Canadian Originality: Remarks on a Judgment in Search of an Author

Professor Abraham Drassinower (University of Toronto) has a new paper available on SSRN, “Canadian Originality: Remarks on a Judgment in Search of an Author“.  Professor Drassinower describes his paper below.

The standard of originality in Canadian copyright law has recently undergone significant transformation. Traditionally a jurisdiction that, in the eyes of many, had adopted a ‘sweat of the brow’ standard, Canada is now a ‘skill and judgment’ jurisdiction. The shift took place in CCH v. Law Society. This chapter (1) describes and contextualizes the shift; (2) analyzes its presuppositions in respect of the Canadian conception of the purpose of copyright law; and (3) identifies difficulties and ambiguities that may preclude its full development. I argue that the doctrinal shift is in tension with certain aspects of the vision of the purpose of copyright law in the name of which it took place.

Specifically, the concept of a copyright ‘balance’ between authors and users that CCH deploys in its rejection of the ‘sweat of the brow’ standard in favour of a the ‘skill and judgment’ standard is insufficient for the task. This tension between doctrine and vision generates a justificatory vacuum giving rise to difficulties and ambiguities regarding the full development of the landmark shift from ‘sweat of the brow’ to ‘skill and judgment’. In that vein, I speculate as to the conditions for the possibility of a resolution of that tension. My point is that, contrary to appearances, the historical struggle between originality schools has not been overcome. Rather, it has transmuted into a struggle between a value paradigm and an authorship paradigm of copyright law. Moving beyond the justificatory vacuum besetting the shift from ‘sweat of the brow’ to ‘skill and judgment’ would require unambiguous adoption of the authorship paradigm.