Common Law Countries and Originality

The concept of originality is of obvious central importance in copyright law, but does it mean the same thing everywhere? On March 4, 2004, the Supreme Court of Canada handed down Law Society of Upper Canada v. CCH Canadian Limited, a comprehensive, comparative look at originality. I confess to being utterly baffled by this opinion, and I say this with trepidation, not wanting to sound like a snooty American.

In a 2002 Copyright Society article by Daniel (not Ricky) Gervais, "Feist Goes Global: A Comparative Analysis of the Notion of Originality in Copyright Law." Professor Gervais also discusses other countries's approaches to originality, but is the CCH opinion I want to mention, because it manifests such a questionable grasp of U.S. law and logic. (See also Professor Gervais' post-CCH article, "Canadian Copyright Law Post CCH.).

The dispute in CCH concerned a law library's photocopying and fax transmissions of legal materials for which copyright was asserted in headnotes, case summaries, topical indexes, and a compilation of judicial opinions. I have two central beefs with the opinion's discussion of originality, neither of which has to do with the merits of the particular dispute.

First, the court noted a number of different interpretations of the term "original," but stated nevertheless that the "plain meaning of the word 'original' suggests at least some intellectual effort, as is necessarily involved in the exercise of skill and judgment." The Court cited a dictionary for this position. However one comes out on plain meaning in statutory interpretation and the use of legislative history, it is very hard to see how a term like "original," which is undefined, the subject of quite different legal interpretations in other countries, and which is the subject of wildly different non-legal meanings, could ever be regarded as having a "plain" meaning.

The second beef I have is with the Court's conclusion that the "correct approach falls between [two] extremes," those extremes being sweat of the brow and the Feist standard. I wouldn't describe Feist as an extreme and certainly not in relation to sweat of the brow: there is no logical connection, no polar relationship, no ying-yang between the two. They represent very different approaches to originality but this doesn't mean they are points on the same line much less at opposite poles. Feist is a very mainstream, modest approach; it is not at anyone's extreme of what originality could mean, like novel or non-obvious, for example.

It is a common enough debating trope to describe yourself as being in the middle, as if you are somehow the reasonable one by your own self-identification, and that is what seemed to happen here. Yet, the approach taken seems little if any different from Feist: to be original under Canadian law, the Court held that a work "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."

Despite the verbose nature of this, I doubt Feist would disagree. Why not just say so then?