Not all works attract copyright protection - only an author's “original” work can qualify. At a minimum, this means that the author must not be merely copying someone else's work.1 There are, however, competing standards for originality which have been accepted by courts in various jurisdictions and at different times. In Canada, the modern law of copyright requires the “exercise of skill and judgment” before a work is considered to be a copyrightable original work.2
5. (1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work …
Although it is central to copyright law, the word “original” is not itself defined in the Copyright Act, although section 2 provides an inclusive definition for the phrase “every original literary, dramatic, musical and artistic work”:
2. In this Act, […] “every original literary, dramatic, musical and artistic work” includes every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression, such as compilations, books, pamphlets and other writings, lectures, dramatic or dramatico-musical works, musical works, translations, illustrations, sketches and plastic works relative to geography, topography, architecture or science […]
The concept of “originality” thus relies heavily on definitions provided in the jurisprudence.
The leading authority on originality is the Supreme Court of Canada's decision in CCH Canadian Ltd v Law Society of Upper Canada,4 where McLachlin C.J. writing for a unanimous Court held that “skill and judgment” is the minimum standard required for a work to attract copyright protection:
For a work to be “original” within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. For example, any skill and judgment that might be involved in simply changing the font of a work to produce “another” work would be too trivial to merit copyright protection as an “original” work.5
In short, for a work to be original, it must meet the following criteria:
In the case of CCH, the Court was concerned with legal texts, in particular: reported judicial decisions, headnotes preceding reported judicial decisions (i.e. paragraphs summarizing the decision), annotated statutes, case summaries, topical indices, legal textbooks, and monographs.7 Each of these were held to have sufficient exercise of skill and judgment to attract copyright protection, except for the individual reported judicial decisions. As for the reported decisions, the Court held that the compilation of decisions as a whole may be entitled to copyright protection since the selection and arrangement of the compilation may involve skill and judgment; however, the judicial decisions in and of themselves did not warrant copyright protection, and any editing done to them (including adding factual information such as date, counsel, location, and title, and correcting for grammar and spelling) involved only “trivial” amounts of skill and judgment, and were more properly characterized as “mechanical exercises”.8
In R v Allen,9 the Alberta Provincial Court dealt with a case involving map books and copies of such. The author of the map books which were alleged to be copied was a self-taught man who had created accurate maps of the City of Calgary by using aerial photos of the city along with various sources for additional information such as locations of buildings and zones. The Court held that the “pagination, the grid system, the spiral, the labelling, the overlapping, the street index, the features index, together add up to an artistic and literary work that is full of originality”.10 However, the Court noted that the positions of the roads were “facts” in which no copyright could subsist the originality arose in the presentation of the roads and not the roads themselves.11 As for the allegedly infringing maps, which were copied by tracing and then editing for colours and lines, the Court held that these changes could not be called “original”, as they “did not involve any intellectual effort”.12
In setting out the “skill and judgment” standard, the Supreme Court purported to strike a middle ground between two competing approaches to originality - the so-called “sweat of the brow” standard, and the “creativity” standard - which were then prevalent in the common law, and which are still prevalent in various foreign jurisdictions.13
The “sweat of the brow” standard, sometimes called the “industriousness” or the “labour” standard, holds that authors are entitled to have protection over the fruits of their labour (whether as a result of effort or expense). This approach is sometimes said to be premised on a natural rights or Lockean theory of “just desserts”.14 Historically, the “sweat of the brow” doctrine was the predominant view of copyright originality, particularly prior to the 1990s.15
One of the earliest authorities for this doctrine was the House of Lords decision in Walter v Lane.16 The case involved reporters' stenographic transcriptions of speeches given by the Earl of Roseberry, which were typed and published in The Times newspaper. The defendant in the case published a book which compiled speeches including the transcribed speeches in question. The House of Lords therefore had to decide whether the reporters' work attracted copyright protection. A majority of the Lords held that the transcribed speeches were copyrightable, but they disagreed on the basis of protection, foreshadowing a debate on the concept of “originality” that would be fully revived in the late 20th century. Lord Halsbury, the senior judge on the panel, focused on the “grievous injustice” done in this case, and held that The Times' exclusive right to copy was infringed. He further noted that the reporters were “authors” by virtue of the fact that they produced a protected class of work (i.e. a book) under the Copyright Act. Lord Davey generally concurred with this judgment.
