1

The Poverty of Value

An author’s work is not subject to copyright unless it is original. Originality is thus a cardinal criterion of copyrightability. It is the central category through which the law of copyright frames the formation of an author’s exclusive right to her work.1
This chapter examines the originality requirement in order to prepare the ground for the proposition that the subject matter of copyright law—an original work of authorship—is a communicative act. An original work is not a thing—whether intangible or otherwise—but an act whereby a person addresses others through speech. From the very outset (that is, at the level of the formation of the right), copyright law construes authors as speakers, originality as a speaking in one’s own words, and works of authorship as instances of speech in an ongoing conversation. An author’s work responds to those before her and addresses those who follow her. It arises from, and is directed toward a network of communicative acts of which it is irretrievably a part. It is not a metaphysical object or intangible commodity but a nodal point of an author’s interaction with others in and through speech.
The chapter prepares the ground for this view of the work as a communicative act by showing that the prevailing account of copyright law (that is, the instrumentalist or balance model of copyright) does not and cannot provide an adequate understanding of the originality requirement. The instrumentalist or balance model sees copyright law as a policy instrument designed to encourage and facilitate the production and distribution of works of authorship in the marketplace. Accordingly, the model focuses on the implementation of a balance between the creation and dissemination of works of authorship conceived as information commodities. It construes works not as instances of speech but as instances of economic value. Thus it ignores, in favor of its value, the specificity of the author’s speech as such.
The basic problem with the model is that not any and all value sounds as a matter of copyright law. The fundamental function of the doctrine of originality in the structure of copyright law is to distinguish copyrightable from uncopyrightable subject matter. Originality guards the entrance, so to speak, into copyright territory. It grants copyright to some but not all instances of economic value. It is thus literally constituted as a distinction between kinds of value. Precisely as such, originality cannot be generated out of the concept of value itself. As a quantitative category, value cannot ground the qualitative distinctions that are part and parcel of the very meaning and function of originality. Value cannot capture the specificity of authorship.
There is no doubt, of course, that works of authorship can and do have market value. My point is not that works of authorship are valueless, but that it is not as instances of value that originality grants them entrance into copyright territory. Originality is not about value per se. It is about authorship. This is why, framed as it is as an inquiry into the production and distribution of value, the instrumentalist or balance model cannot provide an understanding of originality.
Originality is the sine qua non of copyright protection. Our understanding of originality therefore pervades and permeates our understanding of all aspects of copyright. The encounter between speech and value as ways to understand originality is thus a deeper struggle about the concepts and metaphors in and through which we construe copyright law as a whole. From this point of view, the burden of this first chapter is a heavy one. It is to adumbrate a landscape in which, throughout the rest of this book, copyright will gradually come into relief as a juridical order addressing aspects of the interaction between human beings as speaking beings, rather than as a mechanism designed to supervise and facilitate the production and distribution of intangible commodities. The struggle over originality is a struggle between copyright visions.

