DOCSLIB.ORG

Rethinking Originality

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Rethinking Originality William & Mary Law Review Volume 34 (1992-1993) Issue 3 Article 8 March 1993 Rethinking Originality Russ VerSteeg Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Intellectual Property Law Commons Repository Citation Russ VerSteeg, Rethinking Originality, 34 Wm. & Mary L. Rev. 801 (1993), https://scholarship.law.wm.edu/wmlr/vol34/iss3/8 Copyright c 1993 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr RETHINKING ORIGINALITY Russ VERSTEEG* I. INTRODUCTION ....................................... 802 II. SUBSTANCE: THE THREE CLASSIFICATIONS ............. 814 A. Compilations................................ 814 B. Derivative Works ............................ 815 C. FreestandingWorks ......................... 816 D. Class Significance ........................... 817 III. TYPE II ORIGINALITY ................................. 818 A. Two Dominant Articulations ................. 818 B. Feist and the "Modicum of Creativity" ........ 818 C. Toward a Legal Definition of "Creativity"...... 824 D. Alfred Bell and Trivial/Distinguishable Variation ................................... 843 1. The Standard and the Problem .......... 843 2. Variations.............................. 846 3. Triviality: Concrete and Abstract ........ 848 E. Case Studies ................................ 856 1. Compilations:West Publishing Co. v. Mead Data Central Inc ........................ 857 2. Derivative Works: L. Batlin & Son v. Snyder ................................ 861 3. Freestanding Works: Toro Co. v. R & R Products Co . ........................... 867 IV. TYPE I ORIGINALITY .................................. 873 * Assistant Professor, New England School of Law. A.B., University of North Carolina at Chapel Hill, 1979; J.D., University of Connecticut School of Law, 1987. I am grateful to Ralph Brown, Jane Ginsburg, Amy B. Cohen, and Brian A. Dahl, who provided me with helpful comments and suggestions on an earlier draft. I would like to thank Dr. Ruth Rich- ards, M.D., Ph.D., for her help in my research of the psychological aspects of creativity. I would also like to thank Barry Stearns and the entire staff of the law library at New Eng- land School of Law as well as my research assistant, Sandra Paul. Finally, I am most grate- ful to John O'Brien, Dean of New England School of Law, and the Board of Trustees for ensuring that I had the time and funding to complete this Article. WILLIAM AND MARY LAW REVIEW [Vol. 34:801 V. A SEMANTIC PROBLEM?: "TYPE II ORIGINALITY" VERSUS "AUTHORSHIP" OR "WORK" .......................... 877 VI. CONCLUSION ..................................... 882 It is a very commonplace truth that before discussing anything, it is well to define the object of the discussion. Without this ele- mentary precaution, the disputants run the risk of talking a great deal without advancing a single step, and of tearing out each others' hair when as a matter of fact they really agree. This is universally known, but seldom taken into account, at least in practical life. In juridical life, definitions were for long periods dispensed with. Even some highly developed and subtle legal works pre- suppose that everybody knows what they are talking about, and give no explanation of the most complex ideas. In other periods, quite the contrary, the definition dominates juridical science. It is discovered in the writings of the legislator and the judge as well as in those of the jurist. Its function is no longer simply to clarify debate. It has become an active factor in the formation of law. It suggests to legal practice solutions which appear incon- testable. It directs the progress of the law . .. I. INTRODUCTION In order to be copyrightable, a work must be "original," and, in fact, the United States Supreme Court has recognized that "[tihe sine qua non of copyright is originality."'2 The Copyright Act of 19763 explicitly requires originality, 4 and the Supreme Court has 1. PIERRE DE TOURTOULON, PHILOSOPHY IN THE DEVELOPMENT OF LAW 327-28 (Martha McC. Read trans., 1922). 2. Feist Publications, Inc. v. Rural Tel. Serv. Co., 111 S. Ct. 1282, 1287 (1991). The Feist Court expressly recognized that "[t]o qualify for copyright protection, a work must be origi- nal to the author." Id. (citing Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985)). The Court forcefully added that "[t]he originality requirement . re- mains the touchstone of copyright protection" and that "[i]t is the very 'premise of copy- right law.' " Id. at 1288 (citations omitted); see 1 PAUL GOLDSTEIN, COPYRIGHT §§ 1.2.2.3, 2.2.1 (1989); MARSHALL A. LEAFFER, UNDERSTANDING COPYRIGHT LAW §§ 2.7-.11 (1989); 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT §§ 2.01, 2.05[D], 2.08[A][3], [B], (C][21, [E], [GI[3], 2.10[A][21, 3.03-.04 (1992) [hereinafter NIMMER]. 3. 17 U.S.C. §§ 101-914 (1988 & Supp. III 1991). 