Original facts: skill, judgment, and the public domain.

• Author: Scassa, Teresa

It has long been said that facts cannot be protected by copyright. Copyright jurisprudence has been less than clear, however, about what constitutes a fact, and about the reasons why facts cannot be copyrighted. The Supreme Court of Canada, in its recent decision in CCH Canadian Ltd. v Law Society of Upper Canada, restated the principle that facts cannot be copyrighted. At the same time, the Court set a standard for originality that can easily be interpreted so as to offer copyright protection to facts.

In this paper, the author explores the concept of "facts" and the way in which Canada's standard for originality might be used to extend copyright to facts. She focuses on the problems that face courts in cases involving "original facts"--those facts that owe their existence to the exercise of individual intellectual effort. She identifies and discusses three kinds of original facts: those discovered through skill and judgment, those that are valuable due to the particular selection or arrangement, and those that are not necessarily true. Jurisprudence from Canada is compared with American and Australian cases, revealing different ways of applying the principle that there is no copyright in facts. The author examines the policy reasons why facts should not be copyrightable, and argues for an interpretive approach that leaves facts in the public domain.

Il a ete longtemps affirme que les faits ne pouvaient pas etre proteges par le droit d'auteur. La jurisprudence dans le domaine du droit d'auteur est cependant loin d'etre precise sur ce qui est de savoir ce que constitue un fait et sur les raisons pour lesquelles les faits ne sauraient etre proteges par le droit d'auteur. Dans un recent arret, CCH Canadian Ltd. v. Law Society of Upper Canada, la Cour Supreme du Canada a reitere le principe selon lequel les faits ne pouvaient etre proteges par le droit d'auteur. Toutefois la Cour a developpe une condition d'originalite qui pourrait facilement permettre, par une interpretation extensive, une protection des faits par la loi sur le droit d'anteur. Dans cet article, l'auteur examine la notion de "faits" et la maniere dont il est possible d'interpreter le critere d'originalite an Canada pour etendre anx faits la protection offerte par le droit d'auteur. L'auteur se penche particulierernent sur les problemes auxquels les tribunaux sont confrontes dans les cas portant sur des "faits originaux"; faits qui doivent leurs existences fi un effort de nature individuel et intellectuel. L'auteur identifie et met en lumiere trois types de faits originaux : ceux qui sont les produits du talent et du jugement, ceux qui ont acquis de la valeur a la suite d'un effort de selection ou d'arrangement et ceux qui ne sont pas necessairement vrais. La jurisprudence canadienne est ensuite comparee a la jurisprudence des Etats-Unis et a celle de l'Australie afro de mettre en evidence les differentes manieres dont le principe selon lequel les faits ne sauraient beneficier de la protection du droit d'auteur est applique L'auteur examine egalement les raisons politiques avancees pour fonder la proposition selon laquelle les faits ne devraient pas etre protegee par le droit d'auteur et milite pour une approche interpretative qui preconise le maintien des faits dans le domaine public.

Introduction I. The Originality Threshold II. Original Facts III. An Attempt to Define "Facts" A. Information That Is Knowable Only Through the Exercise of Considerable Skill and Judgment B. Information That Is Useful or Valuable Only Because of the Way in Which It Has Been Selected or Arranged C. Information That Is Not Necessarily "True" IV. Copyright and Facts A. United States B. Canada C. Facts and the Public Domain Conclusion Introduction

The recent decision of the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada (1) has, in theory at least, put to rest the debate in Canadian copyright law over the appropriate standard of originality. (2) The unanimous Court defined originality as requiring an exercise of "skill and judgment" on the part of the author of the work. They explicitly rejected labour alone as a basis for copyright protection, and rejected the higher standard of "creativity". In elaborating on the standard of "skill and judgment", Chief Justice McLachlin stated that 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." (3)

In the cases that will follow, courts will address the important question of originality, and more specifically consider how to maintain a distinction in the analysis between the application of the standard for originality to the work itself to determine if copyright subsists, and the extent of any infringement of copyright. In other words, as Ginsburg stated in her article on copyright in informational works, "the difficult pragmatic question becomes the appropriate scope of protection." (4) A compilation of facts may be "original" as a result of a selection or arrangement of facts involving skill and judgment. Determining the scope of protection for selections or arrangements of facts remains a thorny problem. It is also an issue that bears directly upon the scope of the public domain in Canada.

