Sweat of the Brow, Creativity and Authorship: On ... · Protection: The Myth of Tele-Direct” (2003) 16 I.P.J. at 561. For recent judicial discussion, see CCH Canadian ... The originality

TSpace Research Repository tspacelibraryutorontoca

Sweat of the Brow Creativity and Authorship

On Originality in Canadian Copyright Law

Abraham Drassinower

Version Publisherrsquos Version

Citation (published version)

Drassinower Abraham Sweat of the Brow Creativity and Authorship On Originality in Canadian Copyright Law University of Ottawa Law amp Technology Journal Vol 1 p 105 2003-2004

Publisherrsquos Statement This article has been published with permission from the University of Ottawa Law amp Technology Journal

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This article was made openly accessible by U of T Faculty Please tell us how this access benefits you Your story matters

UNIVERSITY OF TORONTO

Faculty of Law

PUBLIC LAW AND LEGAL THEORY RESEARCH PAPER NO 04-10

This paper can be downloaded without charge at

The Social Science Research Network Electronic Paper Collection

httpssrncom abstract=621184

SWEAT OF THE BROW CREATIVITY AND AUTHORSHIP

ABRAHAM DRASSINOWER

ON ORIGINALITY IN CANADIAN COPYRIGHT LAW

Copyright copy 2004 by Abraham Drassinower Assistant Professor University of Toronto Faculty of Law I presented an earlier version of this paper at the

Centre de recherche en droit public Faculteacute de droit Universiteacute de Montreacuteal I would like to thank SalahBasalamah Chris Essert Ysolde Gendreau Wendy Gordon Robert Howell David Lametti Ejan MackaayArthur Ripstein Brad Sherman Catherine Valcke and Arnold Weinrib for their comments Chris Essert forhis magnificent research assistance Michael Geist and Ian Kerr for the opportunity to participate in theUniversity of Ottawa Law amp Technology Journal Comparative IP and Cyberlaw Symposium 2003 theCentre for Innovation Law and Policy at the University of Toronto Faculty of Law for a Faculty ResearchGrant and the Social Sciences and Humanities Research Council of Canada for a Standard Research Grant

105

Sweat of the Brow Creativity and Authorship On Originality in Canadian Copyright Law

Abraham Drassinower

107

SECTION 5 OF THE CANADIAN COPYRIGHT ACT provides inter alia that copyrightshall subsist in ldquoevery original literary dramatic musical and artistic workrdquo1

Originality is thus a cardinal requirement of copyright protection Yet the basicfeatures of the originality requirement in Canadian copyright law are currentlyuncertain This uncertainty is often viewed as a manifestation of a long-standingand ongoing struggle between two different doctrinal schools

On the one hand the ldquosweat of the browrdquo or ldquoindustrious collectionrdquoschool holds that labour or industry even in the absence of creativity may be suf-ficient to make out a finding of originality for copyright purposes2 For examplethe labour invested in the collection of the information that makes up an ordinaryphone directory is on this view sufficient to give rise to copyright protectionThe phone directory is original in the sense that it was not copied from anotherpersonrsquos work3 The fact that the production of an alphabetically arranged phone


Abraham Drassinower

As this article went to press the Supreme Court of Canada released its judgment in CCH Canadian Ltd v Law Society of Upper Canada infra note 2 Please see footnote 57 for the authorrsquos discussion of thisdevelopment

1 RSC 1985 c C-42 lthttplawsjusticegccaenC-42gt2 See eg U amp R Tax Services Ltd v H amp R Block Canada Inc [1995] FCJ No 962 62 CPR (3d) 257 at 264

ldquoA work must be ldquooriginalrdquo in order to be afforded copyright Industriousness (ldquosweat of the browrdquo) asopposed to creativity is enough to give a work sufficient originality to make it copyrightablerdquo See also Kellyv Morris (1866) LR 1 Eq 697 The sweat of the brow approach is generally viewed as the traditionalCommonwealth position on originality See eg Norman Siebrasse ldquoCopyright in Facts and Information FeistPublications Is Not and Should Not Be The Law in Canadardquo (1994) 11 CIPR 191 Yorsquoav Mazeh ldquoCanadianOriginality and The Tension Between the Commonwealth and The American Standards for CopyrightProtection The Myth of Tele-Directrdquo (2003) 16 IPJ at 561 For recent judicial discussion see CCH CanadianLtd v Law Society of Upper Canada 2002 FCA 187 lthttpreportsfjagccafcsrcshtml2002pubv42002fc30725shtmlgt [2002] 4 FC 213 18 CPR (4th) 161 (FCA) [Law Society cited to CPR] DesktopMarketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112 (15 May 2002) lthttpwwwaustliieduauaucasescthFCAFC2002112htmlgt 119 FCR 491 192 ALR 433 (Aust FC) [Telstra]

3 The Copyright Act itself does not define ldquooriginalityrdquo Peterson Jrsquos authoritative definition in University ofLondon Press v University Tutorial Press [1916] 2 Ch 601 at 608ndash609 is cited more often than most

The word ldquooriginalrdquo does not in this connection mean that the work must be the expression of orig-inal or inventive thought Copyright Acts are not concerned with the originality of ideas but withthe expression of thought and in the case of ldquoliterary workrdquo with the expression of thought inprint or writing The originality which is required relates to the expression of the thought But theAct does not require that the expression must be in an original or novel form but that the workmust not be copied from another workmdashthat it should originate from the author

(2003ndash2004) 1 UOLTJ 105

directory is a merely mechanical and automatic task requiring no creativity doesnot affect the directoryrsquos copyrightability

On the other hand the ldquocreativityrdquo school holds that a finding of origi-nality is impossible in the absence of creativity The standard of originalityrequires at least minimal creativity To be subject to copyright protection a workmust be not-copied and minimally creative More precisely the creativity require-ment subsumes the not-copied requirement The result is that labour as such isnot sufficient It is true that the standard of creativity is not by any means highmdashbut it is there This means that merely mechanical arrangements of pre-existingmaterial even if not copied are still not original On this view a garden varietyphone directory lacks originality One can therefore copy it with impunity It ispublic domain material regardless of the labour invested in its production Onemight say that from the standpoint of the creativity view of originality copyrightlaw protects creations not mere productions and ordinary phone directories areproduced not created4

Many regard the doctrinal battle between the sweat of the brow and thecreativity schools as a far deeper theoretical encounter between two differentand incompatible versions of the very meaning and purpose of copyright lawThis encounter is often construed as one between a ldquomisappropriationrdquo modelof copyright lawmdashfor which fairness to the author as labourer is the central and

4 See eg Tele-Direct (Publications) Inc v American Business Information Inc [1998] 2 FC 22lthttpreportsfjagccafcsrcshtml1998pubv21998fc21425shtmlgt 76 CPR (3d) 296 at 303 308(FCA) [Tele-Direct cited to CPR] ldquohellip compilations of data are to be measured by standards of intellectand creativityhellip While not defined in the Act the word lsquoauthorrsquo conveys a sense of creativity and ingenu-ityrdquo Though the sweat of the brow approach is often regarded as the traditional Commonwealth approachthe jurisprudence is by no means devoid of evidence indicating that matters were always more complexand subtly textured A few examples will suffice In Caron v Association des Pompiers de Montreal Inc[1992] FCJ No 236 42 CPR (3d) 292 at 294ndash295 Pinard J stated ldquo[i]n this regard I consider that they[the defendants] were not able to show on a balance of probabilities that the compilations produced bythe plaintiff required no creativityrdquo In Kilvington Bros Ltd v Goldberg et al (1957) 8 DLR (2d) 768 at770 Judson J reasons on the basis that merely ldquoautomatic or mechanicalrdquo arrangements of pre-existingmaterial would not give rise to copyright protection

