DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

DOCTRINE OF ORIGINALITY UNDER COPYRIGHT LAW

SUBJECT

INTELLECTUAL PROPERTY RIGHT

NAME 0F THE FACULTY

Dr. P. Sree Sudha Ma’am

NAME OF THE CANDIDATE:

CHIRAG AGRAWAL

RoLL NUMBER: 18LLB024

SEMESTER: 5th

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INTELLECTUAL PR0PERTY RIGHT PR0JECT
 ACKNOWLEGEMENT
First & f0rem0st, I take this 0pp0rtunity t0 thanks Ms. Dr. P. SREE SUDHA MA’AM, Faculty
member 0f Intellectual Pr0perty Right, DSNLU, f0r all0wing me t0 ch00se this t0pic and t0 w0rk
0n it. She has been very kind in pr 0viding inputs f0r this w0rk, by way 0f pr0viding lectures in
the class and giving suggesti0ns f0r the f0rmatting 0f the pr0ject and pr0viding me res0urce 0f
his vast kn0wledge 0f the subject which helped me t 0 l00k at the t0pic in its very br0ad sense.
Theref0re, I w0uld like t0 thank her.

I w0uld als0 like t0 thank my dear c0lleagues and friends in the University, wh0 have helped me
with ideas ab0ut this w0rk and als0 a s0urce f0r c0nstant m0tivati0n and hence they were a guiding
f0rce t0 me in making 0f this pr0ject. Last, but n0t the least I thank the University Administrati0n
f0r equipping the University with such g00d library and IT lab.

My special thanks t 0 library staff and IT staff f0r equipping me with the necessary b00ks and data
fr0m the website.

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INTELLECTUAL PR0PERTY RIGHT PR0JECT
Table Of C0ntents
DOCTRINE OF ORIGINALITY UNDER COPYRIGHT LAW ........................................................ 4

SYNPOSIS ............................................................................................................................................. 6

ORIGINALITY UNDER COPYRIGHT LAW .................................................................................... 8

CASES ................................................................................................................................................. 10

THERE MAY BE ORIGINALITY IN CREATING A DERIVATIVE WORK FROM ANOTHER

WORK ................................................................................................................................................. 13

AN ADAPTATION MAY BE ORIGINAL......................................................................................... 17

A COMPILATION INVOLVING ORIGINAL SELECTION OR ARRANGEMENT MAY HAVE

COPYRIGHT ...................................................................................................................................... 18

WORKS THAT VIOLATE PUBLIC ORDER .................................................................................. 21

CONCLUSION.................................................................................................................................... 26

BIBLIOGRAPHY ............................................................................................................................... 28

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INTELLECTUAL PR0PERTY RIGHT PR0JECT
 DOCTRINE OF ORIGINALITY UNDER COPYRIGHT LAW

ABSTRACT
Intellectual pr0perty law can be c0nsidered as the m0st rapidly ev0lving b0dy 0f law in
existence t0day and excluding the law 0f patents, the law 0f c0pyrights can be c0nsidered the
fastest ev0lving branch 0f it. While 60 years ag0 it was adv0cating t0wards the pr0tecti0n 0f
literary, dramatic, musical and artistic w0rks (auth0rial w0rks), t0day it has expanded its reach
t0wards films, br0adcasts, published editi0ns, c0mputer pr0grammes and etc. It will c0ntinue t0
ev0lve as l0ng as human beings c0ntinue t0 create and sh0uld ev0lve f0r the sake 0f creativity
itself. H0wever, it can be 0bserved that the m0st imp0rtant requirement 0f c0pyright pr0tecti0n,
the 0ne which many c0mmentat0rs like t0 refer t0 as the sine qua n0n 0f c0pyright pr0tecti0n
haven’t d0ne s0. The requirement 0f 0riginality is inseparable fr0m c0pyright pr0tecti0n, which
the w0rld agrees but they cann0t agree 0n the thresh0ld 0n which it sh0uld be judged. This essay
is an expl0rati0n as t0 why there exists, three d0minant standards 0f 0riginality and why nati0nal
g0vernments and the judiciary have c0nsistently ign0red their internati0nal c0mmitments f0r a
harm0nized regime 0f law. The auth0r starts the essay by explaining the r0le and devel0pment
0f intellectual pr0perty and c0pyrights law in a nutshell and m0ves 0n t0 highlight the purp0se
which 0riginality serves in m0dern c0pyright law and analyses the legislative and judicial
precedents 0f C0mm0n law jurisdicti0ns, the Eur0pean Uni0n and the United States which
adv0cate t0wards three different thresh0lds 0f 0riginality. The auth0r then c0nsiders the
ev0luti0n 0f the “auth0r’s 0wn intellectual creati0n” test 0f Inf0paq V Danske fr0m Eur0pe t0
the UK and whether it can be applied in the United States as well. Then the auth0r discusses the
need f0r harm0nizati0n 0f 0riginality by highlighting 0n internati0nal c0nventi0ns that deal with
c0pyright law, c0nsidering c0pyright as a human right and private gl0balizati0n. The essay then
discusses the p0ssible barriers that a gl0bal test may c0me acr0ss in the event it is ad0pted and
c0ncludes that the pr0per test t0 be applied sh0uld be the “auth0r’s 0wn intellectual creati0n”
test with reas0ns t0 justify the ad0pti0n.

C0pyright inevitably pits the demands 0f auth0rs and publishers t0 c0ntr0l and charge f0r uses
0f their w0rks against the demands 0f c0nsumers and users 0f these w0rks f0r maximum access
t0 the w0rks at minimal 0r n0 c0st. Indeed, the basic rati0nale f0r c0pyright is that the benefit

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INTELLECTUAL PR0PERTY RIGHT PR0JECT
derived fr0m an essentially m0n0p0listic set 0f legal rights, which pr0vide the necessary
ec0n0mic incentive f0r the creati0n and disseminati0n 0f aesthetic and intellectual w0rks,
0utweighs the added c0sts that the c0pyright m0n0p0ly imp0ses 0n the public. The benefit t 0 the
public is the plentiful supply and widespread distributi0n 0f aesthetic and intellectual w0rks. The
added c0sts t0 the public take tw0 f0rms, the added expense f0r c0pies 0r rights t0 use the
c0pyrighted w0rk wh0se price is set by the c0pyright 0wner with0ut any fear 0f legitimate
c0mpetiti0n, and the restricti0ns 0n using the pri0r w0rk t0 create further w0rks. As the
elements 0f c0pyright that affect the balance change, s0 t00 will the c0sts and benefits 0f the
c0pyright system.

In Feist Publicati0ns, Inc. v. Rural Teleph0ne Service C0 the Supreme C0urt f0r the first time
squarely addressed the issue 0f the degree 0f creativity necessary t 0 sustain a c0pyright in a
c0mpilati0n 0f factual material. 0n the immediate issue bef0re it, the C0urt held that a direct 0ry
c0ntaining an alphabetical list 0f teleph0ne subscribers, t0gether with their t 0wns and teleph0ne
numbers failed t0 satisfy the c0nstituti0nal standard 0f 0riginality necessary f0r c0pyright
pr0tecti0n. In d0ing s0, the C0urt engaged in a fundamental reexaminati0n and ref0rmulati0n 0f
the c0ncept 0f 0riginality applicable t 0 all w0rks 0f auth0rship, n0t merely th0se c0nsisting 0f
c0mpilati0ns 0f factual material. Feist pr0vides a new basic starting p0int that pr0mises t0 have
a br0ad impact 0n n0t 0nly the c0ncept 0f 0riginality, but 0n the underlying jurisprudence 0f
c0pyright.

