Artificial intelligence systems often “give the vibe” of complete automated processing without human involvement. However, as reminds us, upon a closer “vibe check” there are layers of unseen and under-appreciated human inputs, efforts, and labour involved. The efforts of those unseen human hands are, in fact, the engine of AI innovation.

Dr. Dagne is the Ontario Research Chair in Governing Artificial Intelligence and an Associate Professor at 91��ɫ’s new Markham campus in the School of Public Policy & Administration. He also teaches Property Law at Osgoode Hall Law School, where he is an Affiliated Researcher with IP Osgoode. His current project, which he recently presented at the at the University of Cape Town, highlights how copyright enables the proactive exploitation of digital workers’ contributions as inputs to AI training or, in some cases, AI-assisted outputs.

By bringing to the fore the roles of digital workers, Dagne hopes to unearth the collaborative creation that goes into the AI production chain and feeds into the AI output. His paper, “Unseen Hands, Invisible Rights: Unmasking Digital Workers in the Shadows of AI Innovation and Implications for the Future of Copyright Law”, is soon to be published in a forthcoming volume on IP’s Futures: Exploring the Global Landscape of Intellectual Property Law and Policy (Ottawa UP, 2025), which Dagne is co-editing with and . His chapter probes the future of copyright law, attempting to turn the focus of copyright to collaborative authorship. This move, Dagne argues, could respond to demands for the fair allocation of rights between digital workers, as authors or joint authors in some cases, and AI designers as exploiters of digital works. 

Digital Workers are the Lifeblood of AI Development

As , “[AI] doesn’t run on magic pixie dust… [AI training] is a job that actually takes quite a bit of creativity, insight, and judgment.” Such ingenuity involves the preparation of data works for the datasets used to train and build AI technologies, which consists of a number of decisions as to the kind of data to collect, curate, clean, label, abstract, index, etc. The process of dataset development starts with formulating the problem, which is the conceptualization of the machine learning task by making the problems “into questions that data science can answer”. The task conceptualization is typically the responsibility of the AI designer, which may be an AI company like Open AI or Anthropic AI, for example, or platform company like Microsoft, Meta, or Amazon. After the conceptualization process comes the data collection, refining, and measuring stage. Dagne’s focus is on the “digital workers” who enter the picture at this stage in the AI production process.

According to these digital workers contribute to the training process of AI systems in three steps: generating and annotating data (AI preparation), verifying model output (AI verification), and directly mimicking model behaviour to produce a service (AI impersonation).  They range “from higher-skilled, ‘macro-task’ […] workers [who] offer their services as graphic designers, computer programmers, statisticians, translators, and other professional services, to [those engaged in] ‘micro-task’ [work] which typically involve clerical tasks that can be completed quickly and require less specialized skills.” () As described by , “complex projects are broken down into smaller, easily accomplished tasks, which can then be distributed to a large number of workers.” Micro-task activities mainly involve the AI preparation aspect of AI training processes but can also include the AI verification and AI impersonation steps in AI training.

The Copyright Question

Much of the debate around copyright and AI has focused on whether using the underlying work of which inputs are constituted (the images, texts, musical works and other subject matter) for unauthorized learning constitutes copyright infringement. However, Dagne’s focus is on the copyright that can subsist over collected data, as we see in some and cases, and whether digital workers’ activities in the preparation of training data sets in the AI pipeline could itself give rise to a copyright interest. This question can be answered by examining the nature of digital workers’ contributions to the tasks assigned to them and the ownership of copyright under the contractual agreements that digital workers sign with platforms.

Digital workers in the AI production value chain collect raw data and help add extra meaning by associating each piece of data with relevant attributive tags. Although have argued that this attributive task is a mundane exercise that could ultimately be automated, others like have contended that tasks such as attribution will always be assigned to humans because of their capacity to recognize and classify data. Indeed, human intervention is now in demand to recognize the nuances and sophisticated details of specific data. As noted by , an example of such demand is in the medical field, where an understanding of scientific vocabulary is required.