From Labor to Authorship

The concept of originality has recently undergone significant transformation in both the United States and Canada. In 1991, in Feist Publications Inc. v. Rural Telephone Service Co. Inc., the Supreme Court of the United States unambiguously rejected “sweat of the brow” in favor of “creativity” as the governing originality standard in United States copyright law.2 Similarly, in 2004, in CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada unambiguously rejected sweat of the brow in favor of “skill and judgment” as the governing originality standard in Canadian copyright law.3 Both judgments present themselves as definitive resolutions of a then ongoing historical struggle in each jurisdiction between sweat of the brow and creativity schools of originality.4 Appreciation and awareness of divergences between Feist (“creativity”) and CCH (“skill and judgment”) need not obscure their convergent rejections of sweat of the brow jurisprudence. In neither jurisdiction is the sweat of an author’s brow in the production of her work any longer sufficient to qualify for copyright protection.5
The sweat of the brow standard provides that labor or industry, even in the absence of creativity, is sufficient to make out a finding of originality. For example, the labor invested in the collection of the information making up a simple, alphabetically arranged phone directory, gives rise to copyright protection. The directory is an “original” work of authorship in the sense that it was not copied from another work. The fact that the production of the directory can be characterized as a merely mechanical or automatic collection of factual material does not preclude the directory’s copyrightability. Mere labor is sufficient to generate copyright. Precisely because collecting facts requires labor, facts are not immune to copyright protection. On the contrary, the protection of factual works is but an instance of copyright protection conceived as protection from the injustice of a person’s misappropriation, through copying, of value produced by another. To refuse copyright in the name of a higher originality standard is to deprive copyright of its efficacy in respect of misappropriation.6
By contrast, the creativity standard, as its name indicates, provides that a finding of originality is impossible in the absence of creativity. An original work must be not only not copied, but also minimally creative. As a merely mechanical or automatic arrangement of preexisting material, a simple phone directory lacks originality. It is public domain material regardless of the labor invested in its production. It can be copied with impunity. The loss or harm that the producer of the directory would sustain were another person to copy it and offer it for sale in the same market would not be an actionable wrong under copyright law. The directory’s value is insufficient to ground its copyrightability. By the same token, a poem’s creativity grounds its copyrightability even in the absence of value. From the standpoint of the creativity standard, the movement away from the sweat of the brow standard is thus a movement from labor to authorship as the defining category. Copyright arises as a right inhering in authorship as distinct from any and all other kinds of labor. To grant copyright on the basis of labor alone, such as the labor involved in fact collection, is to run afoul of basic copyright categories.7
CCH offers skill and judgment rather than creativity as the standard of originality in Canada. Nonetheless, CCH expressly points out that “concerns [raised in Feist] about the ‘sweat of the brow’ doctrine’s improper extension of copyright over facts also resonate in Canada.”8 Thus, whatever their differences (to which we shall return briefly), Feist and CCH share a set of family resemblances in which (a) raw facts or data are not subject to copyright protection, (b) misappropriation of the value of another’s mere labor through unauthorized copying is not the mischief copyright law targets, and (c) public domain considerations (e.g., the free availability of facts) are constitutive of the definition of originality; that is, in both Feist and CCH, the public domain impinges not only on the limitation but also on the very formation of an author’s copyright.
Perhaps the deepest of family resemblances between the two judgments is a conception of the purpose of copyright law as a balance between authors and users—a balance, as it is often put, between the incentive to create and the imperative to disseminate works of authorship. While the author’s right to exclude others from certain uses of her work provides encouragement for creation, the limits that copyright law imposes on protection ensures that recognition of the author’s interest remains consistent with further creativity. The operations of copyright doctrine are thus conceived as mediating a perennial tension between incentive and dissemination, seeking to implement a balance granting each aspect of the copyright whole its proper share. “[C]opyright assures authors the right to their original expression,” says Feist, “but encourages others to build freely upon the ideas and information conveyed by a work.”9 “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,” CCH states, “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.”10 In both Feist and CCH, the concept of balance captures a manifold structure that refuses copyright protection to facts, denies that the misappropriation of value through copying is the mischief that copyright law targets, and affirms the public domain as integral to copyright jurisprudence. In respect of originality in particular, both Feist and CCH dismiss the sweat of the brow standard in the name of the copyright balance.
