Copyright in Canada – Initial Hurdles and Scope

Copyright in Canada – Initial Hurdles and Scope

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  Pre-CCH: originality required merely that the work “originated from” the author and was not copied
  
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  Originality and its relationship to the idea-expression dichotomy: according to Lametti, the “idea-expression dichotomy is the larger initial hurdle.” The expression must be original but that expression cannot be merely an idea. SH: I have a different view of the fn of originality and idea-expression dichotomy. Originality is the initial hurdle – a work, considered in its entirety, must be original in order to attract protection. At the level of infringement, the Q is whether what has been taken by the alleged infringer is idea or expression. When determining whether a mere idea has been taken, the notion of “originality” in its broader and more lay-person sense becomes important. Is this something that has been “done before” (e.g. scenes a faire) or is this something wildly original? This corresponds to the approach taken by court in Nichols: we assume that the ptf’s play is altogether original…but her copyright did not cover everything that might be drawn from her play; its content went to some extent into the public domain. This also seems to correspond to the approach taken in the computer software cases. Altai separated idea and expression at the stage of determining whether two computer programs were substantially similar.
  
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  CJ in CCH: CR protects the expression of ideas, and not the ideas themselves, even if they are original. Quotes Sunny Handa: “The originality requirement must apply to the expressive element of the work and not the idea.” [SH: this doesn’t really fit with an understanding of idea-expression as continuum where lines are drawn arbitrarily based on specificity/generality].
  
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  Rosen’s view of the idea-expression dichotomy: he adopts the view articulated in Nichols – the “abstractions test”. There is an indefinitely large range of possible ideas of increasing specificity which can be overlaid upon a work. At some point in this range, idea is distinguishable from expression. Ideas are abstractions or generalities which will not be protected. The dichotomy is not a dichotomy at all but rather a continuum, and the court draws the line arbitrarily, at the point best suited to advancing the various goals of CR law, i.e. reward authors, provide incentives for further creation, and encourage the free-flow of and access to ideas for the benefit of the general public. DL: seems to suggest that idea/expression dichotomy might be used in this way to filter out what is actually new. Adding specificity = adding something novel.
  
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  DL: There is a movement between the specific and general/expression and idea/private and public domains: As author builds on general ideas, he creates more specific expression which might be protectable. The specific may, however, become general over time. An original feature of a computer program (e.g. a pull down menu) may become an industry standard. A story-line may become a scene a faire. One can analogize this to a trademark (like Xerox) becoming generic.
  

??Idea/expression dichotomy as an instantiation of the test of originality in the context of literary, dramatic, artistic works and computer software??

Low standard: rewarding labour; sweat of the brow

Higher standard:

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  ensures preservation of the public domain (though must balance this with incentives to create)
  
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  utilitarian – perhaps fosters good art, good lit, good music
  
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  personhood – we protect that which is really a manifestation of the self
  

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  How do we deal with the kinds of works that consist of elements which are not protectable (e.g. judicial decisions, data, facts)? What is required to make compilations of such elements “original”
  

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  Standard not met b/c alphabetical by surname; garden variety white-pages; devoid of even slightest trace of creativity; not only unoriginal, practically inevitable.]
  

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  Standard not met b/c the compilation at bar was of such an obvious and commonplace character. A mechanical organization of routine data.
  

POINT: the content of the standard is shifting and depends a great deal on user expectations.

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  SH: perhaps suggests that factual compilations will rarely meet the standard of originality. Compilations are most useful when they accord with user expectations/industry standard. Moreover, even if someone comes up with an original organization, it might become industry standard and thus compilation will no longer be protected
  

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  Is this a workable middle ground? Should “creative” have been left in there? Perhaps leaving out requirement of creativity makes standard more workable and legalistic, easier for the courts to handle.
  
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  Is this standard applicable “across the board”? CJ seems to suggest that it is. But…paintings done by DL’s 3-year old definitely don’t evince an exercise of skill and judgment, though they are creative!
  
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  Perhaps this standard merely suggests that sweat of the brow is not enough. Something more is required. The question then becomes what constitutes that “something more.” There is room for a contextual interpretation of originality wrt different types of works (recall that DL believes that the resource shapes the contours of property rights and obligations and the legal rules by which that resource is governed). Works which are in and of themselves creative may meet the standard. Compilations, on the other hand  skill and judgment will be necessary.
  
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  SH: perhaps the confusion and debate that has been generated about standards of originality has arisen only because we are currently asking copyright to do too much. It was conceived of to protect literary works primarily (and perhaps artistic and musical ones as well). But we agree it is a stretch to use it as the primary governance tool for data compilations, computer software, etc.
  

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  See criteria for infringement, defences and fair dealing above
  

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  Should parody come w/in the scope of the fair dealing exemptions?
  
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  Spence distinguishes btwn two types of parody  weapon parody (humourous imitation of a work in order to comment on work itself); instrumental parody (humourous imitation or a work in order to comment upon something else; e.g. Cine-Avanti; Rogers v. Koons and DL’s skit night example).
  
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  The problem with parody is that at it MUST copy the work (i.e. infringe) in order to be successful. The genre depends on the viewer, reader, etc. being able to identify the imitated work.
  
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  Weapon parody would likely come w/in the scope of criticism and review but creator would have to acknowledge source in order for it be fair dealing (might be difficult).
  
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  Instrumental parody on the other hand may be more difficult to bring w/in the scope of fair dealing. In Cine-Avanti, the court rejects the “parody defense” reasoning that the alleged “parody” merely copied the work in order to exploit the commercial success and popularity of the work on which it was based.
  
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  Court in Cine-Avanti opened door to parody defense by examining American statute and literature on how parody should be treated (Spence). The court in CCH blew the door wide open by effectively adopting as law those purposive considerations which appear in the American statute. SH: the question seems then to be whether court would be willing to find fair dealing outside of the specific categories enumerated (perhaps analogous categories – e.g. news reporting in the public interest; parody might also be). Spence endorses, however, an interpretation of CR law which is consistent with free speech, and thereby allows for weapon parody but not instrumental parody.
  
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  Note that parody may bring to mind other IP governance tools. TM (would parody of a TM constitute deprecation?); Moral rights (is derogatory treatment of a work modification which is prejudicial to the author?)
  
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  Rogers v. Koons: sculpture which imitated CRed photo in order to comment upon the banality of society held not to be a fair use. DL doesn’t agree with decision. The sculpture likely did not affect the market for the photo. Also, post-modern art is based on appropriation.
  

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  Course packs and webCT
  
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  webCT with a general disclaimer/warning/policy
  
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  research in a for-profit setting?  Does it come under the exemption? Probably depends how closely the profit is tied to the research and what public interest the research might serve (e.g. of lawyers)