Why I Was Wrong About Originality

When I first read the Supreme Court of Canada’s landmark decision in CCH Canadian Ltd v Law Society of Upper Canada concerning the concept of originality in copyright law, I thought something was amiss. According to the Copyright Act, copyright shall subsist in every original literary, dramatic, musical and artistic work; however, “original” is not defined in the statute.

As a member of a creative industry, music, I have spent my life around authors – the creators of original work – and I know a thing or two about originality. In CCH, the court took a close look at the meaning of originality in copyright law. As a benefit to its members, the Law Society of Upper Canada (LSUC) operated a reproduction service wherein they would photocopy requested passages from legal materials and send these reproductions to the requesters. In this case, CCH accused the (LSUC) of violating their copyright by reproducing protected materials. In defence, the LSUC counterclaimed, asking for a declaration that the single reproduction of a limited selection of text, made either by the LSUC staff or a library patron, for the purpose of research, did not infringe copyright. This counterclaim was dismissed at the Federal Court as well as the Federal Court of Appeal. However, at the Supreme Court of Canada (SCC) it was held that the LSUC was not infringing copyright when a single copy was made in accordance with its access policy.

The most interesting thing about CCH is that the SCC, in its ruling, spent considerable time examining what exactly is meant by “original” as used in the Copyright Act. McLachlin CJ, speaking for a unanimous court, defined originality in copyright law thusly:

For a work to be “original” within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort.

My reaction, that this definition was flawed, was in response to the court’s ruling that for something to be original, it need not be creative. Immediately, I began to list examples from music which could meet the above definition, but which would not be described by any musician as being original. (While it is out of the scope of this post, consider briefly a series of arpeggios, the writing of which would demonstrate both skill and judgement as described above, but would certainly not be considered original).

Contrast this with copyright law in places such as Japan, where there is no originality requirement. Instead, Japan’s copyright law requires that copyrightable works be expressed in “a creative way.” This is exactly what I felt had been missing in the SCC’s definition of “original”. Now, let me tell you why I was wrong.

Explicitly including creativity as part of originality in copyright law would significantly raise the threshold works must meet to be copyrightable. The end result being, fewer works would receive copyright protection, and more would enter the public domain. As a musician I am in the somewhat unique position of being both a user of copyrightable works (as we all are), but also an author. I understand the balancing of copyright – the need to protect authors and their work, while still having accessibility for users. Including a creativity requirement in the definition of orignality would tip the scales in this delicate balance, shifting copyright to favour users, at the
detriment of authors. By not including creativity, per se, as part of their definition of originality, the SCC has allowed for a threshold of originality which produces the balance copyright law aims to achieve.

I will admit that part of my need for creativity stems from an artistic, but perhaps pompous, concern that without it, seemingly “unworthy” works would be granted copyright protection. Thankfully, I am not (yet!) a member of the Supreme Court of Canada.

Nadia Klein is a JD candidate at Osgoode Hall Law School and is currently enrolled in the course “Law & Social Change: Creative Industries” (Winter 2014).  As part of the course requirements, students are asked to write a blog on a topic of their choice.

One Comment
  1. Great post, Nadia! It was nice to read a piece written from the perspective of an author from a creative industry, as I tend to approach things from the view of the end-user before searching for Canadian copyright’s elusive Theberge ‘balance’. As I happened to be reviewing “originality” in preparation for a final exam next week, I thought I would reflect on it this morning and leave a comment.

    Your analysis of the effect of a creativity standard leading to a higher threshold such that more works would enter the public domain is spot-on. This is precisely what Linden J.A. (an Osgoode alumnus) argued in the FCA decision of CCH when he claimed that: “Inevitably, judges will be forced to create their own definitions of creativity, resulting in substantial uncertainty and further jeopardizing the public benefit that accrues from the production of new and original works” (para 58). Interestingly, the CCH case as a whole stands for the first explicit introduction of the public interest consideration into Canadian case law when thinking about originality (as it kind of flowed directly from the SCC’s first statement of the purpose of Copyright law in Theberge). Historically, the Canadian version of Copyright had been more author-centric (as typified in the 1990 SCC decision of Bishop v Stevens), whereas the U.S. has approached things from the opposite perspective (Thomas Jefferson once wrote that “Ideas should freely spread from one to another over the globe”).

