Journal of Intellectual Property Law & Practice Advance Access published online on June 11, 2009
Journal of Intellectual Property Law & Practice, doi:10.1093/jiplp/jpp091
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© The Author (2009). Published by Oxford University Press. All rights reserved.
May authorship go objective?
Legal context: This paper shows how, in spite of the subjective logic underlying the protection granted by copyright and droit d'auteur, in practice the analysis of originality often relies on objective reasoning, as resolution of cases is often decided by evaluating the differences between the work in question and previous works.
Key points: After describing the origin and evolution of objective reasoning, the paper examines why that reasoning seems intuitively attractive and shows how it works in actual cases, as well as why it fails. In a nutshell, it fails because it disregards the possibility of independent creation.
Practical significance: The paper offers an alternative interpretation of the attractive intuitions underlying the objective approach to originality that is nevertheless consistent with a subjective logic. According to this interpretation, the claim that what is original is that which differs from previous should be read not as a valid proposition, but as an assessment of odds: the more different two works are, the more likely it is that the second is original, for it is less likely that it has been created independently. It also explains why, as a rule of thumb, originality should not be sought in differences in generalities or abstract aspects of works (ideas), but in differences in expression—and why the more general the similarities are, the less likely is the finding of infringement. Focusing in details may contribute to determine whether the similarities at stake are casual and allow a finding of independent creation.
Correspondence: * Torcuato Di Tella University, Buenos Aires, Argentina. Email: aguswaisman{at}hotmail.com. The author acknowledges Martin Hevia and Alain Strowel.