[d@DCC] Originality, substantive taking, and ultra copyright

[Jason Young]

I apologize for the tardiness of my reply which is in response to 
http://www.digital-copyright.ca/discuss/1873

At 10:42 -0400 03.05.13, Russell McOrmond wrote:
>This is one of those areas that I believe indicates the level of
>confusion in copyright law.  How much originality is needed before a new
>copyright restriction is offered isn't something that is obvious without
>diving into caselaw.

In my opinion, the determination of "originality" is not even clear 
in the jurisprudence. Courts decide the issue on a fact basis and I 
don't think the it has been altogether consistent, as I think you'll 
partially glean from the Tele-Direct and Edutile cases below. Of 
course, the other challenge is in trying to rely on the common law 
when the statute keeps changing, as happened in 1988 and 1993.

>If I take a photograph that has artwork in the background, is there
>copyright on that photograph separate from the copyright of the artwork?

If your photograph meets the originality test, then yes. However, if 
your photograph was a substantive reproduction of the the first 
photograph, as determined by a qualitative and quantitative 
assessment of the protected work, then it may not be original at all 
and therefore not deserving of its own copyright. This was apparently 
the finding in Editions Hurtubise H M H Ltee v. Cegep 
Andre-Laurendeau, [1989] R.J.Q. 1003 (Que. S.C.) which dealt with a 
"literary work". I'm not clear on whether it would also apply to a 
photograph.

>What if the picture is in the foreground?  What if the camera is digital
>and the purpose of taking the picture was to display that artwork in a
>different media?

The only difference between foreground and background would be in the 
determination of "substantive".

Take a look at the result in Theberge, which I know some on this list 
have recently read, see Galerie d'Art du Petit-Champlain v. Theberge, 
(2002) SCC 34, online LexUM 
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/laroche.en.html

You will recall that the majority found that the gallery had not 
infringed the reproduction right by transferring the authorized image 
to another medium, but only because the transfer had destroyed the 
original and the totality of reproductions had not increased. If the 
totality had increased, presumably the court would then have run the 
substantive test (as the minority did).

In U & R Tax Services Ltd. v. H & R Block Canada Inc. (1995), 62 
C.P.R. (3d) 257 (Fed. T.D.) (I can't find it online, but if someone 
wants to read it, send me a note), the court listed a number of 
factors to use in assessing a substantive taking:

a) the quality and quantity of materials taken;
b) the extent to which the def'd's use adversely affects the pl's 
activities and diminishes the value of the pl's copyright;
c) whether the material taken is the proper subject-matter of copyright;
d) whether the def'd intentionally appropriated the pl's work to save 
time and effort;
e) whether the material taken is used in the same or similar fashion...

>I believe the next step in this discussion-of-confusion is to ask about
>the whole concept of a copyright on databases.  Facts cannot be copyright,
>but if you get many of them into a database, it is claimed that you can
>copyright the database.  What type of monopoly does that offer?  What if
>someone claims that a fact only existed in a certain database: is there
>now going to be a claim that they have exclusivity on that fact?

In the copyright sense, a database is a compilation of things which 
may or may not attract protection individually, see Slumber-Magic 
Adjustable Bed Co. Ltd. v. Sleep-King Adjustable Bed Co. (1984), 3 
C.P.R. (3d) 81 (B.C.S.C.). A compilation can also be a collective 
work, but I won't get into that.

A database could contain, for example, copyright articles or it could 
contain names and phone numbers, which are not protected in 
copyright. In either case, the question as to whether copyright 
exists in the database is, in most cases, separate from the question 
as to whether copyright exists in the individual things found in the 
database. The exception would be in instances where a part of a 
compilation was an expression of the author, e.g. the preface to a 
collection of articles.

In the case of information found in a phone directory, the Federal 
Court of Appeal in Tele-Direct v. American Business followed the 
approach of the U.S. Supreme Court in Feist Publications v. Rural 
Telephone Service in finding that these things do not attract 
copyright protection because they are "obvious and commonplace"and 
"so mechanical as to be devoid of a creative element." Tele-Direct 
(Publications) Inc. v. American Business Information Inc. (1997), 76 
C.P.R. (3d) 296 at 309 (Fed. C.A.) 
http://www.canlii.org/ca/cas/fca/1997/1997fca10165.html But see 
Edutile v. Automobile Protection Ass'n, (2000), 188 D.L.R. (4th) 132 
(Fed. C.A.) (again, I can't seem to find this online), the court 
found that a list of prices presented in a column met the test for 
originality. Tamaro speculates in his book that a key difference 
between these two cases might be that the definition of "literary 
work" was narrowed in the time the two decisions came down.

In any event, a "fact" - which is not deserving of copyright -  would 
not then attract it by virtue of inclusion in a protected database.
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