of propertizing information must be seen as being and it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property'. 47Using the example of a man who might claim ownership in the acorns he has collected, Locke concluded, 'labour put a distinction between them and common'. 48Property came to subsist in things because men applied their labour to make those things 'useful and beneficial'.This idea may be applied to written artefacts.While words are not owned by anyone, application of sufficient labour to selected words, for example, by arranging them into a poem, may render them 'useful and beneficial', and so transform them into property.As property of the creator (or the person at whose instruction the poem was created), 49 the text deserves protection from unauthorised copying.
A further feature of the Lockean conception of property is the proviso that individual property claims are subject to (unspecified) requirements of distributive justice.Thus Locke posits 'this "labour" being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others'. 50As with Utilitarianism, within Lockean theory, there is ample space -but a space rarely occupied by progressive commentators -for strict proscription of individual property claims in order to maintain a fair share for others in the community.
In addition to the explicit requirement of applied labour, there is an implicit requirement that the product of the labour should manifest certain qualities.It is not enough for a copyright claimant to show that a written artefact originates from the application of a degree of labour sufficient to take the words used out of the common stock.The artefact itself must manifest qualities comparable to the usefulness and benefit that Locke indirectly prescribed.
A Lockean approach to copyright has certain advantages.It focuses on easily demonstrable inputs, such as labour and skill, and does not require courts to assess the degree of creativity applied or the literary merit of a work.Unlike Utilitarian or Social Policy approaches, courts need not engage in utility assessment or balance social welfare issues, which properly fall into the domain of the elected legislature.By focusing on production rather than authorship, this approach reflects commercial realities. 51Furthermore, the idea of literary works as produced texts coincides with currently influential poststructuralist conceptions of literature.However, the Lockean emphasis on individual property rights poorly reflects the necessarily cooperative nature of production, and this blind spot has particular contemporary relevance. 53Like the Welfarist approach, application of Lockean theory may lead to excessive monopolisation of language, which raises acute freedom of speech concerns.While the purpose of this article is to consider whether short items of text may constitute literary works, rather than issues of infringement, the analysis is alert to the broader context of policy and social considerations.

III STATUTE AND THEORY
Ronan Deazley observes that Locke's writings 'loomed large on the political landscape at the same time as the need for a statutory system of copyright protection was being lobbied with Parliament'. 54However, although concerns for individual property rights are implicit in the first copyright legislation, 55 the Statute of Anne 'has a much broader social focus and remit, one that concerned the reading public, the continued production of useful literature, and the advancement and spread of education'. 56Similarly, the United States Constitution empowered Congress 'to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries'. 57Beyond historical antecedents, Keith Garnett et al argue that the purpose of copyright law is to ensure a just reward for just labour, which, in turn, provides stimulus to creativity. 58Statutory measures to grant and limit copyright in literary works are, then, it seems, broadly utilitarian in their express motivation.Authors are granted copyright in their works because it encourages forms of endeavour that benefit society in general.
The 'essential source of original works remains the activities of authors' and various provision of copyright statutes 'fix on "the author"'. 59The conferral of first ownership rights to the author of a work is consistent with Lockean theory (or, indeed, with Personality Theory), 60 but the influence of Locke is most evident in judicial engagement with copyright in literary works, rather than in the text of legislation.Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. 61ese moral rights are consistent with Personality Theory.Commonwealth countries have been slow to include such rights in copyright statutes.Fitzgerald notes that, while Canada has included moral rights in its copyright legislation since 1931, they have not featured prominently in Canadian copyright law. 62Australia, 63 New Zealand, 64 and the United Kingdom 65 now also include moral rights in their copyright legislation, but since these may be contracted away, 66 and commonly are, their inclusion seems to be more in the nature of compliance than fundamental principle.

