Originality in Canadian copyright law

In order for copyright protection to be extended to a work, the work must be original. While originality is a requirement for copyright around the world, there is no coherent definition of what it means for a work to be original. In Canada, copyright is governed by the Copyright Act which states in s.5(1) that copyright exists “in every original literary, dramatic, musical and artistic work” subject to that work satisfying other conditions laid out in the Act. The Copyright Act does not define what it means to be original (nor do any multinational treaties) so courts have been required to determine what it means for a work to be original.^[1]

Different Approaches to Originality

Courts in different jurisdictions have approached the meaning of originality in different ways. Some countries, such as the United Kingdom and Australia, have adopted a low standard of originality that requires the author to expend some effort and labour to create the work as well as requiring that the work not be copied. Other countries such as France and the United states require the author of a work to demonstrate some level of creativity.

"Sweat of the brow"

The sweat of the brow approach to originality in copyright (also known as the “industrious collection” doctrine) considers any work that is created by the author and not copied to be original without requiring any creativity on their part. ^[2] This approach is based on a natural rights theory or Lockean theory in which the author should be compensated for the effort of producing the work.^[3] In the UK case of University of London Press v University Tutorial Press exam papers consisted of mathematical problems were deemed to be original literary works as the originality only required that the “work must not be copied from another work…[and] should originate from the author.”

"Creativity"

The ‘creativity’ approach to originality would hold that for any work to be considered original it requires some element of creativity. While the level of creativity required is not high, it excludes mechanical arrangements of facts regardless of the labour expended in compiling and producing them.^[4]

In the United States this approach is exemplified by the case of Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991) ^[5] where the court held that the white pages of a phone directory were not original for the purposes of copyright. Justice O’Connor held that for a work to be considered “original” in the United States it requires independent creation by the author and “at least some minimal degree of creativity.”

In France, the traditional approach to originality was that the work had to reflect the author’s personality.^[6] With the recognition of copyright protection for works, such as compilations, that do not meet this personality test as well the French courts have developed a test which examines whether the author of a work made creative choices in creating that work or whether the work was the result of mechanical production.^[7]

Canadian Approach to Originality

In order for a work to be considered original in Canada it must be original to its author and not copied from another work and requires more than trivial or mechanical intellectual effort.^[8] In the case of CCH Canadian Limited v. The Law Society of Upper Canada^[9], [2004] S.C.J. No. 12 the Supreme Court of Canada examined the different approaches taken to the definition of originality. The Supreme Court ultimately concluded that the proper approach in Canadian law fell between the “sweat of the brow” approach and the “creativity” approach. Chief Justice McLachlin stated that the “exercise of skill and judgment” was necessary in order for an expression to attract copyright protection.^[10] Chief Justice McLachlin went on to state that the exercise of skill and judgement would require "intellectual effort" and "must not be so trivial that it could be characterized as a purely mechanical exercise." It has been suggested that this approach taken by the Supreme Court of Canada is functionally the same as the approach taken by the American Supreme Court in Feist and by some civil law courts as those courts required that a work require evidence of creativity in decision making rather than a mechanical exercise in order to be original.^[11]

Compilations

A compilation of works may be considered original for the purposes of copyright so long as the selection or arrangement of works or data in that compilation is original.^[12] A compilation may be considered original even if none of the elements in that compilation would considered original. For example in the case of Kilvington Bros. LTD. v. Goldberg et al., 8 D.L.R. (2d) 768 the selection and arrangement of elements in the design of a tombstone was considered to be original for the purposes of copyright despite the fact that elements themselves were considered to be in the public domain.

References

1. ^ Daniel J. Gervais, “Canadian Copyright Law Post-CCH" (2004) 18 Intellectual Property Journal 131
2. ^ "Abraham Drassinower "Sweat of the Brow, Creativity, and Authorship: On Originality in Canadian Copyright Law"". http://www.uoltj.ca/articles/vol1.1-2/2003-2004.1.1-2.uoltj.Drassinower.105-123.pdf. 
3. ^ CCH CANADIAN LIMITED v. THE LAW SOCIETY OF UPPER CANADA, [2004] S.C.J. No. 12 at para 15
4. ^ "Abraham Drassinower "Sweat of the Brow, Creativity, and Authorship: On Originality in Canadian Copyright Law"". http://www.uoltj.ca/articles/vol1.1-2/2003-2004.1.1-2.uoltj.Drassinower.105-123.pdf. 
5. ^ "The Feist v. Rural Decision". http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=499&invol=340. 
6. ^ "Daniel J. Gervais, “Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law" (2002) Journal of the Copyright Society of the USA". http://aix1.uottawa.ca/~dgervais/publications/Feist%20Article%20(PDF).pdf. 
7. ^ "Daniel J. Gervais, “Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law" (2002) Journal of the Copyright Society of the USA". http://aix1.uottawa.ca/~dgervais/publications/Feist%20Article%20(PDF).pdf. 
8. ^ David Vaver, Intellectual Property Law, 2nd Edition, Irwin Law: Toronto, 2011. at pg 100.
9. ^ "CCH Canadian Limited v. The Law Society of Upper Canada". http://www.canlii.org/en/ca/scc/doc/2004/2004scc13/2004scc13.pdf. 
10. ^ "CCH Canadian Limited v. The Law Society of Upper Canada". http://www.canlii.org/en/ca/scc/doc/2004/2004scc13/2004scc13.pdf. at para 16.
11. ^ Daniel J. Gervais, “Canadian Copyright Law Post-CCH" (2004) 18 Intellectual Property Journal 131
12. ^ David Vaver, Intellectual Property Law, 2nd Edition, Irwin Law: Toronto, 2011. at pg 95.