This work was the independent creation of Ridsdale He did not copy it from any source It embod-ied features that were common knowledge in the business but it was more than an automatic ormechanical arrangement of these features Ridsdale can draw and he did produce out of his ownmind and with his own skill an independent work My conclusion is that copyright exists in this work

In G A Cramp amp Sons Ltd v Frank Smythson Ltd [1944] AC 329 at 335ndash336 Viscount Simon LC stated [g]ranted that the appellants copied the respondentsrsquo tables (and this is not only admitted but isindicated by the almost precise similarity of language) there seems to be nothing that can prop-erly be described as an ldquooriginal literary lsquoworkrsquordquo in grouping together this information A summa-rized statement of the most important of the postal charges inland imperial and foreign is part ofthe ordinary contents of any pocket diary There would indeed as it seems to me be consider-able difficulty in successfully contending that ordinary tables which can be got from or checked bythe postal guide or the Nautical Almanac are a subject of copyright as being original literary workOne of the essential qualities of such tables is that they should be accurate so that there is noquestion of variation in what is stated The sun does in fact rise and the moon sets at times whichhave been calculated and the utmost that a table can do on such a subject is to state the resultaccurately There is so far no room for taste or judgment

And in Macmillan amp Co v K amp J Cooper [1924] 93 LJPC 113 to give one more example the PrivyCouncil in distinguishing between an abridgment subject to copyright protection and a mere compilationof ldquodetached passages selected from an authorrsquos workrdquo not subject to copyright protection cited withapproval at 116ndash117 Copingerrsquos Law of Copyright

To constitute a true and equitable abridgment the entire work must be preserved in its preciseimport and exact meaning and then the act of abridgment is an exertion of the individualityemployed in moulding and transfusing a large work into a small compass thus rendering it lessexpensive and more convenient both to the time and use of the reader To make such an abridg-ment requires the exercise of mindhellipskill and judgmenthellipbrought into play and the result is notmerely copying

108 university of ottawa law amp technology journal wwwuoltjca

animating concernmdashand a ldquopublic interestrdquo model of copyright lawmdashfor whichthe production and dissemination of authorial works in the name of the publicinterest is the central and animating concern5

My purpose in this paper is twofold First I want to establish that ourcurrent confusion regarding the originality doctrine is the result of the concurrentinfluence in our jurisprudence not of two but of three different and incompati-ble theoretical versions of the very meaning and purpose of copyright law Mypoint here is to insist upon the presence in our jurisprudence of a third vision ofcopyright law which I will call the ldquoauthorshiprdquo model I will then argue that theauthorship model because it is not framed in terms of an opposition betweenauthor and public offers a vision of copyright law for which respect for author-ship is consistent with the cultivation of the public domain The upshot of my dis-cussion is an affirmation of originality as creativity from the standpoint of theauthorship model

In 1997 in Tele-Direct (Publications) Inc v American BusinessInformation Inc the Federal Court of Appeal stated that the struggle betweenthe sweat of the brow and the creativity schools had come to an end The Courtfound that certain 1993 amendments to the Copyright Act had

hellipdecided the battle which was shaping up in Canada between partisans ofthe ldquocreativityrdquo doctrinemdashaccording to which compilations must possess atleast some minimal degree of creativitymdashand the partisans of the ldquoindustriouscollectionrdquo or ldquosweat of the browrdquo doctrinemdashwherein copyright is a rewardfor the hard work that goes into compiling facts6

The Court denied copyright protection to the phone directories at issue in thecase7 In so doing the Court referred to the landmark American case of FeistPublications v Rural Telephone in which the United States Supreme Courtexpressly and unambiguously affirmed the creativity standard8 The SupremeCourt of Canada denied leave to appeal and it seemed at least for a momentthat Canadian copyright law had aligned itself with the American creativity stan-dard formulated in Feist and had consequently distanced itself from what is gen-erally viewed as the traditional sweat of the brow Commonwealth jurisprudence

The subsequent history of originality in Canada however belies theFederal Court of Appealrsquos hope of having settled the battle definitively A single

5 See eg Mazeh supra note 26 Tele-Direct supra note 4 at 3027 Ibid at 299 More precisely the case involved the listings of entries in Yellow Pages Directories

The main issue in this appeal is whether copyright subsists in the compilation of information con-tained in Yellow Pages directorieshellippublished by [the appellant] Tele-Directhellip The [respondent]American Business Informationhelliphas conceded that the Yellow Pages when taken as a whole andgiven the visual aspects of the pages and their arrangement enjoy the protection of copyright

8 Feist Publications v Rural Telephone 499 US 340 (1991) 1282 at 362ndash364 [Feist] Ruralrsquos [ie plaintiffrsquos] selection of listings could not be more obvious it publishes the most basicinformationmdashname town and telephone numbermdashabout each person who applies to it for tele-phone service This is ldquoselectionrdquo of a sort but it lacks the modicum of creativity necessary to trans-form mere selection into copyrightable expression Rural expended sufficient effort to make thewhite pages directory useful but insufficient creativity to make it originalBecause Ruralrsquos whitepages lack the requisite originality Feistrsquos use of the listings cannot constitute infringement Thisdecision should not be construed as demeaning Ruralrsquos efforts in compiling its directory but ratheras making clear that copyright rewards originality not effort

Sweat of the Brow Creativity and Authorship 109(2003ndash2004) 1 UOLTJ 105

case will suffice In 1999 in CCH Canadian v Law Society of Upper CanadaJustice Gibson of the trial division of the Federal Court found inter alia that theheadnotes (of the sort that accompany reported judicial opinions) at issue in thecase were not subject to copyright protection because they lacked originality9

Justice Gibson reached that conclusion by relying on what he took to be the neworiginality standard affirmed two years earlier in Tele-Direct10 Nonetheless theFederal Court of Appeal reversed Justice Gibsonrsquos judgment in 2001 Thegrounds for this reversal however are less than clear

On the one hand Justice Lindenrsquos majority judgment appears to affirmthe Tele-Direct decision but only by suggesting that the decision is consistentwith pre-existing Canadian jurisprudence11 Hence his judgment cannot help butleave us with a sense of unease as to whether we have a sufficiently clear vieweither of what the traditional jurisprudence held or of what Tele-Direct stands forOn the other hand Justice Rothsteinrsquos concurrence does suggest that at least asregards the protection of compilations of datamdashsuch as garden variety phonedirectoriesmdashTele-Direct may have ushered in a transformation of the appropriateoriginality standard Still Justice Rothstein refrained from a discussion of thematter on the grounds that the facts before him did not involve a compilation12

Both majority and concurrence then proceed as if the Tele-Direct decision nevertook place Justice Linden by suggesting that the widespread sense that Tele-Direct amounted to a departure from the traditional jurisprudence was littlemore than some sort of widely shared illusion13 and Justice Rothstein by statingthat Tele-Direct was not applicable to the facts before him

The Supreme Court of Canada granted leave to appeal the Law Societycase in late 2002 The Court heard the case on November 10 2003 Perhaps

