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.