Independent creation and a minimal degree of creativity

Independent creation is parenthetically explicated at its introduction - ‘independently created by the author (as opposed to copied from other works)’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345). The initial explication of independent creation is subsequently extended to apply specifically to the selection and arrangement involved in compilations: ‘Originality requires only thatthe author make the selection or arrangement independently (i.e., without copying that selection or arrangement from another work)’ (p. 346). The understanding of independent creation as not copied is thereby confirmed as applicable to compilations but is not itself modified.

The relation of independent creation to a minimal degree of creativity is given as part of the meaning of original.

[OJriginal ... means only that the work was independently created by the author ... and that it possesses at least some minimal degree of creativity.

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345) [emphasis added]

The ‘and’ (p. 345) can be read in its ordinary discourse sense of conjoining the two terms it connects. The relation of independent creation to a minimal degree of creativity is subsequently formulated as ‘plus’ (p. 346), which can be read as corresponding in meaning to the initial ‘and’ (p. 345). The relation is also reiterated as ‘and’ (pp. 348, 358) and these references can be understood as equivalent in meaning to the initial ‘and’ (p. 345). The necessity for both independent creation and a minimal degree of creativity for originality, then, is signaled by the and which connects them at their first introduction (p. 345), at subsequent iterations (pp. 348, 358), and by the alternative verbal form, ‘plus’ (p. 346). The relation of independent creation to a minimal degree of creativity can then be understood as conjunction.

Conjunction implies some further relation between the conjoined terms. Independent creation and a minimal degree of creativity cannot be in necessary and full contradiction, as otherwise no work could be original. The absence of necessary contradiction could extend to a substantive similarity. There should also be some distinction between the conjoined terms, from the perspective of both ordinary discourse and formal logic - ‘Roughly speaking: to say of two things that they are identical is nonsense’ (Wittgenstein, 1922/1981, §5.5303) - otherwise their separate specification would be redundant. Absence of contradiction, possibly extending to similarity, and difference must then both exist.

Some specific similarities and contrasts between independent creation and a minimal degree of creativity can be discerned within the judgment. Independent creation and a minimal degree of creativity also have an underlying similarity in terminology, between the root or stem mat in ‘independently mated’ (p. 345) and in ‘a minimal degree of emtrivity’ (p. 345) [emphases added], revealing a connection in etymology and possibly implying some semantic commonality. Analogously, to the implication of creativity in a minimal degree of creativity from its own antithesis, from the ‘creative spark utterly lacking’ (p. 358), independent creation is negatively delimited - ‘as opposed to copied’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345). In contrast to a minimal degree of creativity, independent creation is fully explicated in parentheses at its introduction and is less extensively treated, implying that it is more easily delimited and less complex than a minimal degree of creativity. Some semantic commonality with a

Originality 135 minimal degree of creativity and the lesser complexity of independent creation and is then implied, although neither implication is frilly developed.

A particular similarity and difference and can be identified. In relation to the possible semantic commonality, the extreme antithesis to creativity has been identified with an automatic mechanical procedure or computational or syntactic process. Copying, negatively opposed to independent creation, would be one highly significant, if not archetypal, instance of a mechanical or syntactic process. Independent creation and a minimal degree of creativity then both exclude a syntactic process. Independent creation could have a semantic character, corresponding to the semantic character of creativity. The implied commonality of connection with creation has been made fully explicit. A difference also emerges. The exclusion of only one form of syntactic activity, of copying, from independent creation would also allow it to include other syntactic processes. It could also include semantic processes below the level required for a minimal degree of creativity. A significant difference has also been revealed. A minimal degree of creativity remains the broader concept, with creativity counterposed to other syntactic activities, as well as to copying, sustaining the less complex character of independent creation. We have therefore revealed a substantive connection and identified a specific difference.

Independent creation as not copied is the negation of copying, or of a routine and automatic mechanical activity. As such it is consistent with and also complementary to a minimal degree of creativity, as the companion constituent of originality. We have therefore deepened the connection between the two components of originality.

On the basis of a foil understanding of the requirement for and the meaning of originality, and the relation between independent creation and a minimal degree of creativity within originality, we can move to a consideration of the relation of the requirement for originality to pre-existing understandings of copyright.