Copyright Originality and Judicial Originality
University of Toronto Law Journal, Vol. 63, 2013, 385-417
33 Pages Posted: 20 Sep 2012 Last revised: 1 Nov 2017
Date Written: September 17, 2012
Judicial opinions, and especially trial judgments, would appear to differ significantly from the kinds of works that typically attract the attention of copyright law, because eligibility for copyright protection requires originality. Whether judicial opinions even enjoy copyright protection is a matter of some disagreement, but in any case, like most other forms of legal prose, they are usually collaborative products that reflect a wide range of imitative writing practices, including quotation, paraphrase, and pastiche. Yet the definition of originality in the copyright context turns out to have important commonalities with the generic expectations associated with judicial decisions. These questions come to the fore in recent disputes over various forms of copying in trial judgments -- involving copying from the pleadings (with or without attribution), and unattributed copying from law journal articles or from other judgments by the same judge or by others.
Keywords: judicial reasons, judgments, opinions, plagiarism, copying, legal writing
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