The Creativity Test and the "Effort" Test in the Issue of Copyright- An Update from Court

Adv. Hila Wohlgemuth, Adv. Gill Nadel

The appellants manage the football leagues in Britain and each year they hold a tournament in which the teams in each league play against each other. One of the appellants is a corporation which was established for commercially using the games in these leagues and for making a profit from managing the league, mainly from selling tickets for the games and holding their broadcasting  rights. After finishing the task of setting the games, each league publishes an annual game schedule listing the order of the games, their dates, and the locations of the matches.

The respondent is the only corporation in Israel authorized to conduct gambling on sports games. Among her activities, the respondent arranges bets on football games of the British  leagues, and for that she uses the  game schedule boards  for the gambling forms.

According to the appellants, the game schedule boards constitute a literary creation protected by Israeli law, and thus its  use by  the respondent  for the purpose of gambling, constitutes a violation of their (the appellants) copyrights, and  the  profits made  from these bets are also  an  unlawful gain on  their expense.

The Supreme Court ruled that among the considerations that should be taken into account when dealing with recognition of copyrights, the important ones in our case are the "Creativity" test of the creation and the "Effort put into it"  test.

"The Effort put into it" approach: According to this view, since it is unfair to allow a person to enjoy the fruits of another man's labor without permission or consideration, it is therefore necessary to consider the author's  Effort  in his  creation to determine whether or not  the Requirement of Originality is met .

"The Creativity" approach: The effort put into The Creation   does not promise that the creation contributes in any way to society, and therefore, this approach  focuses on the quality and nature of the Effort put into the creation , rather than its quantity.

As a rule, these two tests do not set a high standards for those wanting to protect their creations with copyrights.  The Israeli court of law clarified by verdict the question of importance of these two tests as well as the relation between them. According to it, the protection of copyrights stands if the following conditions apply- there is a minimal amount of creativity, and the person attempting to protect his creation can show he meets the demands of   both tests. Large amounts of effort can not compensate for lack of creativity and vice versa. Finally, since the Effort Test does not generally raise problems in succeeding, the Creativity Test is the one that will in the end determine whether the creation meets the originality requirement of the law.

The Effort and Creativity tests examine two central characteristics in a literary creation of a "collection"  type: the way in which the creation's data was chosen and alternatively, in which order were they arranged and how they were designed in the creation itself.

The game schedule boards include all the football games played in the yearly tournament and only these games. The information on each game on the schedule boards includes the names of the teams playing, and the date and location of the match. The games are chronologically arranged, according to their date and hour. Next to each date the name of the home team appears and then the letter V (verse), and after that the name of the visiting team. Finally, in brackets, the location of the game appears. The entries on the schedule board   are written in columns without any special design or arrangement.

The Supreme Court ruled that the Effort test is not an obstacle in our case. On the other hand, the creativity test is not met neither in the selection of data included in the tables nor in the way they are organized. The court emphasized that checking the existence of originality is relevant here, only for  the process of the creation of the "collection"  itself. All Creativity and Effort shown  in the tournament layout is by no means  relevant to the originality requirements of our case. Considering  them would be like considering  a request from a phonebook company's to recognize not only their  creativity and efforts invested in preparing the layout of their clients'  phonebook, but also    the actual installation of  the telephone infrastructure and its connection  to the clients .

The same conclusion   was reached regarding the layout  and design of the  information about the league games. It seems that the most logical way (though not the only logical way) to present all the league games taking place in a football tournament, is in the order presented on the schedule boards , which are far from being unique or having any  individual  expression, and according to the tests mentioned above , the layout of the information was also   lacking in the   required creativity measure necessary for  the originality requirement.

Therefore by Israeli law, any use can be made of the data on each game, and on the game itself (as they are not protected data)- on the details of all the games together as one unit (since the manner of choosing the games is not protected), and in  the way the games are presented on the schedule boards (since the schedule design is also unprotected)-  all without any need to receive permission or pay  the appellants.

