Originality: Odysseus: chapter summary

The chapter returns to the starting point of the analysis, to originality, but with a deeper understanding of the constituents of originality and giving fuller attention to originality itself. The requirement for originality is substantiated as constitutional, articulated in judicial interpretations of the Constitution, and embodied in statute. The meaning of originality is confirmed as that a work must have at least some minimal degree of creativity and be independently created.

A minimal degree of creativity and independent creation are both required, as a matter of definition, for originality. Independent creation is parenthetically explicated at its introduction, as ‘opposed to copied from other works’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345). The copying opposed to independent creation could be understood as a significant, if not archetypal, potentially automatically computational activity. Creativity in a minimal degree of creativity is also opposed to automatic computational activities. However, it is also opposed to computational processes other than copying and a minimal degree of creativity also excludes highly routine activities. Independent creation and a minimal degree of creativity are, then, similar as antithetical to computational processes, but differ in the extent of their antithesis to other computational activities and in the exclusion of highly routine, but not necessarily automatically computational, processes from a minimal degree of creativity. A minimal degree of creativity is then the more inclusive concept. The relation of a minimal degree of creativity to independent creation has then been substantiated and closened.

We can return to our initial logical representation of the meaning of originality.

Original <-> ((at least some minimal degree of creativity) ^A (independently created))

And rewrite it as

((at least some minimal degree of creativity) a (independently created)) <-» Original

The statement is logically equivalent, but we now have a deeper, and sufficient, understanding of a minimal degree of creativity and independent creation, and of their conjunction as constituents of originality. The reversal of order of terms reflects the current direction of understanding.

We can establish a progressive order of discrimination. First, for a minimal degree of creativity.

• • Are there elements of the work not produced by an automatic mechanical procedure?
• • Do those elements embody creativity at the required intellectual level?

• Do the elements at the required level embody a sufficient amount of creativity (as revealed by the exchange values associated with the product)?

If a minimal degree of creativity exists, independent creation can be determined.

• Who originated the elements of the work with a minimal degree of creativity?

Each discriminatory step takes the outcome of the previous discriminations as its exclusive object.

The term labor in ‘fruit of the compiler’s labor’ (p. 349) subsumes all the antecedent activities, of industrious collection and the selection, coordination, and arrangement of data which went into the making of that fruit or product, for both original and not original products. They are also characterized as labor and can be empirically understood to correspond to labor. A progressive differentiation emerges, for both industrious collection and the selection, coordination, and arrangement of data, from the physical and the mechanical, through the highly routine, which cannot not give rise to copyright, to intellectual labor, which is protected by copyright. They can then be considered to be fully labor. Industrious collection, excluded from copyright, and selection, coordination, and arrangement without creativity, excluding creativity but also antithetical to it, can then be seen to be deeply connected with each other.

Creativity and labor can be understood as broadly parallel.

The recognition of creative activities as labor, and the protection accorded to intellectual labor, dissolves the tension between the requirement for originality and the preexisting understanding that copyright protected and rewarded the intellectual labor of authors. The incentive role of copyright for intellectual labor is restored and copyright brought into broad consonance with natural justice.

We can then return to our initial proposition, that copyright requires originality or

i copyright <-> originality

but with a fuller understanding of the requirement as constitutional, as embodied in statute, and consistent with the pre-existing understanding of copyright, and with a frill and sufficient understanding of originality and its constituents.

Finally, then, we have obtained a full understanding of' originality, as the head concept, completed our journey, in this sense, returning to the locale from which we departed. The clarity, definiteness, and testability of the understanding of originality have the potential to bring to an end the otherwise potentially continuing proposals for suigeneris legislation (Trosow, 2004-2005, p. 109). Such proposals have not insignificant deliberation costs. The discriminatory power of the understanding obtained and the possibility of ending unproductive debates give great value to the reading. Copyright can be regarded as restored to its historical basis, while incorporating modern practice.

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