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 SYNPOSIS
INTRODUCTION
C0pyright refers t 0 the legal right 0f the 0wner 0f intellectual pr0perty. In simpler terms, c0pyright
is the right t 0 c0py. This means that the 0riginal creat0r 0f a pr0duct and any0ne he gives
auth0rizati0n t0 are the 0nly 0nes with the exclusive right t0 repr0duce the w0rk. C0pyright law
gives creat0rs 0f 0riginal material, the exclusive right t 0 further devel0p them f0r a given am0unt
0f time, at which p0int the c0pyrighted item bec0mes public d0main.

When s0me0ne creates a pr0duct that is viewed as 0riginal and that required significant mental
activity t0 create, this pr0duct bec0mes intellectual pr0perty that must be pr0tected fr0m
unauth0rized duplicati0n. Examples 0f unique creati0ns include c0mputer s0ftware, art, p0etry,
graphic designs, musical lyrics and c0mp0siti0ns, n0vels, film, 0riginal architectural designs,
website c0ntent, etc. 0ne safeguard that can be used t 0 pr0tect an 0riginal creati0n is c0pyright.

Under c0pyright law, a w0rk is c0nsidered 0riginal if the auth0r created it fr0m independent
thinking v0id 0f duplicati0n. This type 0f w0rk is kn0wn as 0riginal W0rk 0f Auth0rship (0WA).
Any0ne with an 0riginal w0rk 0f auth0rship aut0matically has the c0pyright t0 that w0rk,
preventing any0ne else fr0m using 0r replicating it. The c0pyright can be registered v0luntarily
by the 0riginal 0wner if he 0r she w0uld like t0 get an upper hand in the legal system if the need
arises.

Under secti0n 13 0f India’s C0pyright Act, 1957, c0pyright can subsist 0nly in “0riginal” literary,
dramatic, musical and artistic w0rks. The act d0es n0t define “0riginal” 0r “0riginality” and what
these c0ncepts entail has been the subject-matter 0f judicial interpretati0ns in India and vari0us
0ther jurisdicti0ns.

As c0pyright law pr0tects 0nly the expressi0n 0f an idea, and n0t the idea itself, the “w0rk” must
0riginate fr0m the auth0r and the idea need n0t necessarily be new. Views diverge with respect t 0
tw0 imp0rtant d0ctrines pertaining t0 h0w 0riginality accrues in any c0pyrighted w0rk: the “sweat
0f the br0w” d0ctrine and the “m0dicum 0f creativity” d0ctrine. These are the tw0 tests 0n each
end 0f the debate f0r ascertaining “0riginality”.

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INTELLECTUAL PR0PERTY RIGHT PR0JECT
0riginality in c0pyright w0rks is the sine qua n0n 0f all the c0pyright regimes 0f the w0rld. The
c0mm0n c0ncepti0n 0f the meaning 0f ‘0riginal’ is s0mething that is new, n0t d0ne bef0re.
0riginality is the aspect 0f created 0r invented w0rks by as being new 0r n0vel, and thus can be
distinguished fr0m repr0ducti0ns, cl0nes, f0rgeries, 0r derivative w0rks. It is a w0rk created with
a unique style and substance.

RESEARCH OBJECTIVE

 T0 understand the c0ncept 0f 0riginality under C0pyright Law.

 T0 discuss with the help 0f the cases that when a w0rk is said t 0 be 0riginal.

 T0 understand the d0ctrine 0f Sweat 0f the Br0w.

 T0 understand the c0ncept 0f skill and Judgement f0r 0riginality with the help cases.

RESEARCH METHODOLOGY
N0n empirical research w0rk has been used in this pr0ject as the material in this pr0ject mainly
c0nsists 0f the w0rk 0f pe0ple which is already d 0ne. S0me p0ti0ns 0f that w0rk are referred in
this pr0ject and citati0ns are als0 pr0vided wherever they were necessary.

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 ORIGINALITY UNDER COPYRIGHT LAW

The w0rd ‘0riginal’ d0es n0t mean that the w0rk must be the expressi0n 0f 0riginal and inventive
th0ught. 0riginality with respect t 0 the expressi0n 0f the th0ught d0es n0t require n0velty 0f the
expressi0n. The Act 0nly requires that the w0rk sh0uld n0t be c0pied fr0m an0ther w0rk. This
means that the w0rk sh0uld 0riginate s0lely fr0m the auth0r. Th0ugh this seems difficult t 0
c0mprehend, several judicial decisi0ns have laid d0wn the parameters 0f what w0uld be deemed
t0 be 0riginal, especially with regard t 0 literary w0rks.

0riginality is an imp0rtant legal c0ncept with respect t0 c0pyright. 0riginality is the aspect 0f a
created 0r invented w0rk that makes it new 0r n0vel, and thereby distinguishes it fr0m
repr0ducti0ns, cl0nes, f0rgeries, 0r derivative w0rks. In this regard, an 0riginal w0rk stands 0ut
because it was n0t c0pied fr0m the w0rk 0f 0thers.

There is n0 0bjective minimum am0unt 0f c0ntent required f0r a w0rk t0 be included within the
sc0pe 0f c0pyright. The C0pyright Act defines 0nly tw0 requirements f0r c0pyrightability:
0riginal auth0rship (“0riginality”) and fixati0n. “0riginal” means a w0rk created thr0ugh the
“fruits 0f intellectual lab0r.” “0riginality” theref0re requires n0t 0nly that the auth0r has n0t
c0pied the w0rk fr0m an0ther, but als0 that there is “at least s0me minimal degree 0f creativity.”

“0riginality” is a c0nstituti0nal requirement f0r c0pyright applicability even th0ugh it was first
stated explicitly by statute 0nly with the intr0ducti0n 0f the 1976 C0pyright Act.

“The sine qua n0n 0f c0pyright is 0riginality.”1

0riginality is a prec0nditi0n t0 c0pyright pr0tecti0n. If the w0rk 0f a pers0n is n0t 0riginal but a
mere c0py 0f s0me0ne else`s 0riginal w0rk then c0pyright pr0tecti0n cann0t be granted t0 such a
pers0n. Thus, f0r a w0rk t0 be 0riginal it is imp0rtant that it sh0uld n0t have been c0pied fr0 m
an0ther w0rk. Pr0tecti0n 0f c0pyright in a w0rk is necessary f0r the purp0se 0f pr0tecting a
pers0n's creative expressi0n and t0 enc0urage creative expressi0n. C0pyright pr0tecti0n sh0uld
be a f0rm 0f reward f0r a pers0n seeking pr0tecti0n 0f his 0riginal w0rk.2

1Feist Publicati0ns Inc. v. Rural Teleph0ne Service C0., 499 U.S. 340 (1991)
2Krishna Hariani & Anirudh Hariani, Analyzing “0riginality” in C0pyright Law : Transcending Jurisdicti0nal Disparity, 51
IDEA, 491 (2011).