4. The Copyright Act states that "[c]opyright protection subsists ... in originalworks of authorship .... " Id. § 102(a) (emphasis added). 1993] RETHINKING ORIGINALITY held that the Constitution itself established the originality require- ment.5 However, because neither the Copyright Act6 nor the courts7 has defined copyright originality in a clear manner, there remains today a blurred vision of what the term "originality" 5. Feist, 111 S. Ct. at 1288. The Court asserted: Originality is a constitutional requirement. The source of Congress' power to enact copyright laws is Article I, § 8, cl.8, of the Constitution, which autho- rizes Congress to "secur[e] for limited Times to Authors . the exclusive Right to their respective Writings." In two decisions from the late 19th Cen- tury-The Trade-Mark Cases, 100 U.S. 82 (1879); and Burrow-Giles Litho- graphic v. Sarony, 111 U.S. 53 (1884)-this Court defined the crucial terms "authors" and "writings." In so doing, the court made it unmistakably clear that these terms presuppose a degree of originality. Id. (parallel citations omitted). The Court added that Professors Patterson and Joyce had made the point by succinctly stating that" '[t]he originality requirement is constitutionally mandated for all works."' Id. (quoting L. Ray Patterson & Craig Joyce, Monopolizing the Law: The Scope of Copyright Protectionfor Law Reports and Statutory Compilations, 36 UCLA L. REv.719, 763 n.155 (1989)). One commentator has summarized the origins of originality as follows: There has been much theorizing about the legal genealogy of the requirement of originality. The Copyright Clause of the U.S. Constitution has been cited as the earliest ancestor under two theories. [Article I, § 8, cl.8 of the Constitution grants the power to Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."] One theory holds that the phrase "To promote the Progress of Science and useful Arts" requires that a work contain some substantial originality in order to receive copyright protec- tion. The second theory holds that the use of the term "authors" requires a modicum of originality, at least more than the mere copying of public domain materials. Whatever its genealogy, it is beyond question that an "original work of authorship" is required by the 1976 Act. David C. Stimson, Note, Factual Compilations-CopyrightProtection for CompilationDe- pends on Degree of Originality Involved in Assembling Facts-Financial Information, Inc. v. Moody's Investors Service, Inc., 33 J. COPYRIGHT Soc'Y 1, 14-15 (1985) (footnotes omitted). 6. Congress deliberately left the term "originality" undefined in the Copyright Act of 1976 in order to engraft the standard of originality established by judicial decisions under the 1909 Act. H.R. REP. No. 1476, 94th Cong., 2d Sess. 51 (1976); see 1 GOLDSTEIN, supra note 2, §§ 1.2.2.1, 1.2.2.3, 2.2.1, at 65 n.15; LEAFFER, supra note 2, § 2.7[A]; 1 NIMMER, supra note 2, § 2.01; Dale P. Olson, Copyright Originality, 48 Mo. L. REv. 29, 31 (1983). 7. As this Article demonstrates, courts have fashioned numerous definitions and legal tests for originality. However, the inconsistencies and impracticalities of those judge-made definitions render them virtually useless. One commentator has observed that "courts have yet to agree upon a universal test of originality to be applied in all cases." Alan T. Dworkin, Originalityin the Law of Copyright, 39 B.U. L. REv. 526, 526 (1959), reprinted in 11 Copy- RIGHT L. SYMP. (ASCAP) 60, 60 (1962). 804 WILLIAM AND MARY LAW REVIEW [Vol. 34:801 means in copyright law.8 In addition to failing to provide an ade- quate definition of originality, Congress and the courts have failed to offer meaningful standards for determining when a work is origi- nal. This Article aspires to bring that definition into sharper focus and to offer some explanations of useful and pragmatic standards that may be applied in evaluating copyright originality. One underlying theme that this Article advances is that the fun- damental concept of copyright originality ought to be much sim- pler than courts treat it presently. Many have proposed that origi- nality is a relative concept that has different meanings depending upon the nature of the work in question.9 Originality jurisprudence 8.A number of commentators have done a great deal to fill in the statutory and judicial gaps in defining originality. Particularly useful in their analysis and-something to which this Article does not even aspire-their explication of the broad historical evolution of origi- nality in the law of copyright are the following: Ralph S. Brown, Eligibility for Copyright Protection:A Search for PrincipledStandards, 70 MINN. L. REV. 579 (1985); Robert C. Den- icola, Copyright in Collections of Facts:A Theory for the Protection of Nonfiction Literary Works, 81 COLUM. L. REV. 516 (1983); Dworkin, supra note 7; Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 STAN.
