“Original Facts: Skill, Judgment and the Public Domain”, (2006) 51 McGill L.J. 253-278
It has long been said that facts cannot be protected by copyright. However, copyright jurisprudence has been less than clear about what constitutes a fact, and about the reasons why facts cannot be copyrighted. Although the Supreme Court of Canada, in its recent decision in CCH Canadian Ltd. v. Law Society of Upper Canada, restated the principle that facts cannot be copyrighted, the court also set a standard for originality that can easily be interpreted so as to offer copyright protection to facts. In this paper the author explores the concept of “facts”, and the way in which Canada’s standard for originality might be used to extend copyright to facts. She examines the policy reasons why facts should not be copyrightable, and argues for an interpretive approach that leaves facts in the public domain.