The court added that even if  the tables had met the originality requirement both in terms of effort put in to them and in terms of their creativity, this would not have been enough for the action to be accepted, since the respondent did not copy or publish them. It used only the facts presented in the collection, which as said is not protected. Further more, the design of the tables in which the respondent published the game data was fundamentally different from its layout on the schedule.

Similarly, the court rejected the claims of the appellants on the subject of unlawfully gain. The court did not find there to be unfair competition, since to begin with  there could  not be any  competition between the respondent and the appellants (by law). The court ruled that the behavior of the respondent was not invalid, even according to the wide test of good faith, and added that it was not impossible that the organizing of  bets even increases the awareness of the British league footballs games in Israel.

CA 8485/08 The FA Premier League Limited v. The Counsel for Organizing Sports Betting

Article Source: http://www.articlesbase.com/copyright-articles/the-creativity-test-and-the-effort-test-in-the-issue-of-copyright-an-update-from-court-4361842.html

Gill Nadel - Born in Israel in 1969, graduated from Bar Ilan University`s Faculty of Law (cum laude) and from the Department of Musicology. He also has a master`s degree in law from the same institution. Member of the Israel Bar since 1999. Speaks Hebrew, English and Polish. Fields of expertise: Commercial and Business Law, International Trade Law, Import and Export Law, Intellectual Property Law, Maritime and International Forwarding Law, Litigation and Court Representation. Adv. Nadel serves as a teaching assistant of Dr Arie Reich of Bar Ilan University, an international trade law specialist. Adv. Nadel provides lectures on international trade law and import and export law to in courses organized by the Bar Ilan University Center for Commercial Law, Israel Bar, Israel Chambers of Commerce, Manufacturers Association of Israel, Israel Export Institute, Customs Brokers Association, International Forwarders, and more.

What is Respondent conditioning previously referred to as Classical Conditioning?  Well within an organism there are two types of reflexes, unconditioned reflexes and conditioned reflexes. An unconditioned reflex (UR) is unlearned and occurs unconditionally, whereas a conditioned reflex (CR) is acquired and considered impermanent .An unconditioned reflex consists of an unconditioned stimulus (US) and an unconditioned response (UR).  An unconditioned stimulus is something that when presented evokes a natural, unconditioned, response,  such as blinking when air is pushed towards the eyelid or sweating when stressed or scared. Unconditioned reflexes are important for an animal's survival.  Freeze dried liver offered to a dog is an example of a US and the dog drooling is an example of the resulting UR.

A conditioned reflex occurs when a conditioned stimulus (CS) creates a conditioned response (CR).  This is a learned response to a given set of conditions occurring in the environment.  Pavlov recognized that any stimulus could become a conditioned stimulus when paired repeatedly with an unconditioned stimulus.  Respondent conditioning takes place when an unconditioned stimulus that elicits an unconditioned response is repeatedly paired with a neutral stimulus. As a result of conditioning, the neutral stimulus becomes a conditioned stimulus that reliably elicits a conditioned response. Each single pairing is considered a trial. With respondent conditioning the presentation of the two stimuli, neutral and unconditioned, are presented regardless of the behavior the individual is exhibiting. The behavior elicited is a reflex response.

With Operant Conditioning there are four types of operant learning, defined as such because the behavior operates on the environment.  Two of the quadrants of operant conditioning strengthen behaviors, referred to as reinforcements. The other two of the operant conditioning quadrants weaken behavior, referred to as punishments. The quadrants are referred to as a negative reinforcement, positive reinforcement, negative punishment and positive punishment.  The terms positive and negative do not describe the consequence, they indicate whether a stimulus, has been added (positive) or subtracted (negative) to increase or weaken the preceding behavior.