IV JUDICIAL APPROACHES
Copyright legislation confers copyright protection on original literary works but typically defines the relevant terms vaguely, if at all.No definition is provided for 'original', and the words used to define 'literary work', 76 'do not really constitute a definition'. 77A crucial judicial function, therefore, lies with imbuing these terms with practical meaning.There is broad curial consensus on certain issues.The expression of an idea, not an idea itself, constitutes the 'work' that may attract copyright protection, 78 and if the idea and expression cannot be distinguished, no copyright will subsist. 79Although many literary works will manifest literary merit, 'literary' refers to the manner of written production or possible capture in writing, not the work's aesthetic qualities. 80Furthermore, no element of novelty akin to the inventiveness necessary for the grant of a patent is required for a literary work to be considered original. 81Finally, the work must originate from the author's efforts and not be copied from another work. 82Views diverge on what the author must invest in the work in order to claim originality: is the application of labour sufficient, as Lockean theory implies, or is something more needed?
In the common law world, 83  'creativity' approach.This distinction is most obvious in compilation cases.Not all literary works 'are of the same kind and one must identify and keep in mind the particular kind of work within the Act in which copyright is claimed to exist'. 84evertheless, while this article concerns brief writings and not compilations of data, the originality tests applied to compilations are relevant.
The doctrinaire Lockean test may be characterised as assessing whether a work originates from an author and is more than a mere copy of another work. 85In contrast, while recognising that the 'the originality requirement is not particularly stringent', the United States Supreme Court held in Feist Publications Inc v Rural Telephone Service Co Inc that the work must 'display some minimal level of creativity'. 86Where 'the creative spark is utterly lacking or so trivial as to be virtually nonexistent', a compilation will not, under the creativity approach, attract copyright. 87 Originality is a matter of degree, depending on the amount of skill, judgment or labour that has been involved in making the work…There is no doubt that the production of the source programs in the present case involved sufficient skill, labour and experience on the part of the authors to satisfy the requirement of originality. 93 Sunlec International Pty Ltd v Electropar Ltd, the Auckland High Court identified the proper test as the application of 'more than minimal skill and labour', 94 but then applied a test of 'independent skill, labour and judgment'.95 In Ladbroke (Football) Ltd v William Hill (Football) Ltd each of the Law Lords used different words or combinations of words to identify originality.Lord Reid referred to 'skill, judgment or labour', 96 Lord Evershed to 'skill, labour or judgment', 97 Lord Hodson to 'work, labour and skill', 98 and Lord Pearce to 'labour or skill or ingenuity or expense'.99 In Football League Ltd v Littlewoods Pools Ltd, the criterion of 'labour, judgment or literary skill or taste' was approved, 100 but a test of 'some labour, skill, judgment or ingenuity' applied.101 In sum, numerous decisions, which all ostensibly follow Lockean doctrine, in fact, propose distinctly different tests.However, despite this confusion, and although Desktop Publishing employed a narrow applied labour (and money) test -perhaps an unduly narrow approach 102 -there is a clear tendency for modern cases to require the application of skill and labour.103 In Ice TV, the High Court of Australia observed that the sweat of the brow and creativity tests: have been treated as antinomies in some sort of mutually exclusive relationship in the mental processes of an author or joint authors.They are, however, kindred aspects of a mental process which produces an object, a literary work, a particular form of expression which copyright protects.A complex compilation or a narrative history will almost certainly require considerable skill and labour, which involve both "industrious 93 (1986)  collection" and "creativity", in the sense of requiring original productive thought to produce the expression, including selection and arrangement, of the material. 104iversity of London Press Ltd v University Tutorial Press Ltd, 105 which concerned copying of papers for maths exams, is commonly cited as an archetypal sweat of the brow case.106 However, in his decision, Peterson J observed that the authors have 'proved that they had thought about the questions which they set, and that they made notes or memoranda for future questions and drew on these notes for the purposes of the questions they set'.107 Clearly then, the authors engaged in an intellectually demanding process. The may not have shown traditional, literary creativity but the nature of the mental labour they applied was cognitively comparable to creativity, both requiring 'some independent intellectual effort'.108 Likewise, in Desktop Marketing, while focus was placed on 'Telstra's substantial labour and expenses in performing those activities', 109 'originality in the compilation could be founded on the process of gathering and ordering the data'.110 Decision making with regard to the research to be conducted or how data are to be ordered requires considerable intellectual effort.111 The Court's conclusion in IceTV is, therefore, persuasive, viz: It may be that too much has been made, in the context of subsistence, of the kind of skill and labour which must be expended by an author for a work to be an "original" work.The requirement of the Act is only that the work originates with an author or joint authors from some independent intellectual effort. 112 sum, the Lockean originality test, in its traditional expression, requires a literary work to originate from its author and be the product of more than minimal skill and labour.IceTV usefully generalises the test by requiring the application of 'some independent intellectual effort'.
The discussion so far, has focused on the requisite inputs for copyright to subsist.The quality of the output is also important in the Lockean scheme.In Sawkins v Hyperion, Mummery LJ said a protected work may lack 'novelty, usefulness, inventiveness, aesthetic merit, quality or value … [and] may be complete rubbish and utterly worthless but copyright protection may be available for it'. 113But a unique regard for inputs, without consideration of the artefact produced seems misplaced.Locke implied that certain qualities (usefulness and benefit) should be manifest in the output of applied labour if property rights are to accrue.This requirement is otherwise seen in case law.Thus, a 'grossly immoral' original literary work may not enjoy copyright,114 and a compilation of facts must supply 'intelligible information', so that 'a totally random collection of listings of unrelated pieces of factual information would not be a compilation under the Act'. 115Generally, to attract copyright, an original literary work must manifest certain communicative qualities: these are commonly taken to be 'either information and instruction, or pleasure in the form of literary enjoyment'. 116ce copyright in an artefact has been established, the next practical issue is whether that bundle of rights, notably the right to reproduce the work in material form, has been infringed.Infringement occurs when a substantial part of a work is taken, 117 and is decided on the facts of each case. 118Cornish observes that infringement 'turns as much on what makes the work sell as on any aesthetic criterion', 119 but the key consideration is the quality of the part copied, not merely the extent of copying, 120 and this requires further consideration of originality.An analysis of infringement lies beyond the scope of this article, nevertheless, it is noted that infringement is a crucial practical concern in relation to brief writings because, if granted copyright protection, phrases and individual words, 'the building blocks of culture [c]ould be entombed for many, many years'. 121

