Document Type
Article
Publication Title
Cardozo Arts & Entertainment Law Journal
Publication Date
2009
ISSN
0736-7694
Page Number
375
Keywords
intellectual property, copyright, originality, Feist, creativity
Disciplines
Intellectual Property Law | International Law | Law
Abstract
Originality is a central theme in the efforts to understand human evolution, thinking, innovation, and creativity. Artists strive to be "original," however the term is understood by each of them. It is also one of the major concepts in copyright law. This paper considers the evolution of the notion of originality since 2002 (when one of the coauthors published an article entitled Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law) and continues the analysis, in particular whether the notion of "creative choices," which seems to have substantial normative heft in several jurisdictions, is optimal when measured in more operational terms. The paper considers the four traditional silo-like notions of originality used in national legal systems and looks at the major international treaties for guidance in defining the parameters of an international notion of originality. It analyzes the silos and suggests that they take the form of constellations which cannot be defined or compared hierarchically or indeed as completely separate notions; rather, they overlap in myriad ways.
Recommended Citation
Daniel J. Gervais and Elizabeth F. Judge,
Of Silos and Constellations: Comparing Notions of Originality in Copyright Law, 27 Cardozo Arts & Entertainment Law Journal. 375
(2009)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/842