From a doctrinal perspective, the copyright question is whether the contribution of digital workers described above meets the threshold of originality—which is defined, in Canadian law, by the Supreme Court of Canada’s ruling in , and requires more than trivial skill and judgment in the selection or arrangement of data. If so, we might ask whether recognizing the copyright status of such contributions could address these workers' invisibility. Even if, on account of originality, the tasks executed by digital workers amount to authorship, of course such authorship does not automatically translate into ownership. The ownership of the creative tasks conducted by digital workers as part of the collaborative venture is determined either by the workers’ status as employees or otherwise by contract—which means that it is determined in the context of significant power asymmetries and the routine exploitation of digital workers.

If copyright entrenches the inequities of an asymmetrical situation—by ensuring that the collective effort of digital workers in compiling essential datasets for AI training and AI development remains unseen and undervalued—Dagne thinks the time has come to confront its complicity. He suggests that, spurred by the arrival of AI, the copyright system needs to restructure the relationship between authors-as-(data)workers and corporate proprietors in pursuit of greater fairness.

‘Damola Adediji is a Visiting Researcher with IP Osgoode and Doctoral Candidate with the Centre for Law, Technology & Society at the University of Ottawa.

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Eight Mile Style, the company copyright-holder of “Lose Yourself” an action on copyright infringement against the National Party for copying an original musical work protected by copyright. In response, the National Party agreed that “Eminem Esque” borrows certain chords from the composition “Lose Yourself”. The National Party admitted that such borrowing might have resulted in the similarities between the two musical compositions. However, according to the National Party, such borrowing is not tantamount to copyright infringement. The court that to resolve the dispute; one must first distinguish between “illegitimate copying and permissible borrowing”. Such distinction is crucial for upholding , which is to provide a just reward for the creator and to encourage creative process.

IP Osgoode's Prof. emphasizes that is an . Musicians often experiment with previously known chords and tunes to develop original compositions, a process that often results in the emergence of whole new genres of . For example, such genres as jazz and blues represent the result of cross-fertilization of Western European and African traditions. Expansive copyright protection may if it penalizes borrowing in the . In this case, any musician aspiring to create a composition will second-guess herself in fear of a potential lawsuit for copyright infringement. Limited copyright protection may not only strip the copyright holder of her reward but also result in the situation when the creators will borrow from already known compositions without adding any creative value. Such an outcome is problematic for creators, users, the and public at large. The reason is that over a period of time such borrowing can produce a creative desert when all songs in the music charts sound alike. Copyright law is thus charged with striking a between the competing interests of the stakeholders.

In the Eight Mile Style case, the court agreed that musicians could be inspired by previous musical compositions and even use similar chords and melodies as building blocks for their own works. However, the unique compilation of these blocks in the musical work provides for distinctiveness and originality of the composition. Accordingly, to establish copyright infringement, the claimant must show either that . The analysis is therefore as the court looks beyond how many elements (chord-by-chord) of the original composition were replicated. The court accordingly ruled that “Lose Yourself” and “Eminem Esque” are “” and the latter “” in a way that makes the tracks “”. Such an alteration of original musical work constitutes infringement when “”.

The court ruled that the National Party used (including copying and reproduction) the song “Lose Yourself” without any authorization in its advertising campaigns. These actions constitute infringement under the . The court assessed the damages according to the user principle i.e., “”. In assessing damages, the court examined a number of factors such as, for example, the conditions under which the licenses for “Lose Yourself” have been previously granted by the Eight Mile Style and the territorial coverage of the broadcasting for Eminem Esque. After examining these factors, the court concluded that the license fee award against the National Party constitutes NZ $ 600 000. The court also noted that the National Party included Eminem Esque in its political campaign after obtaining professional advice from the third parties. The second hearing will determine whether the third parties will carry on the ultimate liability. Now we can only speculate whether the third parties will pay damages and at what amount. Yet it is clear that in assessing the third parties’ liability for professional advice, the court has to analyse the nature of relationship between the third parties and the National Party, to what extent the National Party relied on the given professional advice.

Ksenia Polonskaya is an IPilogue Editor and a PhD Candidate at Queen's University, Faculty of Law.