V INSUBSTANTIAL ARTEFACTS
Certain written artefacts -titles, slogans and single words -have traditionally been denied copyright protection.(Twitter 'tweets' may be expected to be treated similarly.)The grounds for denying copyright may correspond to basic principles.Insufficient inputs might be applied in producing the artefact, 122 or the artefact may not originate from the claimant's labour.For example, a proverb or cliché, coming from the common stock of language, cannot be said to originate from a particular person. 123An artefact itself may fail to attract copyright protection because it lacks the usefulness and benefit Locke required in an item of property, that is, in relation to literary works, either information and instruction or pleasure in the form of literary expression.Furthermore, the writing may not express an idea or may be indistinguishable from an idea.However, insubstantial artefacts may be denied copyright on grounds inconsistent with basic principles.Before considering specific artefacts, these grounds will be outlined.

A De Minimis Rule
In the recent case of State of Victoria v Pacific Technologies (Australia) Pty Ltd, the High Court of Australia observed that 'short phrases, single sentences and the like' are 'too short to qualify as a literary work' despite 'skill and labour having been expended in their creation. 124While not inconsistent with previous decisions, 125 the argument that an artefact may consist of too few words to attract protection is, in general, unpersuasive.The proper focus lies with the qualities of an original literary work, not on the quantity of its constitutive words.A well-constructed haiku is no less worthy of copyright protection than an epic novel.Laddie et al suggest that where 'the courts appear to be denying protection on the grounds that the resulting matter is too short [,][i]t is better to say that a very short phrase (eg "Splendid Misery") is not a literary work at all regardless of any skill or labour'. 126This may be so, but it is not clear from basic principles why such an artefact 'is not a literary work at all'.As Justine Pila and Andrew Christie observe, 'the courts tend to apply the de minimis principle as a matter of course in cases involving words, titles and phrases without exploring the conceptual basis for such application'. 127While a quantitative de minimis approach provides insufficient grounds for exclusion, exclusion on qualitative grounds is persuasive in principle, if difficult to pin down in practice.Thus Pila and Christie propose a 'test of metaphysical triviality', 128 but this does not seem to fit well with the pragmatism of the applied labour approach.

Lack of Inventive Originality
The originality requirement for a literary work is low. 129And yet, where courts have denied copyright to insubstantial artefacts on the grounds of a lack of originality, 'they have applied a much higher standard than in other areas, one that comes close to requiring "inventive originality"'. 130The proper query should be whether the artefact manifests requisite communicative qualities.Denying an artefact copyright protection because of the absence of creativity as a component of applied labour is inconsistent with the bulk of Anglo-Australian precedent.

C No Idea Expressed
In Exxon Corporation, the Court of Appeal held that a single word such as 'Exxon' 'could not be regarded as a literary work because the latter meant something which was intended to afford the reader either information and instruction or pleasure in the form of literary enjoyment'. 131Pumfrey J plausibly criticised this approach in Navitaire Inc v easyJet Airline Company, and, dismissing such an archaic test, suggested that 'in the end, the question is merely whether a written artefact is to be 124 (2009) 177 FCR 6, [20] (Emmet J). 125  accorded the status of a copyright work having regard to the kind of skill and labour expended, the nature of copyright protection and its underlying policy'. 132(Exxon Corporation concerned the 1956 Act and Navitaire the 1988 Act.) The concept of written words expressing an idea is fundamental to a protected literary work.Without independent meaning, an artefact does not express an idea, and all copyright works are founded on the expression of an idea by the author. 133Therefore, whether one considers the Court of Appeal's reasoning in Exxon Corporation or Pumfrey J's reasoning in Navitaire to be correct, without the expression of an idea, there can be no original literary work.This is the most persuasive ground for finding an artefact inadequate.Even so, the lack of communicative qualities is the determinative ground for exclusion, not the brevity of the writing.A thousand pages of gibberish, which fail to express an idea, should also be denied copyright protection for lacking communicative quality. 134

VI DIFFERENT ARTEFACTS
Sam Ricketson cautions against arbitrary categorisation of artefacts, 135 and yet slogans, titles and neologisms are commonly grouped as 'insubstantial works' despite their radically different natures.It is therefore instructive to consider each type of artefact separately, and to apply Lockean principles to each.