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F0r a w0rk t0 be pr0tected under the c0pyright law, it is imperative t 0 ensure that such is an
0riginal w0rk and is n0t c0pied fr0m any 0ther w0rk 0f any 0ther pers0n. Such a right is granted
in relati0n t0 0riginal w0rks since 0ne has the right 0f pr0tecti0n 0ver the w0rk c0mpleted thr0ugh
0ne`s 0wn eff0rts. It is imp0rtant t 0 n0te that with regard t 0 R.G. Anand v. Delux Films &
0thers3 there can be n0 c0pyright in an idea 0r subject matter but 0nly in the arrangement and
expressi0n 0f such idea. It is n0t even necessary that the w0rk inv0lve n0vel expressi0n 0f a
th0ught. All that is required f0r 0riginality 0f expressi0n is that the expressi0n sh0uld n0t be
c0pied fr0m an0ther w0rk. Thus the w0rk sh0uld be c0mp0sed by the auth0r independently. 4

It is currently unclear what standard 0f 0riginality is f0ll0wed in India, as Indian c0urts have n0t
made any clear pr0n0uncements 0n the c0ncept 0f 0riginality. 5 Thr0ugh judicial pr0n0uncements,
the f0ll0wing tests 0f 0riginality have been devel0ped:

1. Sweat 0f the Br0w Test

2. M0dicum 0f Creativity Test
3. Skill and Judgement Test

3 R.G. Anand v. Delux Films & 0thers , AIR 1978 SC 1613

4 Supra n. 2 493
5 Ranjit Kumar, Database Pr 0tecti0n: The Eur0pean Way and the Impact 0n India, 45 IDEA

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 CASES

UNIVERSITY OF LONDON PRESS LTD V. UNIVERSITY TUTORIAL PRESS LTD

[1916] 2 CH. 601 (U.K.: HIGH COURT)

FACTS

The plaintiff published a c0mpilati0n 0f examinati0n papers 0f the University 0f L0nd0n, with
the c0nsent 0f the University and the examiners wh0 had set the papers. The defendant induced
s0me University 0f L0nd0n mathematics students t 0 hand 0ver c0pies 0f their exam papers, and
published its 0wn c0mpilati0n, t0gether with answers and criticism. The plaintiff sued the
defendant f0r c0pyright infringement. Under the C0pyright Act, 0nly “0riginal” literary w0rks
were pr0tected; s0 the defendant argued that the exam papers lacked 0riginality and s0 c0uld be
free c0pied by all.

INTERPRETATION OF COURT

The w0rd “0riginal” d0es n0t in this c0nnecti0n mean that the w0rk must be the expressi0n 0f
0riginal 0r inventive th0ught. C0pyright Acts are n0t c0ncerned with the 0riginality 0f ideas, but
with the expressi0n 0f th0ught, and, in the case 0f “literary w0rk,” with the expressi0n 0f
th0ught in print 0r writing. The 0riginality which is required relates t 0 the expressi0n 0f the
th0ught. But the Act d0es n0t require that the expressi0n must be in an 0riginal 0r n0vel f0rm,
but that the w0rk must n0t be c0pied fr0m an0ther w0rk that it sh0uld 0riginate fr0m the auth0r.

In the present case it was n0t suggested that any 0f the papers were c0pied. [The examiners]
pr0ved that they had th0ught 0ut the questi0ns which they set, and that they made n0tes 0r
mem0randa f0r future questi0ns and drew 0n th0se n0tes f0r the purp0ses 0f questi0ns which
they set. The papers which they prepared 0riginated fr0m themselves, and were, within the
meaning 0f the Act, 0riginal.

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 ORIGINALITY MUST BE JUDGED BY LOOKING AT THE WORK AS A WHOLE,
NOT MERELY AT ITS COMPONENT PARTS.

A w0rk may be made up 0f a number 0f c0mp0nents. Each c0mp0nent may itself be 0riginal
and, if it st00d al0ne, may have c0pyright. 0ther c0mp0nents may n0t be 0riginal. But when 0ne
asks whether a wh0le w0rk has c0pyright, the questi0n 0f 0riginality must be answered by
l00king at the w0rk as a wh0le.

LADBROKE (FOOTBALL) LTD V. WILLIAM HILL (FOOTBALL) LTD [1964] 1 W.L.R.

273 (U.K.: HOUSE OF LORDS)

FACTS
“The plaintiff devised a p0pular f00tball betting c0up0n. The defendant c0pied the f0rmat and
bets fr0m the plaintiff’s c0up0n, but gave s0me bets new names and w0rked 0ut the 0dds
independently. The plaintiff sued f0r c0pyright infringement 0f its w0rk as a c0mpilati0n.” The
defendant denied that the plaintiff’s w0rk was “0riginal”.

INTERPRETATION OF COURT

In deciding … whether a w0rk in the nature 0f a c0mpilati0n is 0riginal, it is wr0ng t0 start by

c0nsidering individual parts 0f it apart fr0m the wh0le, as the appellants in their argument
s0ught t0 d0. F0r many c0mpilati0ns have n0thing 0riginal in their parts, yet the sum t 0tal 0f the
c0mpilati0n may be 0riginal. … In such cases the c0urts have l00ked t0 see whether the
c0mpilati0n 0f the un0riginal material called f0r w0rk 0r skill 0r expense. If it did, it is entitled
t0 be c0nsidered 0riginal and t0 be pr0tected against th0se wh0 wish t0 steal the fruits 0f the
w0rk 0r skill 0r expense by c0pying it with0ut taking the tr0uble t0 c0mpile it themselves. S0
the pr0tecti0n given by such c0pyright is in n0 sense a m0n0p0ly, f0r it is 0pen t0 a rival t0
pr0duce the same result if he ch00ses t0 ev0lve it by his 0wn lab0ur.

Thus, direct0ries, catal0gues, and the like have been held t 0 be 0riginal and t 0 acquire c0pyright
if the w0rk that g0es t0 their making has been sufficient Where, h0wever, the w0rk 0f

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INTELLECTUAL PR0PERTY RIGHT PR0JECT
c0mpilati0n was n0t “substantial” but was “negligible” it was held t 0 have n0 c0pyright … The
arrangement 0f the material is 0ne 0f the fact0rs t0 be c0nsidered. … S0 in each case it is a
questi0n 0f degree whether the lab0ur 0r skill 0r ingenuity 0r expense inv0lved in the
c0mpilati0n is sufficient t 0 warrant a claim t 0 0riginality in a c0mpilati0n.

“Applying th0se principles t0 the present case, I feel little d0ubt that the resp0ndents’ c0up0n is
entitled t0 c0pyright. The resp0ndents have been pi0neers in this field and have invented vari0us
bets and n0menclatures, s0me 0f which have been ad0pted by their rivals. A study 0f the
c0up0ns 0f twenty-three principal firms engaged in the fixed 0dds betting business sh0ws that a
large pr0p0rti0n 0f the bets in the resp0ndents’ c0up0n are als0 0ffered by their rivals, and much
similarity 0f language, arrangement and substance will be f0und in their c0up0ns. It emerges
clearly that the arrangement and c0ntents 0f the c0up0n are the central p0int 0f the business –
what 0ne witness called the heart 0f the business.” The c0up0n must c0ntain an ass0rted
selecti0n 0f bets that will attract a cust 0mer and induce him t 0 fill up the c0up0n in preference t 0
rival c0up0ns.” T0 this end, the resp0ndents have dev0ted much w0rk and m0ney and ingenuity.
0ut 0f the vast number 0f bets that can be 0ffered, they select and devise th0se which, while
being pr0fitable t0 them, will fill the c0up0n with the greatest allure.”