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As a member of a creative industry, music, I have spent my life around authors – the creators of original work – and I know a thing or two about originality. In , the court took a close look at the meaning of originality in copyright law. As a benefit to its members, the Law Society of Upper Canada (LSUC) operated a reproduction service wherein they would photocopy requested passages from legal materials and send these reproductions to the requesters. In this case, CCH accused the (LSUC) of violating their copyright��by reproducing protected materials. In defence, the LSUC counterclaimed, asking for a declaration that the single reproduction of a limited selection of text, made either by the LSUC staff or a library patron, for the purpose of research, did not infringe copyright. This counterclaim was dismissed at the as well as the . However, at the Supreme Court of Canada (SCC) it was held that the LSUC was not infringing copyright when a single copy was made in accordance with its access policy.

The most interesting thing about is that the SCC, in its ruling, spent considerable time examining what exactly is meant by "original" as used in the . McLachlin CJ, speaking for a unanimous court, defined originality in copyright law thusly:

For a work to be "original" within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one's knowledge, developed aptitude or practised ability in producing the work. By judgment, I mean the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort.

My reaction, that this definition was flawed, was in response to the court's ruling that for something to be original, it need not be creative. Immediately, I began to list examples from music which could meet the above definition, but which would not be described by any musician as being original. (While it is out of the scope of this post, consider briefly a series of arpeggios, the writing of which would demonstrate both skill and judgement as described above, but would certainly not be considered original).

Contrast this with copyright law��in places such as Japan, where there is no originality requirement. Instead, Japan's copyright law requires that copyrightable works be expressed in This is exactly what I felt had been missing in the SCC's definition of "original". Now, let me tell you why I was wrong.

Explicitly including creativity as part of originality in copyright law would significantly raise the threshold works must meet to be copyrightable. The end result being, fewer works would receive copyright protection, and more would enter the public domain. As a musician I am in the somewhat unique position of being both a user of copyrightable works (as we all are), but also an author. I understand the balancing of copyright – the need to protect authors and their work, while still having accessibility for users. Including a creativity requirement in the definition of orignality would tip the scales in this delicate balance, shifting copyright to favour users, at the
detriment of authors.��By not including creativity, per se, as part of their definition of originality, the SCC has allowed for a threshold of originality which produces the balance copyright law aims to achieve.

I will admit that part of my need for creativity stems from an artistic, but perhaps pompous, concern that without it, seemingly "unworthy" works would be granted copyright protection. Thankfully, I am not (yet!) a member of the Supreme Court of Canada.

Nadia Klein is a JD candidate at Osgoode Hall Law School and is currently��enrolled in the course "Law & Social Change: Creative Industries"��(Winter 2014).�� As part of the course requirements, students are asked to write a blog on a topic of their choice.

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Quoting musician Greg Gillis (a.k.a. “”), Lessig illuminates the concept as “[t]his appropriation time where any grade-school kid [who] has a copy of Photoshop [….] can download a picture of George Bush and manipulate his face how they [sic] want.”��This redefinition of authorship in the digital age is echoed in the Ecce Homo v. Ecce Mono controversy too, because it questions whether copyright should be used to protect something that “defaces” or reduces the value of the original work, even if it falls within the four traditional areas of copyrightable works.

In early October, Vladimir Umanets, co-founder of the so-called art movement “,” at the Tate Modern gallery in London. In his own eyes, this was not an act of vandalism, but a redefinition of a piece of art as not-art, and therefore, as a piece of Yellowism. Whether or not I actually understand the nuances of Umanets’ manifesto, I do wonder about the implications his actions might have on the perception of what remix culture constitutes. To me, this art-(and now, not-art)-is-in-the-eye-of-the-beholder perspective is being used as a justification for vandalism here. Of course, I might only be saying this because the underlying work in question is a famous painting in its own right, and the Yellowist’s (Umanets refuses the labels “artist” or “vandal”) contribution to it is detrimental to its innate value, at least for me. Umanets would disagree, believing that he has through its inclusion in the folds of Yellowism. His act asks whether the value of a derivative work is inherently linked to the effect of increasing or decreasing the original’s worth, or if it can have a separate and stand-alone value as a new work of art.

The parallel Ecce Homo v. Ecce Mono debate considers whether the value of a derivative work rests on public reaction, if its economic and artistic values are confused with each other, and if something can be “valuable vandalism.” For instance, , perhaps the most famous guerilla artist of our time, has often probed the murky philosophy behind the legal definition of “art,” by producing enduring stencilled works on state-owned property, which have had a lasting and positive effect on the public’s view of art, while creating .