A Slogans
Advertising may be defined as 'the sharing of information about a specific product in the most dramatic, compelling, persuasive and memorable fashion possible'. 136'The task of devising advertising slogans often requires a high level of skill and judgement', 137 and 'it should not be assumed that an advertising slogan, or a title, is incapable of protection as a matter of principle'. 138Despite copyright claimants often expending labour, sufficient in quantity and quality, in the creation of advertising copy, slogans are traditionally denied copyright protection.This may be attributable, in part at least, to modern practices being different from the practices considered by old authorities.
Kirk v Fleming featured an artefact that manifested none of the qualities associated with modern advertising.It is understandable, then, that the court should have observed that the advertising copy -'Good sight is your most valued asset.Avoid the predicament of being without your glasses.Let us make you a spare pair.Broken lenses promptly and accurately repaired' -was nothing more than the stringing together of four ordinary and commonplace sentences. 139Copyright protection was denied, it seems, principally because the artefact was prosaic and dull: this may imply insufficient applied labour or skill, but may also indicate an unnecessary assessment of the literary merit of the output.The slogan 'Beauty is a social necessity, not a luxury' was denied copyright protection on similar grounds. 140Presumably, if the advertising copy had been extraordinary and unusual, or structured in a striking and memorable way -as many slogans are today -the courts' objections to finding a work worthy of protection would have been overcome.
In contrast to the commonly cited cases above, in Cotton v Frost, 141 a dentist's advert, which linked four phrases and pictures relating to desirable teeth with the slogan 'You get all four in one dental plate', passed the applied labour test.Using the terminology of IceTV, it may be said production of the work required some independent intellectual effort.More recently, in Sunlec International Pty Ltd v Electropar Ltd, 142 the Auckland High Court was required to determine, inter alia, whether copyright subsisted in the slogan '"Field Friendly" -the best choice for field work'.The Court followed a doctrinaire Lockean approach and conducted an inquiry into the 'circumstances in which the slogan was evolved and has been created', based on the premise that, provided 'independent skill, labour and judgment have been involved in its creation such that it satisfies the requirement of originality' and 'conveys information, instruction or pleasure', the artefact may attract copyright protection. 143n reaching his conclusion that the slogan did indeed attract copyright protection, Wylie J found that 'independent skill, labour and judgment' had been applied; the artefact originated with the plaintiff. 144e words 'Help-Help-Driver-in-Danger-Call-Police-Ph.000'(the Help Words) were the subject of a recent copyright claim heard by the Federal Court of Australia.The Court denied the existence of copyright in the Help Words, on several grounds, the most persuasive being that they were no distinguishable from the idea they expressed and they did 'no more that state the obvious words for use in drawing attention to a taxi driver requiring urgent attention'. 145Unlike the slogan considered in Sunlec, it cannot be said that independent intellectual effort had been applied.

B Titles
Book titles and similar artefacts do not generally attract copyright protection in their own right. 146They may be properly excluded from insufficiency of applied labour, but, other, less persuasive grounds may be given.J). 144 Ibid.However, it seems the Court could not resist passing comment on the literary worth of the slogan, with Wylie J unnecessarily observing 'although the language used is taken from the common stock of the English language, the slogan uses language in a succinct and relatively memorable way' and was not hackneyed.'a hackneyed expression, and Monte Carlo an obvious place for this to happen. 147eversing the argument, provided other criteria were met, presumably the Court would have found the title to be capable of attracting copyright if it had been novel and non-obvious.Even so, a requirement of novelty is inconsistent with basic principles.
Lord Hodson noted in Ladbroke (Football) that, a situation where headings were elaborate and given each case in English, French, German and Spanish, provided precedent for titles attracting copyright protection. 148In a more recent decision, the Scottish Court of Sessions granted an interim interdict to prevent hypertext linking to unexceptional headings on a newspaper's website, partly on the grounds that the headings constituted literary works. 149However, it is doubtful whether this case represents a radical shift in the judicial approach to titles.The decision was influenced by a concession by the defence that a headline could constitute a literary work. 150nternet technology may raise particular issues that militate against drawing general conclusions,151 and David Harvey concludes 'the question of copyright in a hypertext reference itself, either as a literary work or as a cable programme has not arisen'. 152like, slogans and single words, titles may be excluded because they are not considered discrete artefacts.This may be a legacy of pre-1911 legislation, which protected 'books', rather than literary works.However, a similar perception -a title is not a discrete work worthy of copyright protection -may inform both the omission of titles from the definition of book before 1911 and the judicial exclusion of titles from original literary works when interpreting later legislation.
In the contemporary entertainment world, it is implausible to suggest that significant skill and effort do not go into creating titles.Like advertising slogans, titles convey information in an immediate way; they must, for example, suggest genre, and catch the attention of the causal observer.Being capable of constituting discrete units of communication, a title may plausibly express an idea without the need for further contextual information. 153Reuben Stone observes 'in the motion picture industry, titles have been treated as commodities to be bought and sold like any other.It is not unknown for a film company to purchase what it regards as the rights to a title alone quite independent of the work from which it is derived'. 154So, at least with regard to film titles, the law seems to be incompatible with commercial practice. 155While basic principles should be applied to any putative literary work, titles are, in practice, distinguishable from other artefacts inasmuch as they normally form part of a greater work 'and the issue here may be whether the copying of the title amounts to the taking of a substantial part of the whole work', 156 and this 'will almost invariably not be the case'. 157But this is a matter of infringement, not subsistence of copyright.