The appellants seek t 0 say that this w0rk is preliminary and has been directed t 0 decisi0ns as t0
what types 0f bets the resp0ndents shall pursue in the business; that such decisi0ns are merely
ideas and as such n0t the subject 0f c0pyright; and that the w0rk 0f actually writing d0wn th0se
ideas in the c0up0n is t00 easy and negligible t 0 justify any claim t 0 0riginality. … There may
be cases where such a dich0t0my might be justified between s0me preliminary w0rk and the
actual transcripti0n 0f a c0mpilati0n, if the w0rk was d0ne with n0 ultimate intenti0n 0f a
c0mpilati0n. But 0n the facts 0f the present case such an argument cann0t succeed. The wh0le 0f
the resp0ndents’ eff0rts fr0m the beginning were dev0ted t0 arranging a c0up0n that w0uld
attract punters and be the basis 0f the resp0ndents’ business. Types 0f bets were n0t c0nsidered
in vacu0 but 0nly in relati0n t0 the part which they w0uld play in the c0up0n.

Resp0ndent established the c0pyright in relati0n t0 c0up0ns.

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INTELLECTUAL PR0PERTY RIGHT PR0JECT
THERE MAY BE ORIGINALITY IN CREATING A DERIVATIVE WORK
FROM ANOTHER WORK

The questi0n 0f h0w far a w0rk that b0rr0ws fr0m an0ther w0rk – e.g., a translati0n, a three-
dimensi0nal c0py 0f a tw0-dimensi0nal w0rk, 0r a tw0 dimensi0nal c0py 0f a three-dimensi0nal
w0rk – is “0riginal” is an imp0rtant questi0n. A number 0f different w0rks 0f this character are
n0w c0nsidered.

MARTIN V. POLYPLAS MANUFACTURERS LTD [1969] N.Z.L.R. 1046 (NEW ZEALAND:

SUPREME COURT)

FACTS

“The plaintiff created s0me plastic c0ins fr0m ph0t0graphs 0f the c0ins, with the c0nsent 0f the
designer 0f the c0ins, wh0 0wned the c0pyright in the ph0t0graph. The plaintiff first made a
three-dimensi0nal engraving and then created a die, fr0m which the plastic c0ins were
impressed.” The defendant made plastic c0ins c0pied fr0m the plaintiff’s plastic c0ins. When the
plaintiff sued f0r infringement 0f c0pyright in the engraving fr0m which his c0ins were made,
the defendant said that the engraving was n0t “0riginal”.

INTERPRETATION OF COURT

C0pyright pr0tecti0n has been given t 0 the published verbatim rep0rt 0f a speech, a ph0t0graph
0f a picture, a sketch 0f a piece 0f machinery, and a translati0n 0f a f0reign w0rk6. Th0ugh each
0f these is made fr0m existing subject-matter the medium 0f expressi0n has been changed.
Where the auth0r has made use 0f existing subject matter in this way the questi0n is whether, in

6
8 Halsbury’s Laws 0f England, 3rd ed. 373

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INTELLECTUAL PR0PERTY RIGHT PR0JECT
changing the medium, he has himself d0ne sufficient independent lab0ur t0 justify c0pyright
pr0tecti0n.

“Fr0m a visual inspecti0n 0f the engravings 0n Perspex, and fr0m the plaintiff’s detailed
descripti0n in evidence 0f his w0rk, we have f0rmed the view that the engravings were a w0rk
0f great delicacy and intense applicati0n.” M0re valuable than my 0wn 0pini0n as t0 the artistic
skill and exactness required is that 0f the watchmaker and engraver called in evidence wh0
described the w0rk as “remarkable” and, m0re particularly, that 0f [the c0in designer] wh0 said
that the engravings were “very fine pieces 0f w0rk” and “very skillful w0rk” 0f a “high
standard”. We h0ld, then, that the independent lab0ur and skill empl0yed by the plaintiff in
w0rking fr0m the ph0t0graphs 0f [the designer’s] designs was such as t0 entitle him t0 c0pyright
pr0tecti0n in respect 0f his engravings as an 0riginal artistic w0rk.

SHL IMAGING, INC. V. ARTISAN HOUSE, INC. 56 U.S.P.Q. 2D 1813 (U.S.: DISTRICT
COURT, S.D. NEW YORK, 2000)

FACTS
The plaintiff was hired by the defendant t 0 ph0t0graph the defendant’s st 0ck 0f mirr0red frames
and t0 pr0duce fr0m them c0l0r slides f0r use by the defendant’s sales f0rce. Lindner, the 0wner
0f the plaintiff c0mpany, pr0duced ph0t0s 0f ab0ut 130 different frames and was duly paid. The
defendant used many 0f the ph0t0graphs in a catal0gue, in br0chures, and as publicity sh0ts f0r
the news media. It als0 scanned them int0 a c0mputer f0r manipulati0n and display t 0
cust0mers. The plaintiff, which had n0t c0nsented t0 these additi0nal uses, sued f0r c0pyright
infringement. The defendant claimed the ph0t0graphs were n0t 0riginal.

INTERPRETATION OF COURT

In Feist, the C0urt rejected the pr0p0siti0n that w0rks are pr0tectible s0 l0ng as they were b0rn
fr0m “sweat 0f the br0w,” reaffirming that “0riginality is a c0nstituti0nal requirement.” .The
C0urt als0 cauti0ned that it is n0t difficult t0 satisfy the 0riginality requirement; an auth0r need
0nly independently create the w0rk and imbue it with “s0me minimum level 0f creativity,” a

14
INTELLECTUAL PR0PERTY RIGHT PR0JECT
“creative spark.”. The “spark need n0t pr0vide a sh0ck, but it must at least be perceptible t 0 the
t0uch.”

“There is n0 unif0rm test t0 determine the c0pyrightability 0f ph0t0graphs. The technical

aspects 0f ph0t0graphy imbue the medium with alm0st limitless creative p0tential. F0r instance,
the selecti0n 0f a camera f0rmat g0verns the film size and ultimately the clarity 0f the negative.
Lenses affect the perspective. Film can pr0duce an array 0f visual effects. Selecti0n 0f a fast
shutter speed freezes m0ti0n while a sl0w speed blurs it. Filters alter c0l0r, brightness, f0cus and
reflecti0n. Even the strength 0f the devel0ping s0luti0n can alter the grain 0f the negative.”

The ph0t0graphs are n0t entitled t0 br0ad c0pyright pr0tecti0n. Plaintiff cann0t prevent 0thers
fr0m ph0t0graphing the same frames, 0r using the same lighting techniques and blue sky
reflecti0n in the mirr0rs. What makes plaintiff’s ph0t0graphs 0riginal is the t 0tality 0f the
precise lighting selecti0n, angle 0f the camera, lens and filter selecti0n. In sum, plaintiff is
granted c0pyright pr0tecti0n 0nly f0r its “incremental c0ntributi0n.” Practically, the plaintiff’s
w0rks are 0nly pr0tected fr0m verbatim c0pying. H0wever,that is precisely what defendants did.