    Also, I thought I would point out another argument that Prof. Craig mentioned to us in a Copyright lecture last term, when she asked us to consider the “skill and judgment” that is exercised by a 2-year-old child. As Picasso once said: “Every child is an artist. The problem is how to remain an artist once we grow up”. In the same vein, it could be argued that the drawings of a 2-year-old are very “creative”, even though there is no skill involved in the sense of a “developed aptitude or practiced ability” and there is likely little to no judgment involved in terms of “one’s capacity for discernment”. Thus, it could be argued that the “skill and judgment” standard is even higher than “creativity”. However, I’m not sure how problematic this actually is in practice since a “minimal degree of creativity” (U.S. Feist decision) will likely end up being the same as something that represents “more than a trivial exercise of skill and judgment”.

    However, this begs the question: why the difference in language? Why not adopt the U.S. version of “creativity”? Or perhaps adopt the U.K. version of “skill, judgment or labour”? In her analysis of this question in “Skill, Judgment and the Public Domain”, T. Scassa argues (at pg. 9) that:

    “The Court claims it is setting a standard at a midpoint between “sweat of the brow” and “creativity”, but given that it engages with very little of the prior case law or literature in the area, it is difficult to grasp what its version of the midpoint might be. If what the Court has done is simply remove works produced by purely mechanical effort from the reach of the standard of originality, then the result is hardly less inclusive than “sweat of the brow”. If it is looking for some qualitative measure of intellectual effort, it is much closer to the American standard, which it misrepresents as “creativity”. The fact that the Canadian Court finds that basic editorial work does not meet the standard suggests it is closer to the American threshold” (online: http://www.commonlaw.uottawa.ca)

    Basically, Scassa is arguing that CCH has opened up the possibility that some kind of “qualitative assessment” or threshold needs to be met, as it requires asking whether the would-be author has actually acquired/demonstrated any skill/ability. After all the, Chief Justice said at para 35 that: “The publishers also correct minor grammatical errors and spelling mistakes. Any skill and judgment that might be involved in making these minor changes and additions to the judicial reasons are too trivial to warrant copyright protection.” Since it could be argued that a command of spelling and grammar does reflect skill and judgment, this statement suggests the Chief Justice had some higher threshold in mind.

    However, I think what the SCC was really trying to do was 2 things:
    -(1) Harmonize Canadian Copyright law with the U.S. approach so that we are protecting the same stuff (this happens a lot in Copyright law and likely elsewhere; for example, many scholars have asserted that that CCH’s statement that fair dealing “allowable purposes should not be given a restrictive interpretation” at para 54 means it is not that dissimilar from the U.S. fair use doctrine which has a non-exhaustive list of allowable purposes).
    -(2) Find a standard that satisfied both the Common Law judges as well as the Civil Law judges on the SCC. The former judges naturally find “creativity” to be a loaded term, whereas the latter judges who believe in the droit d’auteur think the same thing about “labour” (hence the reason for the omission of that word from the U.K. standard in the Canadian version). Again, I think this happens a lot in other types of law too, like in the 2011 “Insite” constitutional law case where a 2-judge decentralist bloc was at odds with a 3-judge centralist bloc (I wrote about the details a while ago here if interested: http://www.thecourt.ca/2012/01/23/the-return-to-unanimity-in-insite-and-division-of-powers-jurisprudence-chief-justice-mclachlins-oversight/) Just like Insite, CCH was also a unanimous ruling.

    That’s my “two cents” on the matter. Since this post ended up being longer than I expected it would be, I’ll just end off by saying it will be interesting to see whether this semantic or philosophical distinction between “creativity” and “skill and judgment” will have ramifications for how we think about Copyright in future. Cheers.

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