Daniel Kennedy is a JD Candidate at Osgoode Hall and is taking the Intellectual Property Theory course.

Like many words, “authorship” takes on distinct meaning in the realm of copyright law.  However, it may be difficult to divorce historical values associated with the term even when it is used in the legal realm.  In his article, “Copyright and Information Theory: Toward an Alternative Model of ‘Authorship’”, Alan L. Durham explores the paradigm of romantic authorship which he views as a persistent influence on modern American copyright doctrine.  The romantic model, in Durham’s view, tends to misrepresent the author as a wielder of self-generated, personal, and even “magical” creative power.  Thus, using the conceptual framework of information theory, Durham examines two alternative and more inclusive redefinitions of authorship. 

His first model views authorship as the process of adding “noise” to a signal.  Authors are themselves seen as imperfect conduits, adding “conditional entropy” to their work with shaky hands, flawed vision, or other inherent imperfections.  However, in Durham’s view, this approach minimizes the human presence of the author and operates on an incomplete understanding of the role of the artist.  Thus, he prefers a second model of authorship which asks whether the human transmitter in a particular instance freely selected the elements of his or her work from a range of alternatives.  This second theory of authorship focuses on the inevitability of the work in question.  Effectively, where there is more opportunity for choice, the work in question is less inevitable and authorship is more likely to be recognized.

While Durham’s application of information theory leads him to an interesting conceptualization of authorship, his approach is also a response to the unique copyright context of the United States.  His concern about the prevalence of the romantic notion of authorship in copyright doctrine is based in no small part on the American definition of “originality” which includes the requirement that a copyrightable work contain a “modicum of creativity”.  As a result, Durham perceives the American definition of authorship as under-inclusive.  In his view, the “free selection” theory of authorship described above would not exclude protection of any works that have been found to attract copyright to date while simultaneously expanding the scope of copyright to include new and perhaps uncreative works.

In contrast, the Canadian definition of “originality” as stated by McLachlin J. in CCH Canadian Ltd. v. Law Society of Upper Canada is explicitly defined as falling somewhere between a creativity standard (like the American model) and the Lockean “sweat of the brow” standard.  Rather than insisting on a modicum of creativity, Canadian law simply requires that a copyrighted work be more than a mere copy.  To determine whether a work meets this standard, courts will ask whether the expression in question required skill and judgement to produce.  This approach appears to be more inclusive that the American standard and may resolve many of Durham’s concerns in the Canadian context by sufficiently removing romantic creative elements from the legal definition of authorship.

While the CCH decision can be seen as broadening the definition of originality when compared to the American model, it is interesting to consider if and how Durham’s “free choice” standard of authorship differs from the current Canadian paradigm.  Like Durham’s model, McLachlin J.’s definition of “judgement” in CCH, considers whether the production of the work in question involved “evaluation by comparing different possible options”.  On the other hand, the Durham article theorizes that works of “arbitrary, indeterminate, or mechanical means” might satisfy his proposed “free choice” originality requirement and attract copyright protection.  It is certainly conceivable that works of this kind would fail to meet the current Canadian “skill and judgement” standard.

If Durham’s “free choice” model of authorship would in effect increase the scope of copyright protection beyond the current Canadian legal definition, it is relevant to ask whether such an expansion would serve the policy aims of the copyright system.  Like many scholars, Durham has noted, “if copyright law is to benefit the public as intended, it must balance the opposing tugs of author incentive and consumer access”.  We should therefore ask: are arbitrary, indeterminate, and mechanical works currently being under-produced because they are not adequately protected?  Is there a social benefit in attempting to increase production of this kind of work through fortified copyright protection?  These are questions that Durham does not address in substantive detail, yet they are relevant to a discussion of authorship and originality in the context of copyright law.

It is also possible that a copyright monopoly is not the appropriate means of ensuring protection for certain kinds of expression that would be defined as copyrightable by the Durham model.  Mechanically produced databases, for example, may arguably be better protected by unfair competition law or even by a sui generis right to data.  Although Durham acknowledges that his proposed theory of authorship would have to operate in conjunction with the “traditional dichotomies of copyright law”, he does not explore how far his new copyrightable territory would extend or the implications of the expansion.

While Durham’s article prompts many questions, especially in the context of Canadian copyright law, it also adds valuable perspective.  Defining authorship in relation to free choice and “indeterminacy” bolsters the increasingly popular view that most authors are essentially engaged in the process of selecting and recombining pre-existing elements.  The article also prompts us to re-examine some of the biases and assumptions that affect our approach to the legal constructs at the heart of our copyright system.  It is not entirely clear whether Durham is advocating substantive legal change in these areas or simply encouraging readers to consider them in a new light.  However, if we are to restructure the legal definition of terms like “originality”, due consideration must be given to the policy objectives that underpin copyright law in addition to prevailing conceptions of authorship.

Posted in Copyright, IP, Originality