Load more

Recommended publications
  • Digital Fanfic in Negotiation: Livejournal, Archive of Our Own, and the Affordances of Read-Write Platforms
    Digital fanfic in negotiation: LiveJournal, Archive of our Own, and the affordances of read-write platforms. Introduction Fanfiction is the unauthorized rewriting or adaptation of popular media narratives, utilizing corporately owned characters, settings and storylines to tell an individual writer’s own story (self-ref, 2017). It is often abbreviated to fanfic or even fic, and exists in a thoroughly grey legal area between copyright infringement and fair use (Tushnet 1997, McCardle 2011). Though there were a few cases of cease-and-desist letters sent to fan writers in the twentieth century, media corporations now understand it is useless to attempt to prosecute fanfic writers – for one thing, there are simply too many of us,1 and for another it would be terrible publicity. Though modern fanfic can be reliably dated to the 1960s (Jenkins 1992), it is now primarily an online practice, and the fastest growing form of writing in the world (self ref). This paper uses participant observation and online ethnography to explore how fanfiction archives utilize digital affordances. Following Murray, I will argue that a robust understanding of digital read-write platforms needs to account for the social and legal context of digital fiction as well as its technological affordances. Whilst the online platform LiveJournal in some ways channels user creativity towards a more self-evidentially ‘digital’ texts than its successor in the Archive of Our Own (A03), the Archive encourages greater reader interactivity at the level of archive and sorting. I will demonstrate that in some ways, the A03 recoups some of the cultural capital and use value of print.
    [Show full text]
  • The Significance of Anime As a Novel Animation Form, Referencing Selected Works by Hayao Miyazaki, Satoshi Kon and Mamoru Oshii
    The significance of anime as a novel animation form, referencing selected works by Hayao Miyazaki, Satoshi Kon and Mamoru Oshii Ywain Tomos submitted for the degree of Doctor of Philosophy Aberystwyth University Department of Theatre, Film and Television Studies, September 2013 DECLARATION This work has not previously been accepted in substance for any degree and is not being concurrently submitted in candidature for any degree. Signed………………………………………………………(candidate) Date …………………………………………………. STATEMENT 1 This dissertation is the result of my own independent work/investigation, except where otherwise stated. Other sources are acknowledged explicit references. A bibliography is appended. Signed………………………………………………………(candidate) Date …………………………………………………. STATEMENT 2 I hereby give consent for my dissertation, if accepted, to be available for photocopying and for inter-library loan, and for the title and summary to be made available to outside organisations. Signed………………………………………………………(candidate) Date …………………………………………………. 2 Acknowledgements I would to take this opportunity to sincerely thank my supervisors, Elin Haf Gruffydd Jones and Dr Dafydd Sills-Jones for all their help and support during this research study. Thanks are also due to my colleagues in the Department of Theatre, Film and Television Studies, Aberystwyth University for their friendship during my time at Aberystwyth. I would also like to thank Prof Josephine Berndt and Dr Sheuo Gan, Kyoto Seiko University, Kyoto for their valuable insights during my visit in 2011. In addition, I would like to express my thanks to the Coleg Cenedlaethol for the scholarship and the opportunity to develop research skills in the Welsh language. Finally I would like to thank my wife Tomoko for her support, patience and tolerance over the last four years – diolch o’r galon Tomoko, ありがとう 智子.