In an earlier comment on the CCH Canadian decision, (5) I argue that the "skill and judgment" standard for originality is not, in practical terms, much different from the US Supreme Court's "modicum of creativity" threshold established in Feist Publications Inc. v. Rural Telephone Service Co. Inc. (6) Both thresholds require some intellectual contribution (however modest) to the creation of the work. But the choice by the Supreme Court of Canada to extract language from the "sweat of the brow" line of cases in setting the standard for originality sends an ambiguous message. In addition, unlike the US Supreme Court, the Canadian Court does not take any particular pains to emphasize the difference between the analysis required to determine if there is sufficient originality for copyright to subsist, and the ensuing analysis of the scope of copyright. (7) While the Canadian Supreme Court accepts that facts are not the subject matter of copyright, the concept of "fact" is given no elaboration, and little direct attention is given to issues of the scope of copyright in fact-based works.

In this paper, I will argue that the "skill and judgment" standard formulated by the Court must be carefully applied so as not to extend copyright protection to what I call "original facts". I will explain this concept in greater detail later in the paper. For now, it is enough to say that original facts are those that can be said to result from an exercise of skill and judgment on the part of an individual. The term "original facts" recognizes that the concept of a fact is considerably more nuanced than much copyright case law would allow. I will argue that there is an important reason to distinguish between the skill and judgment that gives rise to facts and that which gives rise to a copyright-protected work. In doing so, I will argue that the "skill and judgment" standard embraced by the Court in CCH Canadian must be read alongside its concurrent statement that there is no copyright in facts, (8) and the Court's defence of a vigorous public domain. (9)

1. The Originality Threshold

   Copyright legislation recognizes and gives legal status to authorial acts. The concept of "originality" is descriptive of the kind of authorial effort that warrants protection through copyright's significant statutory monopoly. Too low a standard of originality gives rise to potentially excessive legal protection for works; too high a standard might accord too little protection to achieve the objectives of copyright legislation. (10) As Chief Justice McLachlin stated in CCH Canadian:

   When courts adopt a standard of originality requiring only that something be more than a mere copy or that someone simply show industriousness to ground copyright in a work, they tip the scale in favour of the author's or creator's rights, at the loss of society's interest in maintaining a robust public domain that could help foster future creative innovation. (11) Defining originality in such a context is not simply a statement about authorship; it is a ruling on the economic boundaries of various activities.

   The relationship between authorship and the economy is a dynamic one. Copyright is arguably intended to provide an incentive to authors to produce new works for the benefit of society. (12) The kinds and categories of authorship are presumably not closed, just as the kinds and categories of economic activity evolve over time. The recent shift towards an information economy has had an impact on the kinds of works for which copyright protection is sought, and on the way in which such works are produced. The paradigm of the individual author striving to create an original work has, in many contexts, been replaced by an investment of capital and labour to produce works that reflect a collective routine effort to generate a compilation for a commercial marketplace. As the centrality of the individual author diminishes, the drive to link the copyright monopoly to the author's substitute-capital and labour--increases. The "sweat of the brow" threshold for originality in some copyright jurisdictions reflects a recognition of labour and capital as a stand-in for the more traditional author.

   Significantly, however, "sweat of the brow" is an older doctrine, having its roots in nineteenth-century English case law. These early cases still largely recognized individual authorial effort. The context in which the works at issue were created can be distinguished from the contemporary context. The role of the individual as an author of works can change significantly even within the context of particular kinds of works. For example, where at one time the individual authorial...