At the risk of extending the probably tedious copyright discussion, I thought it only fair to point out a more recent view in the other direction:
Hyperion Records Ltd v Sawkins [2005] EWCA Civ 565
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Both textbooks maintain that view despite what was said obiter in Interlego v Tyco [1988] RPC 343 by Lord Oliver at p. 371 :
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"Take the simplest case of artistic copyright, a painting or photograph. It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an 'original' artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality."
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The authors of the Modern Law of Copyright comment on this passage at para 4.39). Although the comment is long it is worth setting it out:
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"However, whilst the remarks made in Interlego may be valid if confined to the subject matter then before the Privy Council, they are stated too widely. The Privy Council was there considering fairly simple technical drawings. This is a rather special subject-matter. While the drawing of such a work is more laborious than it looks, it is a fact that any competent draftsman (perhaps, any conscientious amateur) who sets out to reproduce it exactly will almost certainly succeed in the end, because of the mathematical precision of the lines and measurements. This should be contrasted with, eg a painting by Vermeer, where it will be obvious that very few persons, if any, are capable of making an exact replica. Now, assume a number of persons do set out to copy such a painting, each according to his own personal skill. Most will only succeed in making something which all too obviously differs from the original – some of them embarrassingly so. They will get a copyright seeing that in each instance the end result does not differ from the original yet it took a measure of skill and labour to produce. If, however, one of these renders the original with all the skill and precision of a Salvador Dali, is he to be denied a copyright where a mere dauber is not? The difference between the two cases (technical drawing and old master painting) is that in the latter there is room for individual interpretation even where faithful replication is sought to be attempted while in the former there is not. Further, a photographer who carefully took a photograph of an original painting might get a copyright and, if this is so, it is rather hard to see why a copy of the same degree of fidelity, if rendered by an artist of the calibre aforementioned, would not be copyright. These considerations suggest that the proposition under discussion is suspect. It is therefore submitted that, for example, a picture restorer may get a copyright for the result of his efforts. Be that as it may, it is submitted that the Interlego proposition is anyway distinguishable where the replicator succeeds in preserving for posterity an original to which access is difficult."
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The authors of Copinger (15th Edn. 2005) likewise take the view that the passage should be read as confined (see para 3-142).
I agree with the textbooks. I do not think the comment as a generality is consistent with Walter v Lane. I think the true position is that one has to consider the extent to which the "copyist" is a mere copyist – merely performing an easy mechanical function. The more that is so the less is his contribution likely to be taken as "original." Prof. Jane Ginsberg (The Concept of Authorship in Comparative Copyright Law, http://ssrn.com.abstract_id=368481) puts it this way:
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"Reproductions requiring great talent and technical skill may qualify as protectable works of authorship, even if they are copies of pre-existing works. This would be the case for photographic and other high quality replicas of works of art"
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In the end the question is one of degree – how much skill, labour and judgment in the making of the copy is that of the creator of that copy? Both individual creative input and sweat of brow may be involved and will be factors in the overall evaluation.
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This view would leave it as a fact based judgement for each case.