    [Show full text]
  • Woodcuts to Wrapping Paper: Concepts of Originality in Contemporary Prints Alison Buinicky Dickinson College
    Dickinson College Dickinson Scholar Student Scholarship & Creative Works By Year Student Scholarship & Creative Works 1-28-2005 Woodcuts to Wrapping Paper: Concepts of Originality in Contemporary Prints Alison Buinicky Dickinson College Sarah Rachel Burger Dickinson College Blair Hetherington Douglas Dickinson College Michelle Erika Garman Dickinson College Danielle Marie Gower Dickinson College See next page for additional authors Follow this and additional works at: http://scholar.dickinson.edu/student_work Part of the Contemporary Art Commons Recommended Citation Hirsh, Sharon, et al. Woodcuts to Wrapping Paper: Concepts of Originality in Contemporary Prints. Carlisle, Pa.: The rT out Gallery, Dickinson College, 2005. This Exhibition Catalog is brought to you for free and open access by the Student Scholarship & Creative Works at Dickinson Scholar. It has been accepted for inclusion in Student Scholarship & Creative Works By Year by an authorized administrator of Dickinson Scholar. For more information, please contact [email protected]. Authors Alison Buinicky, Sarah Rachel Burger, Blair Hetherington Douglas, Michelle Erika Garman, Danielle Marie Gower, Blair Lesley Harris, Laura Delong Heffelfinger, Saman Mohammad Khan, Ryan McNally, Erin Elizabeth Mounts, Nora Marisa Mueller, Alexandra Thayer, Heather Jean Tilton, Sharon L. Hirsh, and Trout Gallery This exhibition catalog is available at Dickinson Scholar: http://scholar.dickinson.edu/student_work/9 WOODCUTS TO Concepts of Originality in Contemporary Wrapping Paper Prints WOODCUTS TO Concepts of Originality in Contemporary Wrapping Paper Prints January 28 – March 5, 2005 Curated by: Alison Buinicky Sarah Burger Blair H. Douglas Michelle E. Garman Danielle M. Gower Blair L. Harris Laura D. Heffelfinger Saman Khan Ryan McNally Erin E. Mounts Nora M.
    [Show full text]
  • An Overview of Legal Protection for Fictional Characters: Balancing Public and Private Interests Amanda Schreyer
    Cybaris® Volume 6 | Issue 1 Article 3 2015 An Overview of Legal Protection for Fictional Characters: Balancing Public and Private Interests Amanda Schreyer Follow this and additional works at: http://open.mitchellhamline.edu/cybaris Part of the Intellectual Property Law Commons Recommended Citation Schreyer, Amanda (2015) "An Overview of Legal Protection for Fictional Characters: Balancing Public and Private Interests," Cybaris®: Vol. 6: Iss. 1, Article 3. Available at: http://open.mitchellhamline.edu/cybaris/vol6/iss1/3 This Article is brought to you for free and open access by the Law Reviews and Journals at Mitchell Hamline Open Access. It has been accepted for inclusion in Cybaris® by an authorized administrator of Mitchell Hamline Open Access. For more information, please contact [email protected]. © Mitchell Hamline School of Law Schreyer: An Overview of Legal Protection for Fictional Characters: Balanci Published by Mitchell Hamline Open Access, 2015 1 Cybaris®, Vol. 6, Iss. 1 [2015], Art. 3 AN OVERVIEW OF LEGAL PROTECTION FOR FICTIONAL CHARACTERS: BALANCING PUBLIC AND PRIVATE INTERESTS † AMANDA SCHREYER I. Fictional Characters and the Law .............................................. 52! II. Legal Basis for Protecting Characters ...................................... 53! III. Copyright Protection of Characters ........................................ 57! A. Literary Characters Versus Visual Characters ............... 60! B. Component Parts of Characters Can Be Separately Copyrightable ................................................................
    [Show full text]
  • PARATEXTUALITY and the LOST URTEXT Anthony Enns the Term
    ANTHONY ENNS PARATEXTUALITY AND THE LOST URTEXT Anthony Enns The term “paratext” refers to the elements of a literary work that ac- company the text but are not considered part of the text itself, such as title pages, introductions, annotations, appendices, etc. Gérard Genette famously described the paratext as the “threshold…between the inside and the outside” of a text, and this threshold represents “a privileged place of a pragmatics and a strategy, of an influence on the public, an influence that…is at the service of a better reception for the text and a more pertinent reading of it” (2). In other words, the contextual information and critical commentary provided in the paratext ultimately serves the author’s own interests by ensuring that the text is interpreted correctly: “The way to get a proper reading is…to put the (definitely assumed) reader in possession of information the author considers necessary for this proper reading…[such as information] about the way the author wishes to be read” (209). Genette also noted that paratextual elements have expanded over time in order to satisfy “the educated public’s growing curiosity about the ‘making’ of the text and about the unearthing of versions the author had abandoned” (339). Paratexts were thus increasingly seen as necessary “supplements” or “acces- sories” to a literary work, and a text without a paratext is now viewed as “a power disabled…like an elephant without a mahout” (410). If a text without a paratext is “an elephant without a mahout,” then a “paratext without its text is a mahout without an elephant,” which Gen- ette dismissed as “a silly show” (410).
