Download this Paper Open PDF in Browser

Of Silos and Constellations: Comparing Notions of Originality in Copyright Law

35 Pages Posted: 2 Feb 2010  

Elizabeth F. Judge

University of Ottawa - Common Law Section

Daniel J. Gervais

Vanderbilt University - Law School

Abstract

Originality is a central theme in the efforts to understand human evolution, thinking, innovation, and creativity. Artists strive to be “original,” however the term is understood by each of them. It is also one of the major concepts in copyright law. This paper considers the evolution of the notion of originality since 2002 (when one of the coauthors published an article entitled Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law) and continues the analysis, in particular whether the notion of “creative choices,” which seems to have substantial normative heft in several jurisdictions, is optimal when measured in more operational terms. The paper considers the four traditional silo-like notions of originality used in national legal systems and looks at the major international treaties for guidance in defining the parameters of an international notion of originality. It analyzes the silos and suggests that they take the form of constellations which cannot be defined or compared hierarchically or indeed as completely separate notions; rather, they overlap in myriad ways.

Keywords: copyright, originality, creativity, Feist, CCH

Suggested Citation

Judge, Elizabeth F. and Gervais, Daniel J., Of Silos and Constellations: Comparing Notions of Originality in Copyright Law. Cardozo Arts & Entertainment Law Journal, Vol. 27, 2010; Vanderbilt Law and Economics Research Paper No. 10-01. Available at SSRN: https://ssrn.com/abstract=1545986

Elizabeth F. Judge

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

Daniel J. Gervais (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615 322 2615 (Phone)

Paper statistics

Downloads
368
Rank
66,962
Abstract Views
1,686