9 [2000] 2 FC 451 lthttpreportsfjagccafcsrcshtml2000pubv22000fc25519shtmlgt 2 CPR (4th)129 at 195 (FCTD) [Law Society (FCTD) cited to CPR]

10 Ibid at 195 ldquoI am satisfied that editorially enhanced judicial decisions should be measured by a standard ofintellect and creativity in determining whether they give rise to copyright in the same way as compilationsof data might be said to be measured following the decision of the Federal Court of Appeal in Tele-Directrdquo

11 Law Society supra note 2 at 184 192 ldquoIn my view the Trial Judge misinterpreted this Courtrsquos decision inTele-Direct (Publications) Inc v American Business Information Inc hellipand other jurisprudence as shifting thestandard of originality away from the traditional Anglo-Canadian approachhellip Tele-Direct did not introducean additional precondition to copyright protection under Canadian lawrdquo See generally ibid at 183ndash197

12 Ibid at 243 ldquoI recognize that Tele-Direct supra may be read to eliminate the industrious collectionapproach to originality that has sometimes been used for compilationshellip Therefore given that I am nothere concerned with compilations it is not necessary to enter the debate involving compilations I am satis-fied that originality outside of compilations has always required evidence of some level of intellectual effortand that in that context Tele-Direct supra is consistent with this positionrdquo See generally ibid at 241ndash244

13 In Telstra supra note 2 at para 430 per Sackville J for example the Australian Federal Court interpretedTele-Direct as a case following Feist ldquoThere [in Tele-Direct] the [Canadian Federal] Court of Appeal fol-lowed the approach to originality adopted by the Supreme Court of the United States in Feistrdquo See alsothe judgment of Lindgren J ibid at 208-217 For views of Tele-Direct as firmly in the creativity camp seeHoward Knopf ldquoA Tale of Two Columns Confusion Concerning Compilation Copyright in Canada EacutedutileInc v Automobile Protection Assnrdquo [2001] 238 EIPR 388 at 390 Daniel J Gervais ldquoFeist Goes GlobalA Comparative Analysis of the Notion of Originality in Copyright Lawrdquo (2002) 49 J Crsquoright Socrsquoy USA 949at 963 David Lametti ldquoPublish and Profit Justifying the Ownership of Copyright in the Academic Settingrdquo(2001) 26 Queens LJ 497 at 528 See also Robert G Howell ldquoDatabase Protection and Canadian Laws(State of Law as of June 15 1998)rdquo lthttpwwwpchgccaprogsac-capubsic-cipubsfulverenpdfgtDavid Fewer ldquoA Sui Generis Right to Data A Canadian Positionrdquo (1998) 30 Can Bus LJ 165 BarrySookman Computer Internet and Electronic Commerce Law looseleaf (Toronto Carswell 2001) at 3ndash1293ndash130 Mazeh supra note 2


their decision will indeed decide the battle between the sweat of the brow andthe creativity schools In the meantime the basic features of the originalityrequirement in Canadian copyright law remain uncertain

The stakes involved can hardly be overestimated There is even a perva-sive sense in which the current incarnation of the ongoing doctrinal battle bothrecalls and repeats the literally foundational opposition between rights-basedand instrumentalist accounts of copyright law that structured the great ldquoliterarypropertyrdquo debate surrounding the interpretation of the Statute of Anne theworldrsquos first copyright statute in late 18th century England14

On the one hand the sweat of the brow approach cannot help butinvoke and evoke in the language of fairness and justice persistent images ofthe authorrsquos entitlement to the products of her labour as a matter of natural rightThe opening lines of Lord Halsburyrsquos classic judgment in Walter v Lane can hard-ly be improved upon as a statement of the stance that informs this approach

I should very much regret it if I were compelled to come to the conclusion thatthe state of the law permitted one man to make profit and to appropriate tohimself the labour skill and capital of another And it is not denied that in thiscase the defendant seeks to appropriate to himself what has been producedby the skill labour and capital of others In the view I take of this case I thinkthe law is strong enough to restrain what to my mind would be a grievous injus-tice The law which I think restrains it is to be found in the Copyright Act andthat Act confers what it calls copyrightmdashwhich means the right to multiplycopiesmdashwhich it confers on the author of books first published in this country15

The affirmation of the normative significance of the sweat of the authorrsquos browgenerates a vision of copyright law as a remedy for the grievous injustice of mis-appropriation Copyright is there in order to preclude reaping by those who havenot sown16

On the other hand the creativity approachndashas formulated by theAmerican Supreme Court in Feistmdashexpressly invokes a utilitarian discourse thatreduces the author to a mere function of the public interest This approach there-fore regards concerns about fairness to the author as radically misplaced in copy-right jurisprudence Thus denying the proposition that copyright is a reward forthe hard work that goes into compiling facts Justice OrsquoConnor stated

14 An Act for the Encouragement of Learning by vesting the Copies of printed Books in the Authors orPurchasers of such Copies during the Times therein mentioned (UK) 8 Anne c 19 (1709) The great lit-erary property debate surrounding the interpretation of the Statue of Anne culminated in the late 1700swith the landmark case of Donaldson v Beckett (1774) 4 Burr 2408 98 ER 257 On the literary propertydebate see Mark Rose ldquoThe Author as Proprietor Donaldson v Becket and the Genealogy of ModernAuthorshiprdquo in Brad Sherman amp Alain Strowel eds Of Authors and Origins Essays on Copyright Law(Oxford Clarendon Press 1994) 23 [Rose ldquoProprietorrdquo] Mark Rose Authors and Owners The Invention ofCopyright (Cambridge MA Harvard University Press 1993) [Rose ldquoOwnersrdquo] Brad Sherman amp LionelBentley The Making of Modern Intellectual Property Law The British Experience 1760ndash1911 (CambridgeCambridge University Press 1999) at 11ndash42

15 Walter v Lane [1900] AC 539 at 54516 Consider International News Service v Associated Press 248 US 215 at 239 (1918)

Defendant by its very act admits that it is taking material that has been acquired by complainantas the result of organization and the expenditure of labor skill and money and which is salable bycomplainant for money and that defendant in appropriating it and selling it as its own is endeav-oring to reap where it has not sownhellip


[i]t may seem unfair that much of the fruit of the compilerrsquos labor may be usedby others without compensation As Justice Brennan has correctly observedhowever this is not ldquosome unforeseen byproduct of a statutory schemerdquohellip Itis rather the ldquoessence of copyrightrdquohellipand a constitutional requirement Theprimary objective of copyright is not to reward the labor of authors but ldquo[t]opromote the Progress of Science and useful Artsrdquohellip To this end copyrightassures authors the right to their original expression but encourages othersto build freely upon the ideas and information conveyed by a workhellip Thisprinciple known as the ideaexpression or factexpression dichotomy appliesto all works of authorship As applied to a factual compilation assuming theabsence of original written expression only the compilerrsquos selection andarrangement may be protected the raw facts may be copied at will The resultis neither unfair nor unfortunate It is the means by which copyright advancesthe progress of science and art17

The sublime indifference towards any issues regarding fairness to the authorappears through the proposition that reaping where the compiler has sown isactually not at all unfair The problem of misappropriation is not even recognizedas a problem within the normative vocabulary of the public interest approach

But although many regard the current incarnation of the sweat of thebrowcreativity struggle as an encounter between the misappropriation modeland the public interest model previous incarnations of that struggle are bestcharacterized as an encounter between the misappropriation model and theauthorship model The classic House of Lords decision in Walter v Lane is thearchetypal instance of that earlier version of the struggle