    [Show full text]
  • 2. Case Study: Anime Music Videos
    2. CASE STUDY: ANIME MUSIC VIDEOS Dana Milstein When on 1 August 1981 at 12:01 a.m. the Buggles’ ‘Video Killed the Radio Star’ aired as MTV’s first music video, its lyrics parodied the very media pre- senting it: ‘We can’t rewind, we’ve gone too far, . put the blame on VTR.’ Influenced by J. G. Ballard’s 1960 short story ‘The Sound Sweep’, Trevor Horn’s song voiced anxiety over the dystopian, artificial world developing as a result of modern technology. Ballard’s story described a world in which natu- rally audible sound, particularly song, is considered to be noise pollution; a sound sweep removes this acoustic noise on a daily basis while radios broad- cast a silent, rescored version of music using a richer, ultrasonic orchestra that subconsciously produces positive feelings in its listeners. Ballard was particu- larly criticising technology’s attempt to manipulate the human voice, by con- tending that the voice as a natural musical instrument can only be generated by ‘non-mechanical means which the neruophonic engineer could never hope, or bother, to duplicate’ (Ballard 2006: 150). Similarly, Horn professed anxiety over a world in which VTRs (video tape recorders) replace real-time radio music with simulacra of those performances. VTRs allowed networks to replay shows, to cater to different time zones, and to rerecord over material. Indeed, the first VTR broadcast occurred on 25 October 1956, when a recording of guest singer Dorothy Collins made the previous night was broadcast ‘live’ on the Jonathan Winters Show. The business of keeping audiences hooked 24 hours a day, 7 days a week, promoted the concept of quantity over quality: yes- terday’s information was irrelevant and could be permanently erased after serving its money-making purpose.
    [Show full text]
  • Copyright OUTLINE
    COPYRIGHT – PROF. REESE, SPRING 2009 • INTRODUCTION o Characteristics . Public goods, nonexcludability and nonrivalrousness . Intangible gooDs o Concerns . Financial benefit (incentives to create) . Attribution . Accuracy . Control . Privacy o ProbleMs . Creates Monopoly . Less access/higher costs • SUBJECT MATTER o Constitutional . Federal, not patchwork of state protections . Restrictions on Congress • Limited time for exclusive rights • Who can get protection • Purpose (science/useful arts) • Subject Matter: writings of authors . Note: just because Constitution perMits Congress to grant copyright protection, it Does not Mean that Congress HAS to o Subject Matter BroaDly DefineD . Author = originator of work . Writing = physical forM expressing iDeas of the MinD . ProMote Progress includes works for coMMercial purpose . Originality: intellectual proDuction, though, or Mental conception, not a qualitative juDgMent of artistic value o Courts on subject Matter: ORIGINALITY . Burrow-Giles Lithographic Co. v. Sarony (1884): Oscar WilDe photo • ∂’s challenge: photos are not “authorship” • HolDing: photographs are writings—represent “original intellectual conceptions of the author” o Early Congress protecteD Maps/charts, recreations of the real worlD o Define writings: “all forms by which the ideas in the mind of the author are given visible expression” o Reject categorical exclusion of photos: originality thresholD Met . Goldstein v. California (1973): doesn’t have to be visible • Writings incluDes physical expression of sounDs, any physical rendering . Bleistein v. Donaldson Lithographic (1903): circus aDvertiseMents • ∂’s challenge, drawn from life to advertise • HolDing: low threshold of originality o Shows author’s personality, even in unpretentious pictures o ComMercial purpose does not reMove from “useful arts”—value because of consuMer DeManD for copies o Ends lower court trenD aligning copyright with fine arts o Court does not judge artistic quality o Statutory Subject Matter: §102 .