C
Single Words Words in the common stock of language are analogous to natural objects in the Lockean original state in the sense of not being individually owned.But, unlike the bounty of nature, words result from countless human interactions and forms of cooperation over generations and between different linguistic groups. 158Language radically informs human ontology: as Ludwig Wittgenstein observed, 'commanding, questioning, recounting, chatting, are as much part of our natural history as walking, eating, drinking, playing'. 159It seems, therefore, language is of such social importance, that sufficient labour could never be applied to a word in common currency to create an individual property right.
Use of a common word (or phrase) cannot be said to be original either in the technical sense of having originated with the claimant or in the layperson's understanding of being novel.In sum, other than meeting the requirement of being written, it seems that a property claim over an existing word in the common stock of language will comprehensively fail on every ground, and even the remotest possibility of copyright protection must be dismissed. 160

Commercial Neologisms
Commercial neologisms, such as 'Exxon' or 'LePacer',161 may meet the applied labour criterion and originate with the copyright claimant.However, when read alone, the words lack meaning; they fail to express an idea, and so may not attract copyright protection.In other cases, the neologism may amount to nothing more than the unimaginative conjunction of two commonplace words, along with upper case midway through, for example, 'ClickHere'.However much application of labour and skill or judgment is claimed, the insubstantial nature of the output implicitly refutes those claims.Despite these hurdles, if an invented word were able to express an idea, (other requirements having been met) it should, in principle, attract copyright protection.
In Brodel v Telstra Corporation, the Federal Court of Australia, having regard to various decisions,162 held 'there is no tenable claim that the word ''SmartFax'' constitutes an original literary work in which copyright is capable of subsisting'. 163hile it is not proposed that 'SmartFax' should attract copyright, the relevance of the authorities cited may be questioned.As noted, in Francis Day, the song title in dispute failed to attract copyright protection because it was considered hackneyed and obvious.The artefact itself was insufficient because it was a cliché, and individuals may not claim clichés anymore than they may claim single words in the common stock. 164The same reasoning seems to apply to the television programme 'Opportunity Knocks' in Green v Broadcasting Corporation of New Zealand.In contrast, as an invented word, 'SmartFax' is not hackneyed.In Sullivan, copyright did not subsist in 'Somewhere in the Whitsundays' and 'The Resort that Offers Precious Little' because insufficiency of inputs. 165This may also be true of the authorship of 'SmartFax', but the court did not expressly assess the sufficiency of the labour applied.Besides, in the corporate world, it is plausible that a great deal of labour may be invested in creating an unimpressive written output.
Exxon Corporation was most relevant in Brodel because, in the former case, copyright was denied on the grounds that the artefact lacked requisite communicative qualities ('either information and instruction, or pleasure in the form of literary enjoyment').But, unlike the word 'Exxon', which manifests no obvious communicative qualities, it is arguable that 'SmartFax' may communicate an idea to the extent that it connotes a facsimile machine that performs supranormal functions.When Lockean principles are applied to 'SmartFax', as they were to a slogan in Sunlec, the possibility of commercial neologisms attracting copyright protection is intimated.A general problem, however, seems to lie with that fact that commercial neologisms are often proxy or quasi-trade marks.
In principle, the availability of trade mark registration is no bar to concurrent copyright protection. 166Nevertheless, in practice, literary works do not qualify as trade marks, and vice versa, although it is eminently plausible that copyright protected artistic works may also be registered as trade marks. 167Certain writings may not be protected under either copyright or trade mark legislation, 168 but trade mark law may allow short phrases, and even a phrase that is a component of a longer mark, to be registered. 169Literary works and trade marks are normally incompatible because they perform different communicative functions.Trade marks signal associations with products that 'facilitate the identification of merchandise by members of the public'. 170Unlike an original literary work 'a trade mark is not protected for its own intrinsic worth, but for the intangible values surrounding the product and attaching to the mark'. 171While a trade mark will perform an advertising function, its principal functions are to identify and distinguish, not to communicate an idea.This is why invented words may be registered as trade marks.Following TRIPS, 172 a trade mark is typically defined in legislation in terms of a 'sign', but the traditional 'mark' better implies the rudimentary nature of a trade mark as a communicative device that originated in pre-literate societies.Literary works are discrete artefacts, which must independently communicate an idea, and therefore may be said to operate at a 'higher' cognitive level than trade marks.
Trade mark monopolies do not endanger the common stock of words.If a word from the common stock, such as a person's family name, is granted trade mark registration, only the particular form of the graphical representation is monopolised, not the word itself.Despite using language, such a trade mark is properly seen as an artistic work, rather than a literary work.The crucial distinction between artistic and literary works lies with the infinite ways in which a message may be expressed by different artistic 166  techniques, but the finite ways in which a particular meaning may be communicated by a word.
The essential purpose and qualities of a trade mark are, then, generally incompatible with the purpose and qualities of an original literary work.An invented word, such as 'Exxon', while eminently suited for trade mark registration, does not meet the requirements for copyright protection.To generalise, a neologism is only likely to qualify for copyright protection if it is not a trade mark substitute.
Without losing sight of copyright law's emphasis on origination, rather than invention, neologisms are distinguishable from existing words inasmuch as they constitute potential additions to the common stock of language.Thus people Hoover their carpets, use a Kleenex when they sneeze, and Google to find information.While it may seem niggardly to expect to own a word, in the commercial context, it is unlikely that a firm would seek to prevent everyday use of its name since acceptance into the common stock of words appears to be the ultimate in free advertising. 173resumably, then, the ExxonMobil Corporation would be not be moved to litigation if it were common parlance to 'put Exxon in one's tank'.But, adoption of commercial neologisms by ordinary language users is exceptional.Normally, a firm seeks to assert copyright over a neologism against competitors in lieu of or in addition to trade mark or passing off protections.The pressing issue is not monopolisation in order to exclude ordinary language users,174 although this should not discounted, rather it is preventing other firms from benefiting from the claimant's efforts.Where the only persons interested in the use of an invented word are rival firms, public policy concerns are less urgent.However, when corporations aggressively protect their valuable brand identities, freedom of expression may be a real concern.Stone observes: The fear is that invented words could, in both a metaphorical and literal sense, be banned from the dictionary and that even existing words might, in effect, be rendered unusable through inclusion in newly protected literary phrases. 175