Walter v Lane involved several public speeches delivered by the Earl ofRosebery Journalists attended the speeches and reported them verbatim in TheTimes newspaper18 Sometime after publication of the reports of the Earl ofRoseberyrsquos speeches the defendant published a book that consisted of reportsof the very same speeches preceded by short notes It was admitted that thesereports were taken from the reports in The Times The Times sued for copyrightinfringement asserting copyright in the verbatim reports of the speechesNorth J granted an injunction that restrained the respondent from publishingthe book until judgment in the action In the Court of Appeal the parties agreedthat the appeal should be treated as the trial of the action The Court of Appealreversed the decision of North J and dismissed the action The Times appealedto the House of Lords

Five judgments were delivered by the House of Lords Four (Earl ofHalsbury LC Lord Davey Lord James of Hereford and Lord Brampton) foundin favour of the plaintiff Lord Robertson dissented We may regard Lord

17 Feist supra note 8 at 349ndash35018 The items that appeared in The Times were ldquoLord Rosebery on Free Librariesrdquo (26 June 1896) p 12 col b

ldquoLord Rosebery and Sir Walter Besant on Londonrdquo (8 December 1896) p 9 col a ldquoLord Rosebery on GreatBritain and Americardquo (8 July 1898) p 8 col a ldquoLord Rosebery on Burkerdquo (11 July 1898) p 10 col b andldquoEtonian DinnermdashLord Rosebery and Lord Curzonrdquo (28 October 1898) p 8 col b


Halsburyrsquos judgment as a paradigmatic ldquosweat of the browrdquo judgment and LordRobertsonrsquos dissent as a paradigmatic ldquocreativityrdquo judgment19

The Court of Appeal had found in favour of the defendant on thegrounds that the reporters were not ldquoauthorsrdquo for copyright purposes To pro-duce a verbatim report of a speech is not to author a work subject to copyrightprotection In Lord Halsburyrsquos view however the Court of Appealrsquos judgmentwas based on too narrow and misleading a use of the word ldquoauthorrdquo Whateverthe word ldquoauthorrdquo means in some ordinary or general sense the word ldquoauthorrdquowithin the meaning of the Act cannot exclude the producers of a verbatim reportsuch as the one in the case at hand Lord Halsbury relies on what is known as thedirectory cases which hold that garden variety phone directories are subject tocopyright protection20 He writes

[i]f the producer of such a book [ie a phone directory] can be an author with-in the meaning of the Act I am unable to understand why the labour ofreproducing spoken words into writing or print and first publishing it as abook does not make the person who has so acted as much an author as theperson who writes down the names and addresses of the persons who live ina particular street21

Lord Halsburyrsquos reliance on the directory cases shows his insistence thatno meaningful distinction can be drawn for copyright purposes between pro-ducers and authors and by the same token between products and worksMoreover this refusal to distinguish the labour of production from the labour ofauthorship goes hand in hand with a parallel insistence that the purpose of copy-right is not to protect the specific labour of authorshipmdashwhatever that may meanmdashbut rather the labour of production per se What is at stake is not ldquoauthorshiprdquoin any special sense but rather the ldquogrievous injusticerdquo involved in the misap-propriation of anotherrsquos effortmdashin reaping where another has sown Thus LordHalsburyrsquos expansive conception of the word ldquoauthorrdquo is part and parcel of aview of copyright as a remedy for the misappropriation of labour22

Before moving on to Lord Robertsonrsquos dissent I want to pause briefly onLord Jamesrsquos judgment Lord Jamesrsquos view is of interest at this point becausewhile Lord James agrees with Lord Halsbury as regards the result he nonethe-less reaches that result from the standpoint of a distinction between production

19 Strictly speaking the use of the terms ldquosweat of the browrdquo and ldquocreativityrdquo to denote Lord Halsburyrsquos andLord Robertsonrsquos judgments respectively is anachronistic The terms describe schools of thought withrespect to the originality requirement but the word ldquooriginalrdquo did not find its way into the BritishCopyright Act until 1911 eleven years after Walter v Lane Still in the pre-1911 jurisprudence includingWalter v Lane the very same debate about the acquisition of copyright took place through inquiry into themeaning of the word ldquoauthorrdquo See Robert Howell amp Ysolde Gendreau ldquoQualitative Standards forProtection of Literary and Artistic Propertyrdquo in Contemporary Law Canadian Reports to the 1994International Congress of Comparative Law Athens 1994 (Cowansville QC Yvon Blais 1995) 518 at521ndash522 542ndash545

20 See eg Kelly v Morris supra note 2 See also Siebrasse supra note 221 Walter v Lane supra note 15 at 54622 It is true that Lord Halsbury makes reference to the appropriation of anotherrsquos ldquoskillrdquo but he is quite defi-

nite that no ldquoskillrdquo of any kind is a prerequisite for a finding of copyrightability ldquohellipif I have not insistedupon the skill and accuracy of those who produce in writing or print spoken wordsrdquo he wrote ldquoit is notbecause I think the less of those qualities but because as I have endeavoured to point out neither theone nor the other are conditions precedent to the right created by the statuterdquo Ibid at 549


and authorship between the labour involved in mechanical transcribing and thework of authorship Lord James frames the issue by stating that the report of thespeech is ldquosomething differentrdquo from and beyond the speech itself23 The ques-tion is whether this difference represents a ldquosomethingrdquo of which any one can beregarded as ldquothe authorrdquo within the meaning of the Copyright Act24 Lord Jamesfinds this mysterious ldquosomethingrdquo in what he calls the ldquoreporterrsquos artrdquo25 Takingdown the words of a speaker and certainly of a rapid speaker Lord James pointsout is ldquoan art requiring considerable traininghelliprdquo26 In fact reporters less skilledare ldquodeficient in this quality of accuracyrdquo27 It is on the basis of this quality thatLord James concludes that ldquoa reporter of a speech under the conditions existingin this case is the meritorious producer of the something necessary to constitutehim an lsquoauthorrsquo within the meaning of the Copyright Acthelliprdquo28 Thus althoughLord James applies an authorship standard he nonetheless concurs with LordHalsbury at the level of the result Lord James finds the features of authorship inthe verbatim reports

In his dissent Lord Robertson restricts the meaning of ldquoauthorshiprdquoeven further than does Lord James Nothing but literal accuracy Lord Robertsonnotes is required to produce the verbatim reports in question29 The reporter ofa speech is a good reporter by virtue of a contribution of a purely negative kindThe good reporter ldquodoes not interfere but faithfully acts as conduitrdquo30 The meritof the verbatim reports says Lord Robertson is that ldquothey present the speakerrsquosthoughts untinctured by the slightest trace or colour of the reporterrsquos mindrdquo31

Thus Lord Robertsonrsquos view is that the very merit of the reports is what indicatesthat the reports are not copyrightable The rival of a good stenographer is thephonograph and it is hard to see says Lord Robertson ldquohow in the widestsense of the term lsquoauthorrsquo we are in the region of authorshiprdquo32 LordRobertsonrsquos judgment is thus premised on an affirmation of the specificity of thelabour of authorship and therefore on a distinction between mental productsper se and the specific works of authorship

