Copyright and the Draftsperson

The latest issue of the New York Law Journal has an interesting piece on how the law of copyright applies to contracts and other documents drafted within a law firm.

Does contract drafting reach the necessary level of originality? I would have thought that these contracts are essentially collaborative works, given the extent to which one rarely sees someone starting with a blank sheet of paper. Novel clauses keep getting borrowed and reappearing in future contracts.

Does it matter what the status is of the lawyer drafting the contracts? Associates are employees and drafting is within the scope of their employment. Partners have a fiduciary obligation to the partnership, but I’ve never seen an assignment of copyright to a firm.

Who owns a contract template? The firm which produced it, or the client who paid for it. Here custom favours the firm, unless the client makes it clear that they want rights over the work product.

All in all food for thought.

As for Canada, my partner Andrea Rush has reminded me of the Cour Superieure case, Arcon Canada inc. c. Arcobec Aluminium inc., [1986] 7 C.P.R. (36) 382 (CS), which mentions copyright in contracts. There is also an excellent summary in a paper entitled Propriété intellectuelle relativement aux documents rédigés par l’avocat, in which the author addresses the following questions:

Qui est propriétaire des droits de propriété intellectuelle sur les recherches, opinions juridiques, lois et jugements? Les recherches et opinions juridiques peuvent elles être considérées comme tout autre objet de propriété intellectuelle?

I’ve only quickly looked at the Arcon case, but it seems to apply to model contract forms, like those in use in the 1923 NSW decision of Real Estate Institute v. Wood. They are a long way from one off contracts, in terms of commercial value.


  1. And given the occasional importance of a comma, I can imagine the application of copyright standards would be very tricky business.