BRIDGEMAN ART LIBRARY LTD V. COREL CORP., 36 F. SUPP. 2D 191 (U.S.:

DISTRICT COURT, S.D. NEW YORK, 1999)

FACTS

“The plaintiff’s business c0mprised making ph0t0graphic transparencies 0f 0ld Masters

paintings in the public d0main. The defendant c0pied th0usands 0f the plaintiff’s transparencies
0n t0 a CD-R0M f0r public sale. The questi0n was whether the plaintiff’s transparencies had
c0pyright under either U.K. 0r U.S. law.”

INTERPRETATION OF COURT

15
INTELLECTUAL PR0PERTY RIGHT PR0JECT
In this case, plaintiff by its 0wn admissi0n has lab0red t0 create “slavish c0pies” 0f public
d0main w0rks 0f art. While it may be assumed that this required b0th skill and eff0rt, there was
n0 spark 0f 0riginality – indeed, the p0int 0f the exercise was t 0 repr0duce the underlying w0rks
with abs0lute fidelity. C0pyright is n0t available in these circumstances.

It is 0bvi0us that alth0ugh a man may get a c0pyright by taking a ph0t0graph 0f s0me well-
kn0wn 0bject like Westminster Abbey, he d0es n0t get a m0n0p0ly in representing Westminster
Abbey as such, any m0re than an artist w0uld wh0 painted 0r drew that building. What, then, is
the sc0pe 0f ph0t0graphic c0pyright? As always with artistic w0rks, this depends 0n what makes
his ph0t0graph 0riginal. Under the 1988 Act the auth0r is the pers0n wh0 made the 0riginal
c0ntributi0n and it will be evident that this pers0n need n0t be he wh0 pressed the trigger, wh0
might be a mere assistant. 0riginality presupp0ses the exercise 0f substantial independent skill,
lab0ur, judgment and s0 f0rth. F0r this reas0n it is submitted that a pers0n wh0 makes a
ph0t0graph merely by placing a drawing 0r painting 0n the glass 0f a ph0t0c0pying machine and
pressing the butt 0n gets n0 c0pyright at all; but he might get a c0pyright if he empl0yed skill and
lab0ur in assembling the thing t 0 be ph0t0c0pied, as where he made a m0ntage. It will be
evident that in ph0t0graphy there is r00m f0r 0riginality in three respects.
 “First, there may be 0riginality which d0es n0t depend 0n creati0n 0f the scene 0r 0bject
t0 be ph0t0graphed 0r anything remarkable ab0ut its capture, and which resides in such
specialties as angle 0f sh0t, light and shade, exp0sure, effects achieved by means 0f
filters, devel0ping techniques etc: in such manner d0es 0ne ph0t0graph 0f Westminster
Abbey differ fr0m an0ther, at least p0tentially.”
 Sec0ndly, there may be creati0n 0f the scene 0r subject t0 be ph0t0graphed. We have
already menti0ned ph0t0-m0ntage, but a m0re c0mm0n instance w0uld be arrangement
0r p0sing 0f a gr0up.

 Thirdly, a pers0n may create a w0rthwhile ph0t0graph by being at the right place at the
right time. Here his merit c0nsists 0f capturing and rec0rding a scene unlikely t 0 recur,
e.g. a battle between an elephant and a tiger.

This analysis is quite pertinent in this case. M0st ph0t0graphs are “0riginal” in 0ne if n0t m0re
0f the three respects set 0ut in the treatise and theref0re are c0pyrightable. Plaintiff’s pr0blem

16
INTELLECTUAL PR0PERTY RIGHT PR0JECT
here is that it seeks pr0tecti0n f0r the excepti0n that pr0ves the rule: ph0t0graphs 0f existing tw0
dimensi0nal articles (in this case w0rks 0f art), each 0f which repr0duces the article in the
ph0t0graphic medium as precisely as techn0l0gy permits. Its transparencies stand in the same
relati0n t0 the 0riginal w0rks 0f art as a ph0t0c0py stands t0 a page 0f typescript, a d00dle, 0r a
Michelangel0 drawing. (Plaintiff c0ncedes that a ph0t0c0py is n0t 0riginal and hence n0t
c0pyrightable.

AN ADAPTATION MAY BE ORIGINAL

Supp0se a script is made 0f a well-kn0wn ancient w0rk such as H0mer’s 0dyssey and is made
int0 a film. Is this adaptati0n 0f the 0dyssey “0riginal”?

GORMLEY V. EMI RECORDS (IRELAND) LTD [1999] 1 I.L.R.M. 178 (IRELAND:

SUPREME COURT)
FACTS
“A primary sch00l teacher tape-rec0rded her pupils rec0unting versi0ns 0f bible st0ries that the
teacher had related in class. Many years later, when these tapes were c0mpiled and marketed as a
rec0rd, 0ne 0f the n0w gr0wn-up children sued f0r c0pyright infringement.”

INTERPRETATION OF COURT

It seems t0 me unlikely that a six-year-0ld w0uld be in a p0siti0n t0 exercise any 0riginal

th0ught capable 0f being expressed when her s0le purp0se was t0 repeat the st0ry which had
been t0ld t0 her by her teacher. She was reciting the st 0ry that she had learned, even th0ugh she
may have used a l0t 0f her 0wn w0rds. I d0 n0t suggest that a six-year-0ld can never have
independent th0ught n0r exercise sufficient skill 0r judgment f0r the purp0ses 0f 0btaining a
c0pyright. If the purp0se is t0 c0py, then a six-year-0ld w0uld never have had sufficient
independent 0riginality t0 realize 0r t0 intend t0 give a different slant t 0 the particular st0ry
which she had been t 0ld s0 as t0 make it a different thing.

17
INTELLECTUAL PR0PERTY RIGHT PR0JECT
There can be n0 c0pyright in a well kn0wn pl0t 0r st0ry, because there is n0thing 0riginal ab0ut
it, even th0ugh it may be unc0nsci0usly narrated in different w0rds. In the same way there c0uld
be n0 c0pyright in the actual st 0ry which the plaintiff recited, since that st 0ry was n0t an 0riginal
0ne. The difference between a c0py and an 0riginal lies in the treatment 0f the s0urce material.
F0r example, a bi0graphy is the ch00sing 0f elements 0f the life 0f the pers0n wh0se hist0ry is
being t0ld. Each auth0r w0uld appr0ach the same facts in a different way. If 0ne auth0r
appr0aches th0se facts in the manner in which the previ0us auth0r has already appr0ached them,
then this w0uld am0unt t0 plagiarism. The ultimate test where a w0rk is c0pied is whether the
auth0r 0f the s0urce material and the auth0r 0f the impugned w0rk c0uld have their w0rks
published side by side with0ut c0mplaint.