Creative Neologisms
Creative neologisms are more likely to attract copyright protection than words invented for purely commercial purposes, since they are not generally trade mark substitutes.Furthermore, being ill equipped to assess the quality of literary inputs, courts may be reticent to deny the communicative qualities of a creative neologism.
Aram Saroyan, a critically acclaimed avant-garde poet, specialises in creating minimalist artefacts, including the one word poem 'lighght'. 176The word originated with the poet, and could not be considered hackneyed or commonplace.Indeed, Saroyan won a National Endowment for the Arts poetry award for the poem.This single, invented word expresses an idea, however inaccessible that idea may be to the non-poet.(The limited scope of an audience capable of understanding the word does not appear to be an issue, 177 provided some form of 'interpretative community' for his work exists. 178) Given the critical acclaim of his peers, it is highly unlikely that a court would deny copyright protection to Saroyan's minimalist artefacts.Despite his work reducing concision to what some may regard as its point of absurdity, it appears to satisfy Lockean requirements for copyright protection.
If it is plausible that a word invented in the pursuit of high art may attract copyright protection, could a less elevated, and hence more commercially significant, neologism attract copyright?This possibility has been presented in a recent reprise of a Francis Day style dispute.'Californication' is the title of a song and album released by the Red Hot Chilli Peppers, an alternative rock band, in 1999. 179It is also the title of a comedy drama first broadcast in 2007. 180The Red Hot Chilli Peppers have sued the producers of the television show for breach of trade mark and, inter alia, for passing off -but, not copyright infringement. 181It is submitted that a claim for copyright infringement based on Lockean principles would also be plausible.
The first two criteria of labour and origination are not problematic.It seems likely that the band members applied skill, labour and judgment, and the word originated with them.The artefact cannot be described as hackneyed, and, although it is derived from two words in the common stock, is memorable.Crucially, unlike 'Exxon', the word 'Californication' possesses communicative qualities.It effectively expresses the idea of California being a place of sexual licence, a central motif of the band's oeuvre.Likewise, the television shows features a character who moves from the East to the West Coast of the United States and engages in promiscuous behaviour.It may be assumed that title was chosen because it immediately conveys ideas of place and behaviour.Of course, the traditional aversion to titles might undermine any argument for copyright protection.

D Single Words in Computer Programs
So far, this discussion has considered words as units of communication between human beings, 'signs' in the terminology of semiotics.Signs comprise the 'signifier' (the name given to a thing or phenomenon) and the 'signified' (the thing or phenomenon signified). 182Based on previously established social convention, a sign stands for something else. 183In a computer program, a particular configuration of letters (word) may be a sign in this sense, that is a socially agreed means of denoting a thing or phenomenon, but, alternatively, it may be a command to the machine.William van Caenegem argues 'where a word is not part of a known language, ie is invented by an author, there seems little doubt that it may be original in copyright terms'. 184However, invention is not the appropriate consideration here.As with any other neologism, which performs the function of a unit of human language, the fundamental question is whether the item manifests sufficient communicative qualities; and, invariably, invented words do not have independent meaning.
As an instruction from a programmer (or computer) to a computer, the principal question is whether the configuration of letters, which has the appearance of a word, constitutes a computer program, an artefact which has, perhaps bizarrely, been included as a literary work. 185A discussion of this issue is beyond the scope of this article.Nevertheless, as a general rule, a single 'word' instruction, because it is unlikely to constitute a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result, will not constitute a computer program. 186