What then, is the difference between Banksy, Cecilia Gimenez (the Ecce Mono creator) and Umanets? Is it the perceived value attached to the purpose that the work serves, perhaps making it worthy of being categorized as art? Or is it the real (monetary) value that the work is given, so that it is only considered art because it commands a price, which sends the (inaccurate) message that a work of art is only so if it is considered economically valuable? Or is it that the very act of vandalism is a blunt manifestation of the abstract concept of the “remix” in remix culture, where all derivative works are vandalised versions of the originals to some degree?

Copyright law does not take it upon itself to determine the quality of a literary, dramatic, musical or artistic work but only decides if it is copyrightable, . Derivative works , arguably falling into both categories at times (thanks to the oft-contradictory perceptions of the originality requirement in copyright). For cases of vandalism, it may well be that the process of defacement creates a new work that is itself worthy of protection, independent of its perceived quality. For Banksy, this may be the recognition of his works as distinctive expressions of thought, but for Gimenez, it may be the distinctiveness attributed to the Ecce Mono by its circumstances, resulting fame, and the money it generates for the Sancti Spiritus foundation.

Umanets’ act is arguably neither of the above, even as it incorporates elements of both. The defaced painting could well be copyrightable; the issue with it, as it is may be with all “vandal works,” is whether it is ethically worthy of copyright protection, even if legally found to be so. This contemplation may be debatable in the application of copyright law, but is, I believe, one of the fundamental questions that remix culture-at-work raises.

Mekhala Chaubal is a JD Candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program.�� As part of the program requirements, students are asked to write a blog on a topic of their choice.

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In Neil Netanel’s recent book titled, he advocates for a copyright system that puts freedom of expression at the forefront. He argues that copyright has been thought of as a property right despite the fact that it was originally conceived as a balance designed to encourage original expression. As a result, freedom of expression has come into direct conflict with copyright.

In , he considers the history of copyright law and comes to the conclusion that the conflict between freedom of expression and copyright has risen to the forefront by reason of changes in technology. Copying different forms of media has become easier than when copyright law was first conceived. Furthermore, with the expansion of the internet, the transmission and dissemination of works has become extremely convenient.

Based on copyright law’s original purpose, Netanel submits that the scope of rights given to authors should be determined based on its ability to serve as an “engine of free speech.” According to him, there are two reasons behind elevating free speech to such a level. Firstly, the enormous potential impact that copyright law has on free speech leads to the inescapable conclusion that free speech should serve to shape copyright. Secondly, free speech would likely be the only way to properly determine the scope of rights afforded to authors.

Netanel’s views of the US copyright system allow him to submit an argument where free speech and copyright inform one another. The fact that copyright is enshrined in the US Constitution supports to this result. However, in Canada, free speech, as enshrined in our Charter, would seem to indicate that it must dictate the limits of copyright as the Copyright Act must be consistent with the Charter’s rights and values. It is this prospect that I find troubling especially in the digital age.

In Netanel’s Introduction, he also discusses the ongoing lawsuits against YouTube and MySpace. I argue that despite the fact that all of the material on YouTube and MySpace can be considered some form of expression, there is a lot of material that is not original and simply a direct, impermissible, uncredited quote from the original author. One solution, currently in practice, has been blanket licenses by the likes of Universal Studios, but this licensing system really does nothing to promote original expression. Although the concept of originality does not jibe with the goal of free expression, I am somewhat unwilling to entirely give up on the concept. In my opinion, it cannot be denied that the copyright system does provide some incentive for original expression. A blanket license takes away whatever incentive, however small, for original expression that the copyright system could provide.

Furthermore, YouTube is not exactly known for preventing what are obvious infringements of copyright. One can frequently find full length music videos and television shows with very little added expression if any. In fact, one can even find users pirating other users; submitting material as if it were their own. Free expression does inform and should inform copyright, especially when it is clear there is meaning behind the expression. Unfortunately, in the context of YouTube, the possibility of abuse is far too high and any meaning is frequently hidden by blatant plagiarism. Freedom of expression, under these circumstances, should be limited to the extent that it can only inform copyright but should not override it.

