I apologize if this is hopelessly I-just-read-CCH of me. No doubt it’s all been said before, but when has that stopped me?
Copyright only protects “original works”. But original work, it turns out, is a tricky concept to define. On the one hand, you might say that original simply means “not copied”. This would give rights to anybody who puts effort into creating something. On the other hand, you could require a little bit of novelty or creativity. In CCH, the Supreme Court of Canada set out a (possibly) different originality standard that required more than mere effort, but not actual creativity. This standard requires that a work be the product of “skill and judgement”. A lot has been said about that judgement, but I think that I have discovered the truth behind it: people don’t like phonebooks.
Whenever a person talks about the difference between the sweat-of-the-brow (effort/UK) standard and the creativity (US) standard, they always boil it down to that one thing—the UK standard protects phonebooks. And when originality is discussed in class, students always include the disclaimer “of course, I don’t believe phonebooks should be copyrightable”. Why all this hostility? There must have been a wave of heavy-phonebook-fell-on-my-toe incidents in the pasts of most lawyers. Their first tort.
Seriously, though, why is it that people are so sure that phonebooks shouldn’t be copyrightable? They provide valuable information. They might even take quite a bit of effort to put together. Should someone be able to just photocopy the thing and sell it? OK, I admit that phonebooks are free, but imagine another completely non-creative collection of facts that someone would be willing to pay for. There’s no incentive to create such a thing if you have no rights at all and that is what all this talk of originality seems to say. I’m just not sure it makes sense to deny copyright at the point of originality—except on the broadest definition of the term. There must be some way that the phonebook author can have the bare minimum protection. This would prevent him from being so directly undercut and ensure that any copier would produce a slightly different phonebook. In this scenario, the public would even have two different versions to choose from. Everybody wins.
I’m still working this out in my mind, but I think there are other concepts in copyright that can do the work that originality does in North America.