Original Facts: Skill, Judgment, And the Public Domain‪.‬

It has long been said that facts cannot be protected by copyright. Copyright jurisprudence has been less than clear, however, about what constitutes a fact, and about the reasons why facts cannot be copyrighted. 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. At the same time, the Court 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 focuses on the problems that face courts in cases involving "original facts"--those facts that owe their existence to the exercise of individual intellectual effort. She identifies and discusses three kinds of original facts: those discovered through skill and judgment, those that are valuable due to the particular selection or arrangement, and those that are not necessarily true. Jurisprudence from Canada is compared with American and Australian cases, revealing different ways of applying the principle that there is no copyright in facts. The author examines the policy reasons why facts should not be copyrightable, and argues for an interpretive approach that leaves facts in the public domain.