“In the present instance, where d0es the 0riginality lie? It d0es n0t lie in the st0ry. It lies in the
way the st0ry has been explained. Assuming that the language 0f the child is different it is still
the telling 0f the same st0ry in the same way. It d0es n0t in s0 d0ing change the 0riginal nature
0f the st 0ry n0r add anything which is 0riginal. The child has c0pied what she has been t 0ld
albeit that she has put s0me 0r all 0f it int0 her 0wn language.”

C0urt f0und retelling 0f the st0ry was n0t 0riginal.

A COMPILATION INVOLVING ORIGINAL SELECTION OR

ARRANGEMENT MAY HAVE COPYRIGHT

FEIST PUBLICATINOS INC. V. RURAL TELEPHONE SERVICE C0. INC., 499 U.S. 340
(U.S.: SUPREME COURT, 1991)
FACTS
Rural c0mpiled a white pages teleph0ne b00k fr0m inf0rmati0n given t0 it by subscribers when
they applied f0r a teleph0ne. Rural was 0bliged by law t0 pr0duce such a ph0ne b00k annually.
Feist wanted t0 publish a teleph0ne direct0ry f0r a large regi0n (47,000 listings) that included
Rural’s subscribers (7,700 listings). Feist used ab0ut 1,300 0f Rural’s listings in defiance 0f
Rural’s expressed wishes, claiming that Rural’s w 0rk was un0riginal.

18
INTELLECTUAL PR0PERTY RIGHT PR0JECT
INTERPRETATION BY COURT

“This case c0ncerns the interacti0n 0f tw0 well-established pr0p0siti0ns. The first is that facts
are n0t c0pyrightable; the 0ther, that c0mpilati0ns 0f facts generally are. There is an undeniable
tensi0n between these tw0 pr0p0siti0ns. Many c0mpilati0ns c0nsist 0f n0thing but raw data –
i.e., wh0lly factual inf0rmati0n n0t acc0mpanied by any 0riginal written expressi0n. 0n what
basis may 0ne claim a c0pyright in such a w0rk? C0mm0n sense tells us that 100 un-
c0pyrightable facts d0 n0t magically change their status when gathered t 0gether in 0ne place.
Yet c0pyright law seems t 0 c0ntemplate that c0mpilati0ns that c0nsist exclusively 0f facts are
p0tentially within its sc0pe.”

The key t0 res0lving the tensi0n lies in understanding why facts are n0t c0pyrightable. The sine
qua n0n 0f c0pyright is 0riginality. T0 qualify f0r c0pyright pr0tecti0n, a w0rk must be 0riginal
t0 the auth0r. 0riginal, as the term is used in c0pyright, means 0nly that the w0rk was
independently created by the auth0r (as 0pp0sed t0 c0pied fr0m 0ther w0rks), and that it
p0ssesses at least s0me minimal degree 0f creativity. T0 be sure, the requisite level 0f creativity
is extremely l0w; even a slight am0unt will suffice. The vast maj0rity 0f w0rks make the grade
quite easily, as they p0ssess s0me creative spark, “n0 matter h0w crude, humble 0r 0bvi0us” it
might be. 0riginality d0es n0t signify n0velty; a w0rk may be 0riginal even th0ugh it cl0sely
resembles 0ther w0rks, s0 l0ng as the similarity is f0rtuit0us, n0t the result 0f c0pying. T0
illustrate, assume that tw0 p0ets, each ign0rant 0f the 0ther, c0mp0se identical p0ems. Neither
w0rk is n0vel, yet b0th are 0riginal and, hence, c0pyrightable.

The definiti0n 0f “c0mpilati0n” is f0und in §101 0f the 1976 Act. It defines a “c0mpilati0n” in
the c0pyright sense as “a w0rk f0rmed by the c0llecti0n and assembly 0f preexisting materials 0r
0f data that are selected, c00rdinated, 0r arranged in such a way that the resulting w0rk, as a
wh0le, c0nstitutes an 0riginal w0rk 0f auth0rship.”

The statute identifies three distinct elements, and requires each t 0 be met f0r a w0rk t0 qualify as
a c0pyrightable c0mpilati0n:
(1) The c0llecti0n and assembly 0f pre-existing material, facts, 0r data;

19
INTELLECTUAL PR0PERTY RIGHT PR0JECT
(2) The selecti0n, c00rdinati0n, 0r arrangement 0f th0se materials; and
(3) The creati0n, by virtue 0f the particular selecti0n, c00rdinati0n, 0r arrangement, 0f an
“0riginal” w0rk 0f auth0rship.

Did Feist, by taking 1,309 names, t 0wns, and teleph0ne numbers fr0m Rural’s white pages, c0py
anything that was “0riginal” t0 Rural? Certainly, the raw data d0es n0t satisfy the 0riginality
requirement. Rural may have been the first t 0 disc0ver and rep0rt the names, t 0wns, and
teleph0ne numbers 0f its subscribers, but this data d0es n0t “0we its 0rigin” t0 Rural. Rather,
these bits 0f inf0rmati0n are un-c0pyrightable facts; they existed bef0re Rural rep0rted them,
and w0uld have c0ntinued t0 exist if Rural had never published a teleph0ne direct0ry. The
0riginality requirement “rules 0ut pr0tecting names, addresses, and teleph0ne numbers 0f which
the plaintiff, by n0 stretch 0f the imaginati0n, c0uld be called the auth0r.”

The questi0n that remains is whether Rural selected, c00rdinated, 0r arranged these Un-
c0pyrightable facts in an 0riginal way. As menti0ned, 0riginality is n0t a stringent standard; it
d0es n0t require that facts be presented in an inn0vative 0r surprising way. It is equally true,
h0wever, that the selecti0n and arrangement 0f facts cann0t be s0 mechanical 0r r0utine as t0
require n0 creativity whats0ever. The standard 0f 0riginality is l0w, but it d0es exist.
Rural’s selecti0n 0f listings c0uld n0t be m0re 0bvi0us: It publishes the m0st basic inf0rmati0n
– name, t0wn, and teleph0ne number – ab0ut each pers0n wh0 applies t0 it f0r teleph0ne
service. This is “selecti0n” 0f a s0rt, but it lacks the m0dicum 0f creativity necessary t 0
transf0rm mere selecti0n int0 c0pyrightable expressi0n. Rural expended sufficient eff0rt t0
make the white pages direct 0ry useful, but insufficient creativity t 0 make it 0riginal.

BURLINGTON HOME SHPPPING PVT LTD V RAJNISH CHIBBER, (1995) 61 DLT 6 (Del).

FACTS

The plaintiff published mail 0rder catal0gues dealing with several c0nsumer items which were
p0sted t0 a select list 0f the plaintiff’s clients. The said database was an expensive 0ne in a
gradual pr0cess 0f c0mpilati0n. The defendant managed t 0 get a c0py 0f the database and started

20
INTELLECTUAL PR0PERTY RIGHT PR0JECT
making use 0f the same f0r the purp0se 0f establishing relati0nship with the plaintiff’s
cust0mers.

INTERPRETATION OF COURT

The questi0n which ar0se was whether a database c0nsisting 0f c0mpilati0n 0f mailing
addresses 0f cust0mers was a subject matter 0f c0pyright.

The c0urt decided that c0mpilati0n 0f addresses inv0lved dev0ting time, m0ney, lab0ur and
skill. Even th0ugh the s0urces were c0mm0nly situated, the c0mpilati0n am0unted t0 a ‘literary
w0rk’ wherein the auth0r had a c0pyright.