As regards the directory cases on which Lord Halsbury relies LordRobertson insists that they are not inconsistent with his affirmation of the speci-ficity of authorship Thus Lord Robertson admits that there are cases that applyldquothe words of the Act to very pedestrian efforts of the mindrdquo such as furniturecatalogues and timetables33 Still he insists that even such pedestrian efforts of

23 Ibid at 553 24 Ibid ldquoThe plaintiffs do not claim copyright in the speech itself but as stated by Lord Lindley in the Court

of Appeal the report of the speech is something different from and beyond the speech and the questionto be solved is whether this difference represents a something of which any one can be regarded as lsquotheauthorrsquo within the meaning of the Copyright Actrdquo

25 Ibid at 55426 Ibid27 Ibid at 555 28 Ibid [emphasis added] 29 Ibid at 56030 Ibid31 Ibid at 56132 Ibid [emphasis added] 33 Ibid


the mind nonetheless exhibit ldquostructure and arrangement on the part of themakerrdquo34 In the end Lord Robertsonrsquos view is that ldquothe recording by stenogra-phy the words of another is in a different region from the making-up a timetableI do not say it is [a] lower or higher [region]rdquo he is careful to add ldquobut in a dif-ferent plane because there is no constructionrdquo35

Thus if Lord Halsbury does not require anything more than the undif-ferentiated and unspecified labour of production and Lord James requires inaddition the application of a ldquoskillrdquo of some kind Lord Robertson requires notthe application of just any skill but the application of a particular skill or facultyhe identifies with ldquoauthorshiprdquo ldquoThe word lsquoauthorrsquordquo he writes ldquoseems to me topresent a criterion consistent with the widest application of the Act to all whocan claim as embodying their own thought whether humble or lofty the letter-press of which they assert their authorshiprdquo36 Authorship is the constructiveprocess of embodying thought37

Immediately after his affirmation of the criterion of authorship LordRobertson states

[t]he fact that the man who speaks in public is not a competitor with thereporter for copyright has not the slightest effect in altering the intellectualrelation of the reporter to the words of the speech nor does it render lessinappropriate the result of holding the statute to confer on the stenographera reward which has no relation whatever to his art38

34 Ibid35 Ibid [emphasis added] Like Lord Robertson those who adopt the position that copyright does not protect

labour or effort per se must deal with the directory cases The strategy of choice in that respect is to assertthat the directory cases do not in fact support a sweat of the brow position Consider for example the fol-lowing passage from Tele-Direct supra note 4 at 307ndash308

[i]t is true that in many of the cases we have been referred to the expression ldquoskill judgment orlabourrdquo has been used to describe the test to be met by a compilation in order to qualify as orig-inal and therefore to be worthy of copyright protection It seems to me however that wheneverldquoorrdquo was used instead of ldquoandrdquo it was in a conjunctive rather than in a disjunctive wayhellip I do notread these cases which have adopted the ldquosweat of the browrdquo approach in matters of compilationsof data as having asserted that the amount of labour would in itself be a determinative source oforiginality If they did I suggest that their approach was wrong and is irreconcilable with the stan-dards of intellect and creativity that were expresslyhellipendorsed in the 1993 amendments to theCopyright Act and that were already recognized in Anglo-Canadian law [Italics added]

36 Walter v Lane supra note 15 at 562 37 The distinction between modes or kinds of labour is crucial to the conceptual underpinnings of the creativi-

ty approach The distinction is present in our jurisprudence For example in the classic case of Ladbroke(Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 Lord Evershed stated (at 472 and 474)

[t]here can in my judgment be no doubt upon the evidence in the present case that when all thehard work has been done in deciding on the wagers to be offered there still remains the furtherdistinct task requiring considerable skill labour and judgment (though of a different kind) of devis-ing the way in which the chosen wagers are expressed and presented to the eye of the customerhellip[T]here is in my judgment here a real distinction between the work done in arriving at conclusionsupon what wagers could properly and safely be offered and the work done in designing the natureand appearance and general lay-out of the coupon as a literary compilationhelliprdquo [Italics added]

The distinction however is far from relevant for those adopting a sweat of the brow standpoint Thus in thesame case Lord Devlin stated (at 479) ldquohellipthe work cannot be split up and parts allotted to the severalobjects The value of the work as a whole must be assessed when the claim to originality is being consid-eredhellip Free trade does not require that one man should be allowed to appropriate without payment thefruit of anotherrsquos labourhelliprdquo Section 2 of the Copyright Act supra note 1 defines a ldquocompilationrdquo as interalia ldquoa work resulting from the selection or arrangement of datardquo The distinction between modes or kindsof labour central to the creativity approach is in my view inseparable from the distinction between selectionor arrangement on the one hand and data on the other that informs the Actrsquos definition of ldquocompilationrdquoThe labour involved in selection or arrangement is not the same as the labour involved in mere collection

38 Walter v Lane supra note 15 at 562


Lord Robertson understands copyright as the legal recognition of a spe-cial relation between an author and his work What he finds lacking in the ver-batim reports at issue in Walter v Lane is a specific kind of intellectual relationbetween the reporters and their report of the speech It is true that the reportershave some sort of special relation to their report and nothing in LordRobertsonrsquos judgment would necessarily preclude us from honoring this relationin some other way But Lord Robertson is telling us that (1) there is a specific kindof relation between author and work that copyright protects and that (2) thisrelation is just not that of the stenographer to her work Whatever else she mightbe a stenographer is not an author and copyright is about authorship

Moreover Lord Robertsonrsquos statement is not only about the centrality ofa specific kind of intellectual relation between author and work to a finding ofcopyrightability Lord Robertsonrsquos statement is alsomdashand thereforemdasha statementabout what is not relevant to the finding of copyrightability That is what is rele-vant is the intellectual relationmdashor lack thereofmdashbetween author and work neitherthe presence of a competitive relation between the reporters and the subsequentpublisher of the reports nor the absence of a competitive relation between thespeaker and the reporters is pertinent to the copyrightability inquiry It is as if LordRobertson were telling Lord Halsbury that whatever wrong may be involved in themisappropriation of anotherrsquos labour this is not the wrong for which copyright isthe remedy The mischief that the Act seeks to remedy is the unauthorized copy-ing of anotherrsquos authorial work It is not unfair competition39

The two different interpretations of the originality requirement thatemerge from the encounter between Lord Halsbury and Lord Robertson inWalter v Lane then correspond to two different visions of the very purpose andmeaning of copyright law Whereas Lord Halsburyrsquos sweat of the brow approachaffirms a view of copyright as concerned with the misappropriation of anotherrsquoslabour Lord Robertsonrsquos creativity approach affirms a view of copyright as con-cerned with the recognition of authorial dignity What we have then is anencounter between the misappropriation model and the authorship model

There is of course a third vision of copyright law operating in our midstthe public interest model This model regards copyright law as an instrumentdesigned to balance the incentives necessary for the authorrsquos productivity withthe public interest in access to and dissemination of her products The model isinstrumentalist in the sense that it sees the authorrsquos legal entitlement as nothingmore than a function of the public interest as a means to an end albeit a nec-essary means not an end in itself The author has rights not because of the inher-ent dignity of authorship nor because of the inherent fairness in rewardinglabour and preventing its misappropriation but rather because the public inter-est in the production of intellectual works requires these rights as incentives forproduction If these incentives were not necessary the author would have norights arising from either her dignity or her labour

