In the Meltwater case the Court of Appeal held the intellectual creation standard
was the correct test for originality. Despite a change in terminology, it was held despite
the Infopaq ruling that the existing UK test had not been modified, ‘the test of quality
has been re-stated but for present purposes not significantly altered by the Infopaq case I
say that in the knowledge that the decision may sit awkwardly with some provisions of
English law’ and ‘the long established rule under domestic law... for originality did
not connote novelty or merit but meant that the work had to have originated with the
author, was unaffected by European jurisprudence’. McDonagh supports this
suggestion concluding, ‘even if the originality standard had been altered by Infopaq, the
classic understanding of originality, as discussed in Sawkins would arguably still be
highly relevant’
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. Therefore a substantial change to originality does not appear to have
occurred87and the Infopaq decision does not signify a transition to an instrumentalist
approach. Even if adopted outright the impact of the intellectual creation standard
would be minimal, in the Infopaq case itself it was stated the standard was very
generous and even parts of sentences could be protected, ‘certain parts of sentences...
may be suitable for conveying to the reader the originality of a publication... by
communicating to that reader an element which is, in itself, the expression of the
intellectual creation of the author of that article. Parts of sentences are, therefore, liable
to come within the scope of the protection’.. The intellectual creation standard whilst