E Tweets
Twitter is a free social networking and micro-blogging service that enables its users to send and read each other users' updates (tweets).Tweets are text-based posts of up to 140 characters, displayed on the author's profile page and delivered to other users (followers) who have subscribed to them.Users can send and receive tweets via the Twitter website, Short Message Service (SMS) or external applications. 187While there is increasing awareness of Twitter's social and political impact, 188 little discussion has taken place about its copyright impact.In a blog, Jonathan Baily argues: Twitter's 140 character limit makes it difficult, though not impossible, to post a work that reaches the standard for copyrightability…the majority of items posted to Twitter would not likely be seen as "original works of authorship".They are simply too short and don't usually reach the requisite level of creativity. 189owever, from the discussion presented so far, it should be clear that, in a Lockean world, neither brevity nor lack of creative spark are barriers to copyright protection.In practice, given the motivation of those involved in social networks, it is unlikely that many Twitter users would have an interest in asserting copyright over their tweets. 191However, users whose reputations are derived from their ad-libs and improvisations would almost certainly have such an interest. 192Comedian, Stephen Fry, whose tweets are described as 'the quintessential British wit, full of pithy oneliners and bags of personality ', 193 has more than half a million followers. 194There can be little doubt that his tweets meet the requirements for copyright protection from a Lockean -arguably, from any -theoretical perspective.

VII CONCLUSION
Lockean labour theory provides the analytical basis for ascertaining whether an artefact is an original literary work.Refining the Lockean test that has unfortunately been expressed in many different ways, it may be said that any written artefact, whose creation involves the application of independent intellectual effort, should attract copyright, provided the artefact sufficiently expresses an idea.The brevity of the writing is not, in itself, a proper consideration, and the general aversion for copyright to subsist in short texts is misplaced.However, this argument that certain truncated communications, such as tweets in which intellectual effort has been invested, ought to attract copyright, does not imply that copyright should subsist in all brief writings.Clichés, thoughtless advertising copy, neologisms that lack independent meaning and sentences that are indistinguishable from the ideas they purport to express have all been rightly denied copyright in the past and should continued to do so.But, in the age of the sound bite, copyright must take cognisance of the different ways in which intellectual effort may be applied to language.
Although Locke's applied labour proposition principally relates to the justification of individual property rights, his proviso that enough of the same should be left for others, subjects such rights to distributive justice imperatives, and may be seen as anticipating the public policy considerations that loom large when the potential for monopolising words and phrases is raised.This is essentially an issue of infringement, which lies beyond the scope of an article concerning subsistence of copyright.However, some points for further exploration may be made.
If the law is to accommodate copyright claims for the sound bites that are ubiquitous in contemporary society, then, a clearer statement needs to be made regarding maintenance of freedom of speech.It is insufficient for the courts to dismiss such 191 Andrew Sullivan, an influential writer and blogger, has collated tweets from users caught up in post-election turmoil in Tehran.While Sullivan asserts his own copyright in the 'anthology', no obvious consideration is given to copyright in the component tweets.concerns on the grounds of an implied licence as the Court of Appeal appeared to do in Exxon Corporation, suggesting 'I attach little weight to the first submission [of the amicus curiae regarding freedom of speech], because…the plaintiffs have clearly impliedly licensed the world to use this word properly'. 195But freedom of speech implies the right to use a word improperly, not only as its 'owner' prescribes or permits.Besides, any such licence might be prone to revocation at short notice, for example, in response to criticism. 196A licence to use a word or phrase should be construed as irrevocable as far as 'proper' use is concerned.This further requires a delineation of what might constitute improper use: this might include competing with the author or appropriating the work for a direct commercial benefit.
It may be 'impossible to define what is "fair dealing" … after all is said and done, it must be a matter of impression ', 197 nevertheless, the courts should also define fair use of a work that is comprised of one or a few words.For research or study, criticism or review, parody or satire, reporting news, and, more generally, for public discourse, the curial impression gained should be that quoting the full work is inevitable and fair.Authors (or producers of text) should not be denied copyright simply because their works are brief, but, in granting such rights, the courts must establish robust means of protecting freedom of speech.

18SeeH
Laddie et al, The Modern Law of Copyright and Designs (Butterworths, 3 rd ed, 2000) 65-6 for a list of mundane writings that have been granted copyright protection.