39 On copyright and unfair competition see eg Howell supra note 13 Howell and Gendreau supra note 19


There can be no doubt that the concept of the public interest has alwayshad a role in copyright jurisprudence40 Permit me to access this role howeverby returning for a moment to the recent history of originality in Canada As I stat-ed at the outset the Federal Court of Appeal stated in Tele-Direct that the strug-gle between the sweat of the brow and the creativity schools had come to anend The Court relied in part on certain amendments to the Copyright Act whichwere required as a result of the North American Free Trade Agreement41 I amnot concerned here with the correctness or lack thereof of the way in which thecourt interpreted those amendments42 What matters for present purposes isthat rightly or wrongly the Court interpreted those amendments with referenceto the 1991 case of Feist in which the United States Supreme Court explicitly andunambiguously enshrined the creativity interpretation of originality Of coursethe standpoint from which the United States Supreme Court affirms the creativ-ity standard in that case is not that of Lord Robertson in Walter v Lane In Feistcreativitymdashwhat Lord Robertson would call ldquoconstructionrdquomdashappears not as a vin-dication of authorial right but rather as a vindication of the public interest in thedissemination of facts as against any rights which would purportedly arise fromthe hard labour of collecting facts On this view the point is not that the publicrsquosinterest in dissemination trumps the compilerrsquos right arising from the investmentof hard labour in the collection of facts or data The point rather is that to theextent that copyright law is but an instrument of the public interest no right aris-ing from labour as such is cognizable under the statute There is no unfairnessbecause no right of the compiler has been compromised

It is true that both the authorship model and the public interest modelaffirm originality as a matter of creativity As such these two models share arejection of the kind of fairness concerns raised by the misappropriation modelas relevant in copyright law But this convergence between these two models hasgenerated counter-productive ambiguities in the recent history of originality inCanadian copyright jurisprudence Thus for example in Tele-Direct JusticeDeacutecary evoked the inherent dignity of authorial right as the central copyrightconcern par excellence yet he did so by invoking a case Feist that affirms a rad-ically instrumentalist understanding of the creativity requirement an under-standing for which the author is but a ldquosecondaryrdquo consideration43 Nowhere isthe ambiguity more noticeable than in the following passage of Justice Deacutecaryrsquosjudgment ldquo[t]he use of the word lsquocopyrightrsquo in the English version of the Act hasobscured the fact that what the Act fundamentally seeks to protect is lsquole droit

40 See eg Lyman Ray Patterson Copyright in Historical Perspective (Nashville Vanderbilt University Press1968) Rose ldquoProprietorrdquo supra note 14 Rose ldquoOwnersrdquo supra note 14 Sherman amp Bentley supra note14 See also David Lange ldquoRecognizing the Public Domainrdquo (1981) 444 Law amp Contemp Probs 147Jessica Litman ldquoThe Public Domainrdquo (1990) 394 Emory LJ 965

41 North American Free Trade Agreement Between the Government of Canada the Government of Mexicoand the Government of the United States 17 December 1992 Can TS 1994 No 2 32 ILM 289(entered into force 1 January 1994)

42 For a discussion of this issue see Myra J Tawfik ldquoDecompiling the Federal Court of Appealrsquos lsquoNAFTAArgumentrsquo in Tele-Direct (Publications) Inc v American Business Information IncmdashFrom Facts to Fictionrdquo33 Ottawa L Rev 147

43 See eg Computer Associates v Altai Inc 982 F2d 693 at 696 (2nd Cir 1992) ldquoThe authorrsquos benefithowever is clearly a lsquosecondaryrsquo considerationhellip lsquo[T]he ultimate aim is by this incentive to stimulate artis-tic creativity for the general public goodrsquordquo


drsquoauteurrsquo While not defined in the Act the word lsquoauthorrsquo conveys a sense of cre-ativity and ingenuityrdquo44 The evocations of authorial dignity obviously involved inthe phrase ldquole droit drsquoauteurrdquo have little to do with the pure public interestinstrumentalism of the American approach that Justice Deacutecary went on to invokeimmediately thereafter45

One may understandably suspect that there is no inherent need to pointout this ambiguous convergence of theoretical models So long as courts applythe very same creativity requirement perhaps we need not care whether they doso in the name of ldquole droit drsquoauteurrdquo or in the name of the public interest46

Nonetheless the Federal Court of Appealrsquos recent treatment of the originalityquestion in the Law Society case suggests not only an abandonment of the cre-ativity requirement altogether but also a somewhat puzzling effort to mix thefairness to the author concerns of the misappropriation model with the publicinterest concerns of the public interest model Consider for example JusticeLindenrsquos formulation of the purpose of copyright law

Broadly speaking the purposes of Canadian copyright law are to benefitauthors by granting them a monopoly for a limited time and to simultane-ously encourage the disclosure of works for the benefit of society at largehellipCopyright law should recognize the value of disseminating works in terms ofadvancing science and learning enhancing commercial utility stimulatingentertainment and the arts and promoting other socially desirable ends Inorder to realize these benefits however creators must be protected from theunauthorized exploitation of their works to guarantee sufficient incentives toproduce new and original works The person who sows must be allowed toreap what is sown but the harvest must ensure that society is not deniedsome benefit from the crops Perhaps Lord Mansfield best characterized thetension over two centuries ago when in the case of Sayre v Moore (1785)102 ER 139 at 140 1 East 361n at 362 he stated

we must take care to guard against two extremes equally prejudicialthe one that men of ability who have employed their time for the serv-ice of the community may not be deprived of their just merits and thereward of their ingenuity and labour the other that the world may notbe deprived of improvements nor the progress of the arts be retarded

44 Tele-Direct supra note 4 at 308 [italics added] The significance of the fact that there is in Canada both anEnglish and a French version of the Act each of equal weight can hardly escape us

45 For comparative discussion of American and Continental European copyright doctrine and thought seeNeil Netanel ldquoCopyright Alienability Restrictions and the Enhancement of Author Autonomy A NormativeEvaluationrdquo (1993) 242 Rutgers LJ 347 Jane Ginsburg ldquoA Tale of Two Copyrights Literary Property inRevolutionary France and Americardquo in Sherman and Strowel supra note 14 at 131 Paul GoldsteinCopyrightrsquos Highway From Gutenberg to the Celestial Jukebox (New York Hill and Wang 1994) 165-196Paul Edward Geller ldquoMust Copyright Be For Ever Caught Between Marketplace and Authorship Normsrdquoin Sherman and Strowel supra note 14 at 159 Alain Strowel ldquoDroit drsquoauteur and Copyright BetweenHistory and Naturerdquo in Sherman and Strowel supra note 14 at 235

46 In fact it is by no means clear that the standard of originality embodied in the American case of Feist is inany sense necessarily different from the standard of originality suggested by Lord Robertson or the stan-dard of originality embodied in the tradition of authorial right See Gervais supra note 13 Jane CGinsburg ldquoThe Concept of Authorship in Comparative Copyright Lawrdquo (2003) 52 DePaul L Rev 1063


The challenge facing this Court and copyright law generally is to find a fairand appropriate equilibrium that achieves both goals47

