In 1903, in Bleistein v Donaldson Lithographing, Justice Holmes famously concluded that judges are ill-suited to make merit
judgments when determining the eligibility for protection of works. Subsequent courts and commentators have generally followed
his caution. Yet, no one has thought through how the copyright system would work were Justice Holmes not heeded. What if courts
were called upon to determine the aesthetic merit of a work? How would they go about it? And would they be able to separate
the gold from the dross by drawing upon an aesthetic evaluation of such kind?
These questions inevitably arise upon
reading some recent proposals to raise the originality threshold. Though it is rarely explicitly recognized, the reconfiguration
that these proposals entails would effectively bring originality’s meaning in copyright law more into line with how the term
is used in aesthetics, where it is considered a function of the work’s level of creativity, measured by its degree of departure
from conventional expression.
Drawing on the concept of domain from sociocultural studies of creativity, we explain
just why it would be so enormously problematic for courts to identify and to apply a stricter originality criterion that would
require them to make decisions on the basis of merit. By comparing the domain of copyright law to the domain of patent law,
we argue that it is the latter’s relative coherence and orderliness that enables patent examiners to get traction when assessing
an invention’s degree of non-obviousness. The cultural domain, by contrast, is less rule-bound, and therefore non-obviousness
is much harder to establish and validate. Aesthetics - both as a set of cultural practices and products and as an academic
discipline - are simply too heterogeneous to provide adequate toehold for the legal analysis of higher degrees of originality.
the reasons and reasoning behind the ban on aesthetic merit in copyright law from a humanities perspective, this article offers
a more detailed and nuanced account of Justice Holmes’ conclusion. Contrary to conventional wisdom we argue that the inherent
subjectivity of aesthetic preferences does not in itself make it any harder to pinpoint an objective standard of aesthetic
merit, though it does make it harder to provide justification for any such standard. Furthermore, the article questions the
premise on which the proposal to raise the originality threshold rests, namely that it will cause the undeserving bottom of
works to fall out, leaving only aesthetically worthy and socially valuable works protected. Before introducing a stricter
originality criterion we need a more careful and empirically based analysis of just what the problems are, what areas of copyright
law are affected, and exactly how and why a higher threshold would improve the situation.