    [Show full text]
  • The Adventure of the Shrinking Public Domain
    ROSENBLATT_FINAL (DO NOT DELETE) 2/12/2015 1:10 PM THE ADVENTURE OF THE SHRINKING PUBLIC DOMAIN ELIZABETH L. ROSENBLATT* Several scholars have explored the boundaries of intellectual property protection for literary characters. Using as a case study the history of intellectual property treatment of Arthur Conan Doyle’s fictional character Sherlock Holmes, this Article builds on that scholarship, with special attention to characters that appear in multiple works over time, and to the influences of formal and informal law on the entry of literary characters into the public domain. While copyright protects works of authorship only for a limited time, copyright holders have sought to slow the entry of characters into the public domain, relying on trademark law, risk aversion, uncertainty aversion, legal ambiguity, and other formal and informal mechanisms to control the use of such characters long after copyright protection has arguably expired. This raises questions regarding the true boundaries of the public domain and the effects of non-copyright influences in restricting cultural expression. This Article addresses these questions and suggests an examination and reinterpretation of current copyright and trademark doctrine to protect the public domain from formal and informal encroachment. * Associate Professor and Director, Center for Intellectual Property Law, Whittier Law School. The author is Legal Chair of the Organization for Transformative Works, a lifelong Sherlock Holmes enthusiast, and a pro bono consultant on behalf of Leslie Klinger in litigation discussed in this Article. I would like to thank Leslie Klinger, Jonathan Kirsch, Hayley Hughes, Hon. Andrew Peck, and Albert and Julia Rosenblatt for their contributions to the historical research contained in this Article.
    [Show full text]
  • EU Harmonisation of the Copyright Originality Criterion (Pdf)
    NEWS June 2012 EU harmonisation of the copyright originality criterion As a consequence of a number of copyright rulings from the CJEU, the Swedish threshold of originality requirement is being superseded by an EU originality criterion. In this article, Henrik Bengtsson, IP expert at Delphi in Stockholm, reports on the development and the possible impact on the harmonisation of Swedish copyright law. Less than two years ago, the Swedish Supreme Court rendered its judgment in the Mini Maglite case (NJA 2009 s 159) and ruled that the Mini Maglite flashlight was copyright protected. The Mini Maglite case concerned the pre-requisites under which a work of applied art meets the threshold of originality. The Supreme Court’s view on the threshold of originality concept vis-à-vis “the author’s own intellectual creation” One of the legal issues in the Mini Maglite case was whether the judgment should be based on a Swedish originality requirement or on the EU originality criterion enshrined in the EU copyright directives. The Supreme Court found that the EU harmonisation of copyright law was limited to computer programs, photography and database directives, and was not applicable to industrial designs; “Under two EC directives, computer programs and photographs could be covered by copyright protection, inter alia, on the condition that the work is original in the sense that it is the author’s own intellectual creation; it is added that no other tests shall be applied as regards the right to protection (Directive 91/250/EEC and Directive 93/98/ EEC). A directive regarding legal protection for databases has been drafted in a similar way in this respect (96/9/EC).
    [Show full text]
  • 1 Quality, Merit, Aesthetics and Purpose: an Inquiry Into EU
    This is a preprint of an article published in the RIDA - Revue Internationale du Droit d’Auteur, no. 236 (April 2013), pp. 100-295, with a full-text translation in French by Margaret PLATT-HOMMEL and in Spanish by Antonio MUÑOZ. Quality, merit, aesthetics and purpose: An inquiry into EU copyright law’s eschewal of other criteria than originality Stef van Gompel & Erlend Lavik* One of the most debated topics in European copyright law today is the harmonization of the concept of originality and the subject-matter of copyright by the Court of Justice of the EU (CJEU). Up until the Infopaq I decision of 2009, in which it ruled that copyright subsists in subject-matter ‘which is original in the sense that it is its author’s own intellectual creation’,1 computer programs, photographs and databases were the only three types of works for which the originality test was explicitly harmonized at the EU level.2 Beyond these cases, it was thought that ‘Member States remain free to determine what level of originality a work must possess for granting it copyright protection’.3 The CJEU nonetheless extended the application of the criterion of the author’s own intellectual creation to other types of works, including newspaper articles (Infopaq I); graphic user interfaces of computer programs (BSA); (unregistered) industrial design (Flos); works exploited within the framework of television broadcasts, such as opening video sequences, anthems, pre-recorded films and graphics (Football Association Premier League); and programming languages and the format of data * Stef van Gompel is post-doc researcher at the Institute for Information Law (IViR) of the University of Amsterdam; Erlend Lavik is post-doc researcher at the Department of Information Science and Media Studies (Infomedia) of the University of Bergen.