Central to the Courtrsquos formulation is not only the ldquoappropriatenessrdquo of thedesired equilibrium but also its ldquofairnessrdquo not only the ldquoprogress of the artsrdquobut also the ldquojust meritsrdquo of authorial production A concern with fairness to theauthor is therefore central to the Courtrsquos understanding Yet this concern appearsnot as an effort to vindicate authorial dignity in Lord Robertsonrsquos sense butrather by way of the agricultural metaphors that belong to the misappropriationmodel ldquoThe person who sowsrdquo the Court tells us ldquomust be allowed to reapwhat is sownhelliprdquo48 Thus there is no mistaking the sustained hold of LordHalsburyrsquos misappropriation model the ldquogrievous injusticerdquo49 involved in reapingwhere one has not sown The fairness concern that animates the Court is in thatsense a concern over the unfairness of misappropriation At the same time how-ever the Court carefully insists that the harvest must ensure that society is notdenied some benefit from the crops One can surmise that while no particularindividual may misappropriate anotherrsquos labour society as a whole has a legiti-mate interest in such misappropriation Society is not subject to the obligation offairness towards the authormdashonly individuals are The ldquogrievous injusticerdquo suf-fered at the hands of another is somehow overlooked where that other is socie-ty as such The ambivalence that traverses the Courtrsquos construction is striking theCourt cannot frankly adopt a public interest orientation because it wants to befair to the author but it cannot be unambiguously fair to the author because itwants to account for the public interest The effort to be fair to the author findsitself trumped by the public interest just as the public interest cannot proceedunobstructed by scruples about fairness Thus although the Court formulates itstask as that of finding an equilibrium it seems destined to find an uneasy com-promise that may fail to satisfy either of the stated goals50

There seem to be four possible responses to this dilemma One mayleave things as they are hoping that the ambiguity the Court wants to call anequilibrium does not show up too often Second one may rid oneself of the scru-ples about fairness and so join the public interest model wholeheartedly alongthe lines of Feist by adopting the view that fairness concerns arising out of a per-sonrsquos investment of labour are not relevant to copyright law Third one may ridoneself of any concern for the public interest and assert the misappropriationmodel unmodified and so enshrine the sweat of the authorrsquos brow as againstpublic interest concerns Fourth one may take up the kernel of truth in the taskthe Court sets for itself and attempt a vision of copyright law that genuinely syn-

47 Law Society supra note 2 at 182-183 [footnotes omitted]48 Ibid at 18349 Walter v Lane supra note 15 at 54550 In regards to the effort to blend the fairness concerns of the misappropriation model with the public inter-

est concerns of the public interest model consider the comments of Binnie J in Theacuteberge v Galerie drsquoArtdu Petit Champlain Inc 2002 SCC 34 lthttpwwwlexumumontrealcacsc-sccenpub2002vol2html2002scr2_0336htmlgt [2002] 2 SCR 336 at 355 ldquoThe Copyright Act is usually presented as a balancebetween promoting the public interest in the encouragement and dissemination of works of the arts andintellect and obtaining a just reward for the creator (or more accurately to prevent someone other thanthe creator from appropriating whatever benefits may be generated)rdquo


thesizes as opposed to merely juxtaposes the seemingly opposed poles of theauthor-society relation It is this kernel of truth that I now wish to bring into relief

It is true that one may regard the above passage from Justice Lindenrsquosdecision as particularly ambiguous But I wish to regard it rather as an opportu-nity The passage is as unable to give up fairness concerns as it is to forgo pub-lic interest concerns In so doing it envisions the possibility of an as yetunarticulated convergence

The problem with the Courtrsquos formulation is not that it seeks to holdauthor and public together but that it misconceives the nature of their relationIt simply juxtaposes these two poles such that each limits the other externallyas awkward trumps instead of attempting to view their relation as aspects of asingle whole called copyright law From the standpoint of that unified and unify-ing vision the problem with the misappropriation model is not that it places theirreducible principle of fairness to the author at the heart of copyright law butthat it misunderstands the nature of authorship and of the right arising there-from It thereby generates a view of the public domain as a kind of deus ex machi-na that unaccountably asserts priority over the very principle of fairness thatpurportedly informs copyright law Similarly the problem with the public interestmodel is not that it focuses on the importance of the public domain but that itdoes so in a manner that reduces the author to a merely functional secondaryrole as if copyright to paraphrase Jane Ginsburgrsquos bon mot were some sort ofevil half way house on the way to the public domain51 As we shall see by way ofconclusion Lord Robertsonrsquos authorship model contains the promise of a genuineconvergence because it suggests the possibility of conceiving the irreducible prin-ciple of authorial dignity as a principle that contains its own internal limit

I have argued elsewhere52 that the irreducible principle of authorial dig-nity in copyright law is indeed necessarily self-limiting I articulated that argu-ment as a rights-based account of the ideaexpression dichotomy A briefsummary follows

The ideaexpression dichotomy provides that an authorrsquos ideas are notsubject to copyright protection only her expression of those ideas is Thus theplaintiff in a copyright action must show not that her ideas have been adoptedby the defendant but that the defendant has copied the plaintiffrsquos expressionAssume for a moment that you use or adopt in your own work an idea drawnfrom another personrsquos work without copying that other personrsquos expression ofthe idea Say for example that you write an original play developing the idea ofldquostar-crossed loversrdquo This does not mean that you have reproduced the text ofRomeo and Juliet (ie William Shakespearersquos expression of that idea) but thatyou have expressed the idea anew To use in onersquos own work ideas drawn fromanotherrsquos is necessarily to exercise onersquos own expressive capacities It is to say itin onersquos own words Strictly speaking we might say that ideas per se cannot pos-

51 Ginsburg supra note 46 at 1068 ldquoCopyright cannot be understood merely as a grudgingly tolerated way-station on the road to the public domainrdquo

52 Abraham Drassinower ldquoA Rights-Based View of the IdeaExpression Dichotomy in Copyright Lawrdquo (2003)16 Can JL amp Jur 3


sibly be copied they can only be (re-)expressed anew This is why the copyrightcase law speaks not of copying ideas but of ldquoadoptingrdquo or ldquousingrdquo them53

The lesson to be drawn from this thesis (ie that ideas per se cannot becopied) is that where the defendant expresses an idea in his own words theplaintiff cannot complain of a violation of her copyright because her own claimto copyright is but an affirmation that persons have a right to their expressionThe ideaexpression dichotomy is in this sense an affirmation of the equality asauthors of the parties to a copyright action To the extent that the defendant hasnot copied the plaintiffrsquos expression but has instead expressed an idea anew thedefendant has exercised his own authorship The ideaexpression dichotomypermits the defendant to avail himself of ideas in pursuit of his own originalexpressionmdashhis own authorship The ideaexpression dichotomy thus defines thescope of the plaintiffrsquos copyright from the standpoint of the partiesrsquo equality asauthors The limits of the plaintiffrsquos right (ie the lawrsquos refusal to copyright ideas)are the contours of a public domain that as a matter of equality the plaintiff her-self must be held to recognize One might say that the public domain is not onlya space containing freely available materials It is also a fundamental condition offree and equal interaction between persons in their capacity as authors The pub-licrsquos domain is the domain of fair interaction

Equality in authorship then is the concept of fairness that the author-ship model generates On the one hand the plaintiffrsquos authorship is recognizedin the requirement that the defendant not copy her expression On the otherhand the possibility of the defendantrsquos authorship is preserved and recognizedin the free availability of the ideas expressed The equality of the parties asauthors is affirmed in the simple proposition that the defendant may draw frombut not copy the plaintiffrsquos work