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Like many words, “authorship” takes on distinct meaning in the realm of copyright law.�� However, it may be difficult to divorce historical values associated with the term even when it is used in the legal realm.�� In his article, “”, Alan L. Durham explores the paradigm of romantic authorship which he views as a persistent influence on modern American copyright doctrine.�� The romantic model, in Durham’s view, tends to misrepresent the author as a wielder of self-generated, personal, and even “magical” creative power.�� Thus, using the conceptual framework of information theory, Durham examines two alternative and more inclusive redefinitions of authorship.��

His first model views authorship as the process of adding “noise” to a signal.�� Authors are themselves seen as imperfect conduits, adding “conditional entropy” to their work with shaky hands, flawed vision, or other inherent imperfections.�� However, in Durham’s view, this approach minimizes the human presence of the author and operates on an incomplete understanding of the role of the artist.�� Thus, he prefers a second model of authorship which asks whether the human transmitter in a particular instance freely selected the elements of his or her work from a range of alternatives.�� This second theory of authorship focuses on the inevitability of the work in question. ��Effectively, where there is more opportunity for choice, the work in question is less inevitable and authorship is more likely to be recognized.

While Durham’s application of information theory leads him to an interesting conceptualization of authorship, his approach is also a response to the unique copyright context of the United States.�� His concern about the prevalence of the romantic notion of authorship in copyright doctrine is based in no small part on the American definition of “originality” which includes the requirement that a copyrightable work contain a “modicum of creativity”.�� As a result, Durham perceives the American definition of authorship as under-inclusive.�� In his view, the “free selection” theory of authorship described above would not exclude protection of any works that have been found to attract copyright to date while simultaneously expanding the scope of copyright to include new and perhaps uncreative works.

In contrast, the Canadian definition of “originality” as stated by McLachlin J. in is explicitly defined as falling somewhere between a creativity standard (like the American model) and the Lockean “sweat of the brow” standard.�� Rather than insisting on a modicum of creativity, Canadian law simply requires that a copyrighted work be more than a mere copy.�� To determine whether a work meets this standard, courts will ask whether the expression in question required skill and judgement to produce.�� This approach appears to be more inclusive that the American standard and may resolve many of Durham’s concerns in the Canadian context by sufficiently removing romantic creative elements from the legal definition of authorship.

While the CCH decision can be seen as broadening the definition of originality when compared to the American model, it is interesting to consider if and how Durham’s “free choice” standard of authorship differs from the current Canadian paradigm.�� Like Durham’s model, McLachlin J.’s definition of “judgement” in CCH, considers whether the production of the work in question involved “evaluation by comparing different possible options”.�� On the other hand, the Durham article theorizes that works of “arbitrary, indeterminate, or mechanical means” might satisfy his proposed “free choice” originality requirement and attract copyright protection.�� It is certainly conceivable that works of this kind would fail to meet the current Canadian “skill and judgement” standard.

If Durham’s “free choice” model of authorship would in effect increase the scope of copyright protection beyond the current Canadian legal definition, it is relevant to ask whether such an expansion would serve the policy aims of the copyright system.�� Like many scholars, Durham has noted, “if copyright law is to benefit the public as intended, it must balance the opposing tugs of author incentive and consumer access”.�� We should therefore ask: are arbitrary, indeterminate, and mechanical works currently being under-produced because they are not adequately protected?�� Is there a social benefit in attempting to increase production of this kind of work through fortified copyright protection?�� These are questions that Durham does not address in substantive detail, yet they are relevant to a discussion of authorship and originality in the context of copyright law.

It is also possible that a copyright monopoly is not the appropriate means of ensuring protection for certain kinds of expression that would be defined as copyrightable by the Durham model.�� Mechanically produced databases, for example, may arguably be better protected by unfair competition law or even by a sui generis right to data.�� Although Durham acknowledges that his proposed theory of authorship would have to operate in conjunction with the “traditional dichotomies of copyright law”, he does not explore how far his new copyrightable territory would extend or the implications of the expansion.