    [Show full text]
  • Canadian Law Library Review Revue Canadienne Des Bibliothèques De Droit
    Volume/Tome 38 (2013) No. 2 ISSN 1180-176X CANADIAN LAW LIBRARY REVIEW REVUE CANADIENNE DES BIBLIOTHÈQUES DE DROIT Canadian Law Library Review Revue canadienne des bibilothèques de droit is published by est publié par CANADIAN ASSOCIATION OF LAW LIBRARIES ASSOCIATION CANADIENNE DES BIBLIOTHÈQUES DE DROIT CONTENTS SOMMAIRE EDITORIAL BOARD/COMITÉ DE RÉDACTION 2013 2013 EDITOR/RÉDACTRICE EN CHEF NANCY MCCORMACK Canadian Law Library Review Revue canadienne des bibliothèques de droit Librarian & Associate Professor of Law Volume 38, No. 2 Tome 38 No. 2 Lederman Law Library Queen’s University FROM THE EDITOR DE LA RÉDACTRICE 59 Kingston, ON K7L 3N6 Telephone: (613) 533-2465 PRESIDENT’S LETTER LE MOT DE LA PRÉSIDENTE 63 E-mail: [email protected] ORAL INTERVIEWS WITH ENTREVUES AVEC LES 68 ASSOCIATE EDITOR/RÉDACTRICE ADJOINTE PAST PRESIDENTS OF CALL ANCIENS PRÉSIDENTS DE L’ACBD WENDY HEARDER-MoAN Viola Bird 68 WHM Library Services 3039 Britannia Rd. W. By Heather Wylie Burlington, ON L7M 0R7 Reports RAPPORTS 70 Telephone: (905) 335-4055 E-mail: [email protected] Law Via the Internet 2012: Report on the Conference 70 By Yemisi Dina FEATURES/ARTICLES DE FOND AMY KAUFMAN FEATURE ARTICLES ARTICLES DE FOND 74 Head, Law Library Lederman Law Library Edited by Amy Kaufman and Leslie Taylor Queen’s University The Canadian Association of Law Libraries/Association Canadienne Des Bibliothèques De Droit: Kingston, ON K7L 3N6 Telephone: (613) 533-2843 A Continuing History, 1988-2012. Part I: Governance, Structure, and Administration 74 E-mail: [email protected] By Janet M. Moss LESLIE TaylOR R EVIEWS RECENSIONS 89 Reference/Technical Services Librarian Lederman Law Library Edited by Erica Anderson and Susan Barker Queen’s University Administrative Law in Canada.
    [Show full text]
  • Mimesis, Eros, and Mania on Platonic Originals
    1 Mimesis, Eros, and Mania On Platonic Originals PHILOSOPHICAL IMAGINATION AND THE MIDDLE Vico’s inspiring work reminds us of the importance of what he called the imaginative universal. An imaginative universal, of course, would strike many rationalistic philosophers as very odd. It will not so strike the person with even minimum exposure to the revelatory power of art. Vico not only gives our imagination wings, as Joyce said; he also had more wings than not a few philosophers. Think, for instance, of his opposite in spirit, Descartes. Or per- haps Hegel, whose version of speculative reason, one fears, betrays this inti- mate strangeness of being. One might say: a properly winged philosophical imagination knows this intimacy and this strangeness.1 Can the name “Plato” stand for that philosophical imagination? This too will seem odd, since Plato is taken as the implacable foe of the poets. But who has endowed the philo- sophical tradition more richly with its philosophical images, such as the Cave, the Sun, the winged soul, and so on? Do not these images present some of the imaginative universals of philosophy itself, to which thinkers return again and again, and not because they are deficient in speculative reason but 1. The admirable work of Donald Verene helped open my eyes to the importance of the imaginative universal in Vico. Verene has also awakened us to the philosophical importance of images in Hegel, and especially his Phenomenology, in Hegel’s Recollection: A Study of Images in the Phenomenology of Spirit (Albany: State University of New York Press, 1985).
    [Show full text]