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The Sine Qua Non of Copyright is Uniqueness, not Originality
| Content Provider | Semantic Scholar |
|---|---|
| Author | Vermont, Samson |
| Copyright Year | 2012 |
| Abstract | The Supreme Court tells us that originality is the sine qua non of copyright. I argue that uniqueness is the sine qua non. Copyright only protects unique work, a one-of-a-kind – a work that no one created before (novel) and that no one could independently create after (unrepeatable).The Court also tells us originality has two components: independent creation by the author (as opposed to copying) and a modicum of creativity. I argue these components are merely rough heuristics for uniqueness. Independent creation by the author is over-inclusive. Creativity is both over- and under-inclusive. The over- and under-inclusiveness do not offset each other, so gaps remain. Courts plug most of the gaps with the limiting doctrines and the substantial similarity standard. To put it imprecisely: (independent creation) (creativity) (limiting doctrines) (substantial similarity) ≈ uniqueness. Through this patchwork courts eventually reach the right outcome in most cases – but not without making a hash of copyright doctrine. We can straighten out doctrine by focusing directly on uniqueness. Uniqueness explains why copyright protects a careless snapshot of drunken revelry more than a database of important scientific data, and a cartoon character more than a literary character. Uniqueness also defines the boundary between copyright and utility patent, and illuminates the apparently persistent but varied influence of the sweat of the brow doctrine. Finally, uniqueness largely unifies copyright’s many limiting doctrines, including the useful article doctrine, idea-expression dichotomy, fact-expression dichotomy, merger doctrine, and others. Some of the limiting doctrine cases, however, cannot be explained without supplementing uniqueness with a “dominance principle,” which is akin to antitrust and which limits protection for a unique work if it is dominant. Examples of unique works that are dominant include the QWERTY keyboard layout, the Lotus 1-2-3 spreadsheet menu, highly fanciful names, sets of arbitrary part numbers that serve the same designating function as names, and plaintiff’s phonebook listings in Feist. |
| File Format | PDF HTM / HTML |
| DOI | 10.2139/ssrn.1906047 |
| Alternate Webpage(s) | https://works.bepress.com/samson_vermont/1/download/ |
| Alternate Webpage(s) | https://law.depaul.edu/about/centers-and-institutes/center-for-intellectual-property-law-and-information-technology/programs/Documents/ipsc_2011/abstracts/VermontS_Abstract.pdf |
| Alternate Webpage(s) | https://doi.org/10.2139/ssrn.1906047 |
| Language | English |
| Access Restriction | Open |
| Content Type | Text |
| Resource Type | Article |