While Durham’s article prompts many questions, especially in the context of Canadian copyright law, it also adds valuable perspective.�� Defining authorship in relation to free choice and “indeterminacy” bolsters the increasingly popular view that most authors are essentially engaged in the process of selecting and recombining pre-existing elements.�� The article also prompts us to re-examine some of the biases and assumptions that affect our approach to the legal constructs at the heart of our copyright system.�� It is not entirely clear whether Durham is advocating substantive legal change in these areas or simply encouraging readers to consider them in a new light. ��However, if we are to restructure the legal definition of terms like “originality”, due consideration must be given to the policy objectives that underpin copyright law in addition to prevailing conceptions of authorship.

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IceTV Pty Limited v Nine Network Australia Pty Limited

In mid-2008, when the High Court of Australia granted special leave to appeal in the copyright case IceTV Pty Ltd v Nine Network Australia Pty Ltd, Australian copyright scholars were surprised. When, on 22 April 2009 the High Court returned a 6-0 verdict finding in favour of IceTV and that no copyright infringement had occurred, Australian copyright academics and practitioners were even more surprised as this was not the verdict that many had been expecting.

The facts of the case and decisions of the earlier courts were canvassed in an earlier post on the High Court hearing (see ‘The IceTV Hearing Cometh' ). The High Court restored the findings of the primary judge, Bennett J and reversed the findings of the Full Federal Court. Two judgments were delivered: the first written by French CJ, Crennan and Kiefel JJ and the second by Gummow, Hayne and Heydon JJ.�� Although each judgment ultimately reached the same conclusion, there were subtle differences between the two that may have broader implications for Australian copyright law. As it will become apparent, the joint judgments dealt with a variety of complex issues, and so only the bare bones of the analysis can be given here.

��

The judgment of French CJ, Crennan and Kiefel JJ

French CJ, Crennan and Kiefel JJ first approached the issue from the concepts of ‘authorship' and the idea/expression dichotomy. The judgment noted that, while both judges and academics fail to agree on the underpinnings of the idea/expression dichotomy, all agree that it is a significant part of copyright law. The judgment then applied this dichotomy to a discussion on what constituted a substantial part of a copyright work, more broadly and subsequently in the case at hand. It found that the concept of originality in copyright law - not whether a work had originated with an author, but rather the possible ways that the material in question could be expressed - had an important role to play in a determination of what constituted a substantial part for the purposes of infringement.

After this consideration, French CJ, Crennan and Kiefel JJ found, in the present case, that (at [43]):

[T]he expression of the time and title information, in respect of each programme, is not a form of expression which requires particular mental effort or exertion. The way in which the information can be conveyed is very limited. Expressing a title of a programme to be broadcast merely requires knowledge of the title, generally bestowed by the producer of the programme rather than by a broadcaster of it....The authors of the Weekly Schedule...had little, if any, choice in the particular form of expression adopted, as that expression was essentially dictated by the nature of the information. That expression lacks the requisite originality (in the sense explained) for the part to constitute a substantial part. (citations omitted)

Subsequently, French CJ, Crennan and Kiefel JJ considered the concept of ‘skill and labour' in the context of a determination of copyright infringement. The judgment found that ‘considerable skill and labour' was ‘involved in programming decisions' (at [53]). However, this skill and labour was not relevant to the production of the Weekly Schedules and subsequently any determination of copyright infringement (at [54]):

[T]he critical question is whether skill and labour was directed to the particular form of expression of the time and title information, including its chronological arrangement. The skill and labour devoted by Nine's employees to programming decisions was not directed to the originality of the particular form of expression of the time and title information. The level of skill and labour required to express the time and title information was minimal. (citations omitted)

��

The judgment of Gummow, Hayne and Heydon JJ

Gummow, Hayne and Heydon JJ began by recounting the development of the law of compilations under Australian copyright law, before commenting briefly on the rise of digital technologies and developments in devices that give greater power to the consumer when watching their chosen television programs. Such devices allow consumers to ‘skip' advertisements broadcast during television show commercial breaks; yet it these advertisements that produce ‘the majority of the revenue of the Nine Network' (at [85]). The focus on these details was one of the major differences between the joint judgments, with the judgment of Gummow, Hayne and Heydon JJ providing a greater analysis of the technological and commercial implications of the case at hand.

Subsequently the judgment recapped how the Nine Network developed its Weekly Schedule, identifying a seven-step process that included decisions by Nine program executives; the entry of material into an Excel spreadsheet at various points in the process; and then finally any last-minute amendments to the schedule once it had already been released to the public.

