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

20 Pages Posted: 28 Nov 2004  

Abraham Drassinower

University of Toronto - Faculty of Law

Abstract

The paper offers a theoretical analysis of the tension between "sweat of the brow" and "creativity" approaches to the "originality" requirement in recent Canadian copyright jurisprudence. The paper formulates that tension as one between two different and incompatible versions of the very meaning and purpose of copyright law. On the one hand, the "sweat of the brow" approach reflects a "misappropriation" model of copyright law, for which fairness to the author as laborer is the central and animating concern. On the other hand, the "creativity" approach reflects a "public interest" model of copyright law, for which the production and dissemination of authorial works in the name of the public interest is the central and animating concern. In that context, the paper reveals the neglected influence of a third vision of copyright law: the "authorship" model. On that basis, the paper shows that, because it is not framed in terms of the traditional opposition between author and public, the authorship model offers a vision of copyright law for which respect for authorship is consistent with the public domain. In so doing, the paper engages themes fundamental to the Supreme Court of Canada's recent landmark decision in CCH Canadian Ltd. v. Law Society of Upper Canada.

Suggested Citation

Drassinower, Abraham, Sweat of the Brow, Creativity and Authorship: On Originality in Canadian Copyright Law. University of Ottawa Law & Technology Journal, Vol. 1, p. 105, 2003-2004. Available at SSRN: https://ssrn.com/abstract=621184

Abraham Drassinower (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
(416) 978-4408 (Phone)

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