Both positive and negative reinforcement increase the strength of the behavior due to its consequence.  With positive reinforcement the behavior is followed by the appearance of or an increase in the intensity of a stimulus. The stimulus is called a positive reinforcement as it is something the subject seeks out therefore it reinforcers the behavior that precedes it.  With negative reinforcement the behavior is strengthened by the subject's ability to avoid or escape an aversive stimulus, thus negative reinforcement is sometimes referred to as escape-avoidance learning. An experience must have three characteristics to qualify as reinforcement.  The behavior must have a consequence, the behavior must increase in strength and the increase in strength must be a result of the consequence (Chance 2008 p 127).

As behavior is the function of its consequences and whereas reinforcement strengthens the likelihood of a behavior then punishments reduce the strength of the behavior. Punishers are aversives and something a subject works to avoid. When an aversive event is added to a situation then positive punishment has taken place. Negative punishment subtracts something from the situation, like privileges, and is sometimes called penalty training.  Experiences must have three characteristics to qualify as punishment. First, the behavior must have a consequence, second the behavior must decrease in strength and finally the reduction in strength must be a result of the consequence (Chance 2008).

The techniques used for changing behavior are either operant conditioning techniques or respondent conditioning techniques. Respondent conditioning techniques are used for addressing conditioned emotional responses for example behaviors such as fear, panic or anxiety that are controlled by the autonomic nervous system. Operant conditioning techniques are used for changing operants, which are behaviors that are controlled by their consequences.

Respondent conditioning techniques for changing behavior focus on the antecedents in the operant scheme, the stimuli, setting events and motivating operations that contribute to or elicit the problematic conditioned emotional responses and the operants they motivate.   Respondent conditioning techniques and procedures used for changing behavior are a combination of, a) In vivo systematic desensitization where the animal is systematically and gradually exposed to the problem stimulus while maintaining the animal below the conditioned emotional response threshold, b) counter conditioning a type of exposure therapy where the problematic conditioned emotional response is replaced with a more desirable or appropriate response and c) attention exercises that promote relaxation by redirecting the animal's focus (O'Heare 2009).

In contrast to respondent conditioning, operant conditioning behavior change techniques change the operants by controlling the postcedents and affecting those that have an effect on the behavior, i.e. the consequences. Operant conditioning takes place when a response in a given situation is reliably reinforced; there is a contingency between the response and the reinforcer.  Shaping behaviors and differential reinforcement are operant techniques for changing behavior that focus on developing appropriate target behaviors, referred to as the constructional approach (O'Heare 2009). The application of positive reinforcement, negative punishment, negative reinforcement and positive punishment are all procedures that can be used to affect and change behavior with or without extinction trials. The least aversive and invasive operant conditioning behavior change techniques, shaping and differential reinforcement, also positively affect respondent behaviors (Miltenberger 2004).

Bibliography

Chance, P. (2008) Learning and Behavior, Wadsworth Cengage Learning

O'Heare, J. (2008) Behavior Change Programming and Procedures 2009, CASI,

Miltenberger (2004) Behavior Modification Principles and Procedures Third Edition, Thompson. USA

Article Source: http://www.articlesbase.com/pets-articles/what-are-operant-and-respondent-conditioning-and-how-do-we-use-them-to-change-a-dogs-behavior-1294694.html

Niki Tudge is the President of The DogSmith, America's Dog Training, Dog Walking & Pet Care Franchise. Niki holds numerous certifications and diplomas for dog training, dog behavior counseling, business management and people training. CPDT –KA, E-Nadoi, CBC, AABP- PDT, DIP. ABT, Pet Care Services CPCT, CAPCT, AKC "CGC" Evaluator, TS1, TS2 & TS3

Niki is a professional member of The Association of Pet Dog Trainers, The National Association of Dog Obedience Trainers and the Association of Animal Behavior Professionals.

You can reach Niki via email at NikiTudge@DogSmith.com

To learn more about joining the DogSmith visit http://www.DogSmithFranchise.com