Thus like the misappropriation model the authorship model places fair-ness to the author at the very centre of copyright law Yet unlike the misappro-priation model the authorship model formulates this fairness not from thestandpoint of the value of the authorrsquos labour but from the standpoint of theauthorrsquos intellectual relation to her work By focusing on the authorrsquos intellectualrelation to her work the authorship model narrows the field of the authorrsquos copy-right from the generality of her labour as such to the specificity of her creativityIn so doing the authorship model comes to resemble the public interest modelin that it posits not the authorrsquos labour per se but rather only the specific labourof authorshipmdashie ldquocreativityrdquo or ldquoconstructionrdquomdashas constitutive of the authorrsquoscopyright Thus it shares the public interest modelrsquos necessary indifference tothe problem of misappropriation Yet unlike the public interest model theauthorship model formulates that indifference from the point of view of author-ship itself The authorship model does not confuse indifference to the so-calledproblem of misappropriation with indifference to authorial dignity as such54 It

53 See for example Moreau v St Vincent [1950] Ex C R 198 at 203 (Can Ex Ct) ldquoEvery one may freelyadopt and use the ideas but no one may copy his literary work without his consentrdquo

54 By contrast the public interest model does seem to confuse indifference towards the problem of misap-propriation with indifference towards authorial dignity as such This confusion suggests that ironically thepublic interest model shares with the misappropriation model the view that fairness towards the author isfairness towards the author as labourer


limits the authorrsquos entitlement but it does not reduce that entitlement to a merefunction of the public interest

The authorship model thus reconfigures the opposition between authorand public that informs the encounter between the misappropriation model andthe public interest model From the standpoint of the authorship model thosetwo models are but flipsides of each other in that each presupposes an opposi-tion between author and public By contrast the authorship model challengesthe shared presupposition that structures the debate It neither takes sides interms of the perceived opposition between author and public nor attempts toldquobalancerdquo the assumed poles as if they were heterogeneous or incommensu-rable values but rather seeks to resolve that opposition into a theory of copy-right able to grasp both aspects of the authorpublic relation within the largerwhole of which they are equally necessary parts

Neither the concept of the ldquoauthorrdquo nor that of the ldquopublicrdquo emergesunchanged from this reconfiguration Under the aegis of the authorship modelthe author is creative rather than merely productive At stake is the authorrsquos intel-lectual relation to her work rather than her relation to others as competitors forthe value of her labour55 The requirement of originality thus polices the differ-ence between the generality of a personrsquos labour and the specificity of herauthorship granting copyright protection only on the basis of her authorship andleaving other aspects of her possible entitlements arising from her mere labourto other legal regimes such as that of unfair competition But this narrowing ofthe concept of the author is necessarily paralleled by a narrowing of the conceptof the public At stake is not the generality of the public interest as such butrather the specificity of the public domain as a matter of copyright law ndash that isas a matter of the fair interaction between persons considered in their equalcapacity as authors Under the aegis of the authorship model the relevantdomain of the public is the domain specified in and through the recognition ofthe defendantrsquos equal dignity as an author The irreducible principle of authorialdignity recognizes and generates its own self-limitation under the rubric ofequality As Lord Robertson put it ldquothe word lsquoauthorrsquo seems to me to presenta criterion consistent with the widest application of the Act to all who can claimas embodying their own thought whether humble or lofty the letterpress ofwhich they assert the authorshiprdquo56 From the standpoint of authorship then

55 In University of London Press v University Press supra note 3 at 610 Peterson J famously stated ldquohellipthere remains the rough practical test that what is worth copying is hellip worth protectingrdquo The first ldquoworthrdquoin this sentence is a matter of value The second is a matter of entitlement The slippage from value toentitlement is precisely what the creativity standpoint seeks to preclude Otherwise it would be hard toimagine an instance of copying that would not give rise to liability

56 Walter v Lane supra note 15 at 562 [italics added]


fairness to the author is not at odds with the public domain On the contraryauthorial right and public domain appear as aspects of a single concept Beingfair to the authorship of each is being fair to the authorship of all57

57 March 5 2004 The Supreme Court of Canada handed down its judgment in the Law Society case yester-day March 4 2004 at 945 am The Editors of this Journal have kindly permitted me to add the followingremarksmdashwritten in hastemdashto a paper that had already been typeset Doctrinally the Supreme Court dis-missed both the ldquosweat of the browrdquo and the ldquocreativityrdquo standards in favour of a ldquoskill and judgmentrdquostandard Recalling the traditional vision of copyright law as the balance between ldquopublic interestrdquo andldquojust reward for the creatorrdquo the Court states that whereas the ldquocreativityrdquo approach is too public-centredthe ldquosweat of the browrdquo approach is too author-centred The Court thus presents its own ldquoskill and judg-mentrdquo standard as a ldquoworkable yet fair standardrdquo Yet the Court can differentiate its own ldquoskill and judg-mentrdquo standard from the ldquocreativityrdquo standard only by mischaracterizing the latter as involving somethingldquonovelrdquo ldquouniquerdquo or ldquonon-obviousrdquo That is simply not the case The Courtrsquos suggestion that the Feist cre-ativity standard implies novelty is clearly mistaken It is true that in terms of the paradigmatic positions for-mulated in Walter v Lane the Court seeks to side neither with Lord Halsbury nor with Lord Robertson butrather with Lord James who occupied a middle position requiring ldquoskillrdquo as distinct from Lord Halsburyrsquosldquolabourrdquo and Lord Robertsonrsquos ldquoconstructionrdquo However since Lord James found that the verbatim reportsat issue in Walter v Lane were subject to copyright protection it would seem that Lord Jamesrsquo standard ndashdespite the common use of the word ldquoskillrdquomdashis too low for the Supreme Court of Canada Few matterscould be clearer than that the Supreme Courtrsquos judgment represents an unambiguous rejection of Walter vLane My point is that misleading differences in nomenclature aside the Supreme Courtrsquos ldquoskill and judg-mentrdquo standard is best grasped as a vindication of Lord Robertsonrsquos authorship standpoint Theoreticallythe Courtrsquos affirmation of copyright as a balance between fairness to the author concerns and public inter-est concerns continues to assert and develop the specificity of Canadian copyright as against both the mis-appropriation modelrsquos concern with the author as mere labourer and the public interest modelrsquosindifference to fairness concerns It is to be hoped that subsequent Canadian jurisprudence will enrich anddevelop the content of the ldquoskill and judgmentrdquo standard as well as the vision of copyright law as a bal-anced convergence of authorial and public domains under the animating rubric of the authorship model


UNIVERSITY OF TORONTO

Faculty of Law

PUBLIC LAW AND LEGAL THEORY RESEARCH PAPER NO 04-10

This paper can be downloaded without charge at

The Social Science Research Network Electronic Paper Collection

httpssrncom abstract=621184

SWEAT OF THE BROW CREATIVITY AND AUTHORSHIP

ABRAHAM DRASSINOWER

ON ORIGINALITY IN CANADIAN COPYRIGHT LAW



105


Abraham Drassinower

107





Abraham Drassinower






(2003ndash2004) 1 UOLTJ 105





































































































































105


Abraham Drassinower

107





Abraham Drassinower






(2003ndash2004) 1 UOLTJ 105



































































































































107





Abraham Drassinower






(2003ndash2004) 1 UOLTJ 105


































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































Documents

Sweat of the Brow, Creativity and Authorship: On ... · Protection: The Myth of Tele-Direct” (2003) 16 I.P.J. at 561. For recent judicial discussion, see CCH Canadian ... The originality