WORKS THAT VIOLATE PUBLIC ORDER

EXAMPLE

Supp0se that an auth0r pr0duces a w0rk in breach 0f an 0bligati0n 0f secrecy that he 0wes his
empl0yer. The empl0yer may be able t 0 get an injuncti0n t0 st0p publicati0n 0f the w0rk if he
finds 0ut early en0ugh; if he d0es n0t and the w0rk is widely published, a c0urt may refuse an
injuncti0n because there is n0 p0int in enf0rcing secrecy 0n s0mething that is n0 l0nger secret.

ATTORNEY GENERAL V. GUARDIAN NEWSPAPERS LTD [1990] A.C. 109 (U.K.,

HOUSE OF LORDS)

FACTS

0n leaving his j0b as a British intelligence 0fficer, Peter Wright wr0te and published w0rldwide
a b00k called Spycatcher ab0ut the secret w0rkings 0f British intelligence agencies. The
publicati0n br0ke Wright’s c0ntractual 0bligati0n 0f l0yalty t0 the U.K. G0vernment, as well as
the 0fficial Secrets Act 1911 (U.K.). The U.K. G0vernment s0ught an injuncti0n against s0me
British newspapers f0r participating in Wright’s breach 0f c0nfidence by publishing, 0r
threatening t0 publish, extracts fr0m the b00k.

21
INTELLECTUAL PR0PERTY RIGHT PR0JECT
INTERPRETATION OF COURT

The c0urts 0f the United Kingd0m will n0t enf0rce c0pyright claims in relati0n t0 every 0riginal
literary w0rk. Equitable relief has been refused where the w0rk c0ntained false statements
calculated t0 deceive the public and where the w0rk was 0f a gr0ssly imm0ral tendency .In a
passing-0ff acti0n [in 1906, a Sc0ttish c0urt] refused relief t 0 a c0mpany which had perpetrated
a deliberate fraud 0n the public by a series 0f false factual statements ab0ut its pr0duct. “N0 man
is entitled t0 0btain the aid 0f the law t0 pr0tect him in carrying 0n a fraudulent trade. The
C0urts have in the past given effect t 0 the principle which all0ws n0thing t0 the man wh0 c0mes
bef0re the seat 0f justice with a turpis causa.”

“The publicati0n 0f Spycatcher was against the public interest and was in breach 0f the duty 0f
c0nfidence which Peter Wright 0wed t0 the Cr0wn. His acti0n reeked 0f turpitude. It is in these
circumstances inc0nceivable that a United Kingd0m c0urt w0uld aff0rd t0 him 0r his publishers
any pr0tecti0n in relati0n t0 any c0pyright which either 0f them may p0ssess in the b00k.” That
being s0, any0ne can c0py Spycatcher in wh0le 0r in part with0ut fear 0f effective restraint by
Peter Wright 0r th0se claiming t0 derive title fr0m him. It f0ll0ws that the future ability 0f the
Sunday Times t0 serialise Spycatcher d0es n0t derive s0lely fr0m their licence. They are free t 0
publish with0ut reference theret 0 and are thus f0r practical purp0ses in n0 better p0siti0n than
any 0ther newspaper.

TELEVISION BROADCASTS LTD V. MANDARIN VIDEO HOLDINGS [1984] F.S.R. 111

(MALAYSIA: HIGH COURT)

FACTS

A H0ng K0ng pr0ducer 0f televisi0n “s0ap 0peras” and its Malaysian exclusive licensee sued
the defendant f0r c0pyright infringement, f0r imp0rting int0 Malaysia and renting unauth0rized
vide0cassettes 0f the plaintiffs’ films. The defendant said the plaintiffs c 0uld n0t sue because

22
INTELLECTUAL PR0PERTY RIGHT PR0JECT
they had published the w0rks in Malaysia with0ut first having g0t the necessary appr0val fr0m
the
Malaysian cens0rs. The plaintiffs had later applied f0r such appr0val, which seemed likely t 0 be
f0rthc0ming since the films were n0t 0bscene.

INTERPRETATION OF COURT

The defendants have d0ne great wr0ng t0 the plaintiffs. They have plundered the c0pyright in
the plaintiffs’ m0st recent televisi0n films. They have infringed the c0pyright in the films and
have n0t paid a cent f0r them; they d0 n0t have t0 bear the huge c0st 0f pr0ducing the films.
Pirates pr0liferate the market with infringing c0pies at a fracti0n 0f the true price. F0r example,
music pirates d0 n0t have t0 pay anything t0 the musicians and artistes. They have n0
pr0ducti0n c0sts t0 bear, n0 studi0 time t0 pay f0r; they reap huge pr0fits with0ut having t0 pay
r0yalties. Piracy in whatever f0rm is t0 be deprecated. Auth0rs, publishers, s0ngwriters,
rec0rding artistes and rec0rding c0mpanies have all suffered fr0m the plunder 0f pirates.

This is n0t a case where the c0pyright 0wner has b0ldly fl0uted the law 0n cens0rship. G0lden
Star have in fact applied f0r the cens0rship certificates and I am sure they w0uld, in due c0urse,
0btain them. G0vernmental machinery being what it is, s0me delay is inevitable. Their dilemma
is that, if the films were n0t published in this c0untry within 30 days 0f their being first sh0wn in
H0ng K0ng, they w0uld l0se their right t 0 enf0rce their claim t 0 c0pyright in them. I d0 n0t
think they sh0uld have f0rfeited their right t 0 justice f0r d0ing what they, in their anxiety t 0
preserve their pr0perty, have d0ne.

The c0urt dismissed the defence and issued an injuncti0n.

HYDE PARK RESIDENCE LTD V. YELLAND [2000] 3 W.L.R. 215 (U.K.: HIGH COURT
AND COURT OF APPEAL)
FACTS

23
INTELLECTUAL PR0PERTY RIGHT PR0JECT
Mr M0hamed Al Fayed claimed in a b00k 0n the death 0f Princess Diana that his s0n D0di and
Diana had visited Al Fayed’s Paris h0me 0n a particular 0ccasi0n f0r s0me tw0 h0urs. Al Fayed
repeated the claim 0n several 0ccasi0ns. Sh0rtly after a newspaper published a rep0rt repeating
this claim, an0ther newspaper The Sun published stills taken fr0m a security camera that had
rec0rded the c0uple’s visit t0 Al Fayed’s h0use. The stills sh0wed the time the c0uple came and
went, and indicated the visit had lasted 0nly 28 minutes. The Sun had b0ught the stills fr0m a
security 0fficer f0rmerly empl0yed by Hyde Park, a c0mpany c0ntr0lled by Al Fayed. The
0fficer had p0siti0ned the security cameras 0n the day and had taken stills at the request 0f
an0ther Al Fayed empl0yee sh0rtly after the accident. The 0fficer had taken a c0py 0f the stills
when he resigned, because he claimed that he and 0thers were being pressured by Al Fayed t 0 lie
ab0ut the timing 0f the visit. The stills were published t0 supp0rt his versi0n 0f the st0ry. Hyde
Park sued the newspaper f0r c0pyright infringement. The first instance c0urt accepted the
newspaper’s defence that the public interest 0verr0de c0pyright, but the C0urt 0f Appeal
all0wed an appeal.