Because both judgments present themselves as unequivocal dismissals of sweat of the brow jurisprudence, their discontinuity from antecedent Anglo-American and Anglo-Canadian case law is self-evident.11 But while it is correct to emphasize the innovative dimension of either judgment, it would be incorrect to forget that they settled an ongoing struggle between originality schools, and that therefore elements of the side that emerged victorious were themselves present in the shared yet conflicted United Kingdom copyright tradition from which each seeks to differentiate itself. The continuity between Feist and CCH and the copyright tradition should not be underestimated.12 Moreover, just as it is to be expected that elements of the victorious side were already present in the copyright tradition, it is equally to be suspected—contrary to first impressions—that elements of the defeated side, albeit in altered or disguised form, remain operative in Feist and CCH.
I argue in this chapter that the rise in Feist and CCH of an alternative to sweat of the brow jurisprudence is not as unambiguous as it may first appear. More precisely, I argue that the concept of balance is insufficient to ground the doctrinal shift from sweat of the brow to creativity or skill and judgment. Feist and CCH thus display a tension between the doctrinal shift they propose and the vision of the purpose of copyright law in the name of which they propose it. The result is that the affirmation of creativity or skill and judgment as originality standards hovers over a justificatory vacuum. The chapter thus brings into relief the necessity of an alternative interpretation of the purpose of copyright law.
To begin with, following brief overviews of Feist and CCH, I analyze two classic and foundational United Kingdom authorities on originality, University of London Press, Ltd. v. University Tutorial Press, Ltd. and Walter v. Lane.13 My purpose in doing so is twofold. First, I want to find in these two classic authorities traces of the struggle between sweat of the brow and creativity schools, and hence to appraise the presence in each of these authorities of an alternative to the traditional sweat of the brow standard. Second, I expect to learn from that exercise what some of the fundamental presuppositions and implications of the shift from sweat of the brow to creativity or skill and judgment must be. I hope in this way to deepen our understanding of the relationship between Feist and CCH and the copyright tradition they criticize, and to asses, therefore, the significance of Feist and CCH for the development of that tradition in the direction of a clear (or at least less conflicted) movement away from sweat of the brow jurisprudence.
The upshot of the analysis is that sweat of the brow jurisprudence is rooted in a principled and deliberate refusal to distinguish between the generality of labor (i.e., “sweat”) and the specificity of authorship (i.e., “creativity” or “skill and judgment”). Accordingly, it grants copyright protection to compilations of facts because it sees no significant distinction for copyright purposes between the labor of fact compilation and the work of authorship. A phone directory is as worthy of copyright protection as a poem. The refusal to distinguish is principled and deliberate in the sense that it both posits and presupposes a vision of the purpose of copyright law as a remedy for the misappropriation through copying of value created by another. The transition away from sweat of the brow jurisprudence thus requires a distinction between labor and authorship able to elucidate the specificity of the latter.
With that distinction in mind, the chapter now underlines in more detail that Feist and CCH posit the transition away from sweat of the brow to creativity or skill and judgment by reference to the copyright balance. Because it is focused on the production and distribution of value, however, the concept of balance cannot generate, in spite of prima facie appearances, the requisite distinction between sweat and creativity, or labor and authorship. Nothing in the idea of balancing value, or in that of value itself, can account for a consistent practice of refusing copyright to phone directories while granting it to poems. Creativity or skill and judgment are but ways of making distinctions of that kind, of including novels and excluding mousetraps, of distinguishing between copyrightable and uncopyrightable subject matter. Thus the concept of the copyright balance cannot generate creativity or skill and judgment as originality standards because, on the contrary, it presupposes them as the principle that makes the balance intelligible as a copyright-significant balance to begin with. Literally preposterous, the effort to put the cart before the horse cannot help but be counterproductive: the unequivocal doctrinal thrust toward the specificity of authorship in Feist and CCH nonetheless becomes enmeshed and submerged in a value-centered vision of the purpose of copyright law.
Deployed in the name of balance, originality is doctrine devoid of vision; practice devoid of theory. Analysis of the transition from sweat of the brow to skill and judgment reveals the need for an alternative conception of the purpose of copyright law. It reveals, as we shall see in Chapter 2, that copyright is best grasped from the standpoint of speech rather than value.

Feist Publications v. Rural Telephone

In Feist, the US Supreme Court denies copyright protection to an alphabetically arranged phone directory on the grounds of lack of originality. This denial takes place through the Court’s dismissal of the s...