23A
Ryan, 'Utility and Ownership' in RG Frey (ed), Utility and Rights (1984) 175, 188-9.24 Some utilitarians extend the utility calculus beyond humans.See, for example, P Singer, Animal Liberation: A New Ethics for our Treatment of Animals (Random House, 1975) 1-3. 25 W Landes and R Posner, The Economic Structure of Intellectual Property Law (Belknap Press of Harvard University Press, 2003) provides the pre-eminent treatise on an economic analysis of intellectual property rights.
Canadian and United States decisions are generally referred to as points of comparison.
What form of wealth could belong to a man, if not a work of the mind...if not his own thoughts…the most precious part of himself, that will never perish, that will immortalize him?40Because the Personality Theory motivation for copyright is derived from a conception of 'the Author as Romantic Hero, whose works are an expression of individual personality of peculiarly high order', 41 it privileges creativity and aesthetic value in a way that may appear anachronistic, even historically inaccurate.42Nevertheless, 26A Gewirth, The Community of Rights (University of ChicagoPress, 1996)134.27 J Stiglitz, Economics of the Public Sector (W W Norton & Company, 3 rd ed, 2000) 63. 28 I Hampshire-Monk, A History of Modern Political Thought: Major Political Thinkers from Hobbes to Marx (Blackwell, 1992, 2003 reprint) 318.29 Stiglitz, above n 27, 63. 30 M Sandel, 'Introduction' in M Sandel (ed), Liberalism and Its Critics (1984) 1, 3. 31 A Sen, On Economic Inequality (Oxford University Press, expanded edition, 1997) 16. 32 A Sen, 'Personal Utilities and Public Judgements: Or What's Wrong with Welfare Economics?' (1979) 89 Economic Journal 537, 554.38 Indeed, Fisher, a leading proponent of Social Policy Theory observes that commentators with similar views to his own do not agree on a name for the theory.Ibid.
The long title of the Copyright Act 1710, 8 Anne, c 19 was 'an Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned'.
The Statute of Anne protected books and writings: the scope of protection has widened since then in accordance with advances in technology and the growth in the commercial significance of different types of writings.The term 'book' was defined in 1842 United Kingdom legislation as meaning and including 'every volume, part or division of a volume, pamphlet, sheet of letter-press, sheet of music, map, chart or plan separately published'.program'.73TheCopyrightAct1968 (Cth) is based on the 1956 Act, but has been updated to accommodate technological developments so that the definition of 'literary work' currently includes '(a) a table, or compilation, expressed in words, figures or symbols; and (b) a computer program or compilation of computer programs'.74AllNew Zealand copyright legislation has been derived from the United Kingdom, 75 with the current Copyright Act 1994 (NZ) being based on relevant parts of the 1988 Act.
67However, the Berne Convention, which the United Kingdom signed in 1886, contemplated a wider definition of 'literary work',68and consequently the Copyright Act 1911 (UK), which became the model for copyright statutes across the British Empire, provided protection for 'original literary works'.69Byvirtue of the Copyright Act 1912 (Cth), the 1911 imperial Act, subject to technical amendments, applied in Australia until 1969.The term 'literary work' was not positively defined, but included 'maps, charts, plans, table and compilations'.70Asimilarformulation was followed by a 1956 statute, 71 which provided copyright protection to any original literary work.Once more, 'literary work' was not defined but included 'any written table or compilation'.72Thecurrent,1988UnitedKingdom Act defines a 'literary work' as 'any work, other than a dramatic or musical work, which is written, spoken or sung' and includes '(a) a tableor compilation, and (b) a 61 Berne Convention for the Protection of Literary and Artistic Works (Paris text 1971) signed 9 September 1886, art 6bis(1) (entered into force 5 December 1887).computer After a comprehensive analysis of English and Australian authorities, a requirement of creativity was roundly rejected in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd, 88 which, like Feist, concerned the originality of a telephone directory.Somewhere in the Whitsundays',91and, in the immediately following paragraph, held that 'the Resort that Offers Precious Little' 'did not involve the required degree of judgment, effort or skill'.92Similarly, in Computer Edge Pty Ltd v Apple Computer Inc, the High Court of Australia held: While Canada may have moved towards a Feist-style creativity test in Tele-Direct (Publications) Inc v American Business Information Inc, 89 in CCH Canadian Ltd v Law Society of Upper Canada, the Supreme Court of Canada concluded that 'the correct position falls between these extremes' of sweat of the brow and creativity, that is:What is required to attract copyright protection in the expression of an idea of an idea is an exercise of skill and judgement.By skill, I mean the use of one's knowledge, developed aptitude or practised ability in producing the work.By judgement, I mean the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible option in producing the work.90However, it is not obvious that a hybrid test is necessary or helpful.What seems necessary and helpful is clarity on what the Lockean test requires.In Sullivan v FNH Investments Pty Ltd t/as Palm Bay Hideaway, the Federal Court of Australia used a test of 'judgment, effort and skill' in deciding whether copyright subsisted in the slogan '87 Ibid.88 (2002) 119 FCR 491, 532 (Lindgren J).89 154 DLR (4 th ) 328. 90 2004 SCC 13, [16] (McLachlan CJ).91 [2003] FCA 323, [112] (Jacobson J) (emphasis added).92Ibid.
In IceTV, which concerned television schedules, while The Court's analysis of originality and subsistence of copyright was limited because IceTV had admitted that Nine Network's weekly schedule was an original literary work, but noted 'the need to treat with some caution the emphasis in Desktop Marketing upon "labour and expense" per se and upon misappropriation'.See IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458, [196] (Gummow, Hayne and Heydon JJ).
In Francis Day & Hunter Ltd v 20 th Century Fox Corporation Ltd, the song title 'The Man Who Broke the Bank at Monte Carlo' was denied copyright protection because 'break the bank' was considered to be Industrial Property 102 cited in S Ricketson, Intellectual Property: Cases, Materials, and Commentary (Butterworths, 1994) 894.Compare with Trade Marks Act 1995 (Cth) s 17, definition of 'trade mark'. 171J McGrath, 'The New Breed of Trade Marks: Sounds, Smells and Tastes' (2001) 32 Victoria University at Wellington Law Review 277, 281. 172Trade-Related Aspects of Intellectual Property Rights, WTO Doc WT/GC/W/302 (1999).