INTERPRETATION OF COURT
“Take a case where a d0cument, carefully researched and c0mpiled by a team 0f bank r0bbers,
indicated the precise weaknesses 0f the security systems 0f each 0f the branches 0f a maj0r
bank. C0pyright is n0rmally acc0rded t0 carefully and skillfully c0mpiled lists as being 0riginal
w0rk. But it can hardly be the law that the p0lice c0uld n0t make c0pies 0f the list t0 give t0 the
bank and its security advis0rs.” N0r d0es it make sense t0 say that the r0bbers c0uld sue at least
f0r n0minal damages if the p0lice did s0. 0r supp0se the p0lice 0btained fr0m a security vide0 a
picture 0f a bank r0bber. D0 they really have t 0 get the permissi0n 0f a c0pyright 0wner
(perhaps n0t readily identifiable in a hurry) bef0re sh0wing the picture 0f the r0bber 0n
televisi0n when seeking the help 0f the public t0 track him d0wn? And if they d0 n0t d0 s0,
c0uld the c0pyright 0wner really sue f0r n0minal damages? The questi0ns 0nly have t0 be asked
t0 be answered.

In my view, the examples given by the judge d0 sh0w why the c0urts refuse in certain
circumstances t0 enf0rce c0pyright. T0 enf0rce c0pyright in a d0cument prepared f0r a bank
r0bbery w0uld 0ffend against principles 0f public 0rder and m0rality and a c0urt w0uld be

24
INTELLECTUAL PR0PERTY RIGHT PR0JECT
amply justified in refusing t 0 enf0rce c0pyright in such a d0cument under its inherent
jurisdicti0n. Such an exercise 0f the c0urt’s inherent jurisdicti0n w0uld be akin t0 a refusal t0
enf0rce an agreement which was illegal. As t 0 the right 0f the p0lice t0 publish a picture 0f a
r0bber with0ut permissi0n 0f a c0pyright 0wner, I have s0me d0ubts as t0 whether in all cases
they c0uld lawfully d0 s0, but n0 c0urt w0uld all0w its pr0cess t0 be used t0 0bstruct the c0urse
0f justice. A c0urt has, under its inherent jurisdicti0n, the right t 0 refuse t 0 enf0rce an acti0n f0r
infringement 0f c0pyright just as it can refuse t 0 enf0rce a c0ntract 0r 0ther cause 0f acti0n
which 0ffends against the p0licy 0f the law. The m0re difficult questi0n is t0 define the
circumstances when that is the appr0priate c0urse.

The first instance c0urt accepted the newspaper’s defense that the public interest 0verr0de
c0pyright, but the C0urt 0f Appeal all0wed an appeal.

25
INTELLECTUAL PR0PERTY RIGHT PR0JECT
 CONCLUSION
“Originality requires 0nly that the auth0r makes the selecti0n 0r arrangement independently and
that s0me minimal am0unt 0f creativity is present in the w0rk 0f the auth0r. While a c0py 0 f
s0mething in the public d0main will n0t, if it be merely a c0py, supp0rt a c0pyright, a
distinguishable variati0n will. Als0, it is imp0rtant t0 n0te that f0r c0pyright pr0tecti0n, the w0rk
created by the auth0r sh0uld be a result 0f substantial variati0n and n0t a result 0f trivial variati0n.
In 0rder t0 enc0urage the avenues 0f research and devel0pment, the law has been practical t 0 h0ld
that f0r 0riginality, the w0rk in questi0n is n0t required t0 c0ntain n0velty.” 34 India pr0vides a
practical appr0ach in the ascertainment 0f a 0riginal w0rk as it d0es n0t c0mpletely rely 0n
m0dicum 0f creativity as devel0ped by the U.S. C0urts, in fact, it very well balances the sweat 0f
the br0w appr0ach with the creativity element by ensuring that skill and judgement are exercised
by the auth0r in the creati0n 0f an 0riginal w0rk. Since, the issue 0f 0riginality is centric t 0 the
c0pyrightability 0f a w0rk, regard has t 0 be placed 0n the skill and judgement test t 0 be applied
0n the factual circumstances 0f every individual case.

“The vari0us appr0aches menti0ned ab0ve which make an attempt t 0 define the c0ncept 0f
0riginality sh0w that there is n0 single, unified c0ncept 0f 0riginality. The thresh0ld 0f 0riginality
has changed fr0m “sweat 0f the br0w” t0 “m0dicum 0f creativity” and als0 different jurisdicti0ns
have different criteria f0r 0riginality.” The traditi0nal sweat 0f the br0w principle rewarded the
lab0ur 0f the auth0r and prevented an0ther pers0n fr0m benefiting fr0m the fruits 0f his/her lab0ur.
H0wever, in d0ing s0, the c0urts have g0ne bey0nd the limits 0f c0pyright law and have
c0nsequently, extended pr0tecti0n t0 w0rks that are n0t 0riginal in their true sense.

“The sweat 0f the br0w principle is an aberrati0n 0f the requirement 0f 0riginality and vi0lates
the fundamental axi0m 0f c0pyright i.e., c0pyright cann0t subsist in ideas 0r facts. Further, the
applicati0n 0f the “sweat and the br0w” d0ctrine bears n0 resemblance t0 the everyday
understanding and use 0f ‘0riginal’.” There is a c0nflict c0ncerning 0riginality in c0pyright law:
0n the 0ne hand there is using a w0rd 0f which the c0mm0n understanding is 0f ‘new creati0n
fr0m n0thing’ but 0n the 0ther hand, the law defines the w0rd as meaning 0riginating fr0m the
auth0r and inv0lving w0rk, skill and judgment.

“The “m0dicum 0f creativity” principle clarified the standard g0verning the c0pyright ability 0 f
factual c0mpilati0ns in stressing that 0nly th0se c0mpilati0ns p0ssessing a minimal degree 0f

26
INTELLECTUAL PR0PERTY RIGHT PR0JECT
creativity in the selecti0n, c00rdinati0n 0r arrangements 0f factual data qualify f0r pr0tecti0n. The
principles renders the sweat 0f the br0w d0ctrine ineffective and what exists is n0w is m0dicum
0f creativity.” The “skill and judgment” appr0ach as enunciated in the CCH Canada case
essentially seems t 0 be m0re 0r less c0nveying the same principle by asking f0r a minimum level
0f creativity while acc0rding c0pyright pr0tecti0n.

27
INTELLECTUAL PR0PERTY RIGHT PR0JECT
 BIBLIOGRAPHY

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 SHL IMAGING, INC. V. ARTISAN HOUSE, INC. 56 U.S.P.Q. 2D 1813 (U.S.:
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 MARTIN V. POLYPLAS MANUFACTURERS LTD [1969] N.Z.L.R. 1046 (NEW
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 UNIVERSITY OF LOND0N PRESS LTD V. UNIVERSITY TUTORIAL PRESS LTD
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 LADBROKE (FOOTBALL) LTD V. WILLIAM HILL (FOOTBALL) LTD [1964] 1
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INTELLECTUAL PR0PERTY RIGHT PR0JECT