Resisting "Sweat" and Refusing Feist: Rethinking Originality After CCH

In CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada ostensibly settled the debate between the "sweat school" and the "creativity school" regarding the meaning of copyright's originality requirement. While rejecting a labour-based formulation of the originality standard, the Supreme Court also refused to adopt the "minimal degree of creativity" test established by the U.S. Supreme Court in the famous Feist case. The appropriate threshold for originality, according to the Supreme Court of Canada, "falls between these two extremes" and requires "an exercise of skill and judgment." This paper explores the significance of the "skill and judgment" test by contrasting it with previous articulations of the standard in Canadian jurisprudence, and against the current approach to originality in the United Kingdom and the United States. In particular, it examines the theoretical, political, and pragmatic considerations that may explain the Court's reluctance to explicitly include either "labour" or "creativity" among the relevant ingredients of original authorship. It suggests that the absence of these concepts is the key to understanding the nature and role of Canada's new originality standard in copyright policy: When assessing copyrightability, Canadian courts should put aside both labour- and personality-based theories of entitlement. In this way, the CCH decision has the potential to clear the path for an instrumental application of the originality doctrine that furthers the public policy goals of the copyright system.