In a similar vein to French CJ, Crennan and Kiefel JJ, the second joint judgment also emphasised caution with respect to the ‘skill and labour' test. It was noted (at [131]) that:

[It is important] to emphasise the dangers when applying the Act of adopting the rhetoric of "appropriation" of "skill and labour". A finding that one party has "appropriated" skill and labour, of itself, is not determinative of the issue of infringement of a copyright work. The Act does not provide for any general doctrine of "misappropriation" and does not afford protection to skill and labour alone. (citations omitted)

When considered against what constituted a ‘substantial part' for the purposes of the present case, the joint judgment was critical of the fact that the Nine Network had changed its opinion on the copyright work in question. It ultimately found (at [152]) that:

the Court should accept the submission by Ice that the originality of the compilation being the Weekly Schedule lay not in the provision of the time and title information, but in the schedule and presentation of that information together with additional programme information and synopses, to produce a composite whole.

Consequently the joint judgment stated its approval of the findings of Bennett J (at [167]):

The primary judge approached the issue of substantiality correctly when she stressed the detailed and lengthy preparatory work involved in what are identified in these reasons as steps one through four was directed to the conduct of the business of the Nine Network in broadcasting programmes which would attract viewers.

On this basis, the joint judgment found that IceTV had not reproduced a substantial part of the Weekly Schedule.

��

Broader implications of IceTV v Nine Network

I noted earlier that the result in IceTV v Nine Network surprised many of Australia's copyright lawyers and academics. Although it may be too early to propose a copyright revolution is underway, the findings of the High Court have broader implications that may lead the way to a more ‘user-friendly' copyright law.

First, the judgments reinstated the importance of the idea/expression dichotomy in Australian copyright law. Although this is, in many a fundamental aspect of copyright (and, as the Gummow J joint judgment noted, enshrined in the US Copyright Act), in recent years it was argued that decisions such as Desktop Marketing Systems v Telstra Corporation, were responsible for a ‘whittling away' of this doctrine under Australian law. The repeat emphasis of this doctrine in the judgments highlights that it is still to be seen as a significant part of Australian copyright.

Second, although the case focused on infringement rather than the subsistence of copyright, comments in both judgments suggest that the High Court may take a far more discerning approach to the subsistence of copyright, particularly in compilations, in the future. At the end of the Gummow, Hayne and Heydon JJ judgment it was noted that (at [188]) ‘[i]t may be that the reasoning in Desktop Marketing [where a low level of originality for the purposes of subsistence of copyright was found] with respect to compilations is out of line with the understanding of copyright law over many years.' Such comments suggest that, should the High Court be faced with a challenge to the subistence of copyright in a compilation, it is willing to fundamentally re-examine this area of law.

Hopefully the High Court will get a greater chance to evaluate these issues over the next few years.

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The standard of originality in Canadian copyright law has recently undergone significant transformation. Traditionally a jurisdiction that, in the eyes of many, had adopted a 'sweat of the brow' standard, Canada is now a 'skill and judgment' jurisdiction. The shift took place in CCH v. Law Society. This chapter (1) describes and contextualizes the shift; (2) analyzes its presuppositions in respect of the Canadian conception of the purpose of copyright law; and (3) identifies difficulties and ambiguities that may preclude its full development. I argue that the doctrinal shift is in tension with certain aspects of the vision of the purpose of copyright law in the name of which it took place.

Specifically, the concept of a copyright 'balance' between authors and users that CCH deploys in its rejection of the 'sweat of the brow' standard in favour of a the 'skill and judgment' standard is insufficient for the task. This tension between doctrine and vision generates a justificatory vacuum giving rise to difficulties and ambiguities regarding the full development of the landmark shift from 'sweat of the brow' to 'skill and judgment'. In that vein, I speculate as to the conditions for the possibility of a resolution of that tension. My point is that, contrary to appearances, the historical struggle between originality schools has not been overcome. Rather, it has transmuted into a struggle between a value paradigm and an authorship paradigm of copyright law. Moving beyond the justificatory vacuum besetting the shift from 'sweat of the brow' to 'skill and judgment' would require unambiguous adoption of the authorship paradigm.

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