Lord Brampton, on the other hand, opined that at least some skill beyond mere mechanical labour was required, but the stenographers' skill qualified since it “involved considerable intellectual skill and brain labour beyond the mere mechanical operation of writing”.
Lord Robertson, the sole dissenting judge, argued that copyright protection required the skill of authorship, and not merely any type of skill. For Lord Robertson, the stenographers' work was like that of a phonograph, and it would be as absurd to award copyright to the stenographers as it would be to award copyright to a phonograph.
Interestingly, the word “original” did not appear in the UK Copyright Act until 1911, eleven years after Walter v Lane. However, the 1911 Act did not change the interpretation of the originality requirement. This is exemplified in the case of University of London Press Ltd v University Tutorial Press Ltd,17 where the Chancery Division held that exam papers were original literary works protected by copyright. Petersen J.'s dictum that “what is worth copying is prima facie worth protecting” has become an oft-cited justification typical of the “sweat of the brow” doctrine.
In Canada, where courts decided cases generally in line with UK jurisprudence, the sweat of the brow doctrine had widespread acceptance until CCH in 2004. For example, in U & R Tax Services Ltd v H & R Block Canada Inc,18, the Federal Court stated that “[i]ndustriousness ('sweat of the brow') as opposed to creativity is enough to give a work sufficient originality to make it copyrightable.”19 As a result, tax forms developed by the plaintiff which closely resembled government forms were original works worthy of copyright protection because the creation of the form involved “labour, skill and judgment on their part”.20
The creativity standard is the requirement for originality in the United States. It was established by the United States Supreme Court in the landmark case of Feist Publications, Inc v Rural Telephone Service Co.21 The case involved the copyrightability of telephone directories, which were in essence no more than compilations of facts. The Court grappled with the tension between two established principles in copyright law - that facts cannot be copyrighted, and that compilations of facts could be. Justice O'Connor, writing for the Court, held that the key to resolving this tension was the doctrine of creativity:
The key to resolving the tension lies in understanding why facts are not copyrightable. The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works, so long as the similarity is fortuitous, not the result of copying. To illustrate, assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable. [Citations omitted.]22
The Feist decision has continued to be the leading authority for originality in the United States. The Supreme Court of Canada purportedly rejected this standard in CCH, claiming that the “skill and judgment” standard struck a balance between the “sweat of the brow” doctrine and the “creativity” threshold:
Requiring that an original work be the product of an exercise of skill and judgment is a workable yet fair standard. The “sweat of the brow” approach to originality is too low a standard. It shifts the balance of copyright protection too far in favour of the owner’s rights, and fails to allow copyright to protect the public’s interest in maximizing the production and dissemination of intellectual works. On the other hand, the creativity standard of originality is too high. A creativity standard implies that something must be novel or non-obvious — concepts more properly associated with patent law than copyright law. By way of contrast, a standard requiring the exercise of skill and judgment in the production of a work avoids these difficulties and provides a workable and appropriate standard for copyright protection that is consistent with the policy objectives of the Copyright Act.23
Despite this proclamation, however, some commentators have argued that the Canadian “skill and judgment” standard is, in practice, very close to the creativity standard.24 Others have argued that the Court in CCH misinterpreted Feist as equating “creativity” with “novelty” or “uniqueness”.25 While the standards may be small in practice, the distinction drawn by the Supreme Court in CCH may prove to be a warning against importing loaded conceptions of originality from foreign jurisprudence.26