The Evolution of Originality in Canadian Copyright Law: Authorship, Reward and the Public Interest

Abstract

Originality is a foundational concept in copyright law: it defines the works to which copyright attaches and delineates the scope of protection they receive. The Supreme Court of Canada, in its recent ruling in CCH Canadian Ltd. v. Law Society of Upper Canada, appears to have settled the conflict between creativity and sweat-of-the-brow standards for originality, espousing a compromise position requiring "skill and judgment." In this paper, the author aims to locate the evolution of the originality doctrine within the context of a foundational shift in Canadian copyright theory. When "benefiting authors" was copyright's only recognized purpose, originality was determined with reference to the author's rights: the emergence of a creativity threshold in Canada was infused with a personality-based vision of the author's rights; the industriousness threshold was informed by a perceived need to reward an author's labour. However, the Supreme Court in Theberge v. Galerie d'Art du Petit Champlain insisted that furthering the public interest in the production and dissemination of intellectual works is also a primary purpose of copyright. The CCH decision at the Supreme Court represents the first occasion on which a Canadian court has taken the public interest side of the copyright "balance" seriously when defining and applying the originality standard. The author argues that this elevation of public interest considerations provides a more suitable framework for developing copyright policy, particularly in the "information age." However, given the case-by-case nature of originality determinations and the tensions inherent in the Theberge balancing act, the author cautions that the actual consequences of this development remain to be seen.

JEL Classification: O34