DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW

Intellectual Property Rights

FINAL DRAFT
TOPIC –CONCEPT OF ORIGINALITY UNDER COPYRIGHT LAW

Submitted for the project work undertaken in the partial fulfillment of B.A. LL.B
(Hons.) 5 years integrated course of Dr. Ram Manohar Lohiya National Law
University, Lucknow.

SUBMITTED TO: SUBMITTED BY:

Dr. Vikas Bhati Vishal Kumar Arya

ASSISTANT PROFESSOR (Law) B.A. LL.B. (Hons.)

DR. RMLNLU, LUCKNOW SEMESTER VII

(En. No. 170101163)

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 Table Of Contents

Acknowledgments…………………………………………………………………………… 2

Objectives and Research Methodology……………………………………………………... 3

Chapter 1: Introduction………………………………………………..……………………. 4

Chapter 2: What is meant by originality?

- Sweat of the Brow Test

- Modicum of Creativity Test
- Skill and Judgement Test

Conclusion…………………………………………………………………………………. 15

Bibliography…………………………………………………………………………………16

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Research Objectives

- To understand the concept of originality under Copyright Law.

- To discuss with the help of the cases that when a work is said to be original.

- To understand the doctrine of Sweat of the Brow.

- To understand the concept of skill and Judgement for originality with the help cases.

Research Methodology

Non empirical research work has been used in this project as the material in this project mainly
consists of the work of people which is already done. Some potions of that work are referred in
this project and citations are also provided wherever they were necessary.

1. Sources of data- The following secondary sources of data have been used in the project-

1. Articles.
2. Journals
3. Websites

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Chapter-1:

Introduction

Copyright refers to the legal right of the owner of intellectual property. In simpler terms,
copyright is the right to copy. This means that the original creator of a product and anyone he
gives authorization to are the only ones with the exclusive right to reproduce the work. Copyright
law gives creators of original material, the exclusive right to further develop them for a given
amount of time, at which point the copyrighted item becomes public domain.

When someone creates a product that is viewed as original and that required significant mental
activity to create, this product becomes intellectual property that must be protected from
unauthorized duplication. Examples of unique creations include computer software, art, poetry,
graphic designs, musical lyrics and compositions, novels, film, original architectural designs,
website content, etc. One safeguard that can be used to protect an original creation is copyright.

Under copyright law, a work is considered original if the author created it from independent
thinking void of duplication. This type of work is known as Original Work of Authorship
(OWA). Anyone with an original work of authorship automatically has the copyright to
that work, preventing anyone else from using or replicating it. The copyright can be
registered voluntarily by the original owner if he or she would like to get an upper hand in the
legal system if the need arises.

Under section 13 of India’s Copyright Act, 1957, copyright can subsist only in “original”
literary, dramatic, musical and artistic works. The act does not define “original” or
“originality” and what these concepts entail has been the subject-matter of judicial
interpretations in India and various other jurisdictions.

As copyright law protects only the expression of an idea, and not the idea itself, the “work” must
originate from the author and the idea need not necessarily be new. Views diverge with respect
to two important doctrines pertaining to how originality accrues in any copyrighted work: the

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“sweat of the brow” doctrine and the “modicum of creativity” doctrine. These are the two tests
on each end of the debate for ascertaining “originality”.

Originality in copyright works is the sine qua non of all the copyright regimes of the world. The
common conception of the meaning of ‘original’ is something that is new, not done before.
Originality is the aspect of created or invented works by as being new or novel, and thus can be
distinguished from reproductions, clones, forgeries, or derivative works. It is a work created with
a unique style and substance.

The term "originality" is often applied as a compliment to the creativity of artists, writers,
and thinkers. In United Kingdom, s.(1)(1)(a) of the Copyright, Designs and Patents Act
1988 states that copyright subsists in “original literary, dramatic, musical or artistic
works.” However, the Act does not state what ‘original’ means. In law, more stress is laid on
how an idea had been expressed1. There is no definite and single, unified concept of “originality”
and there have been different doctrines which have tried to define the concept. These different
doctrines have been discussed in this project.

1 Copyright http://www.investopedia.com/terms/c/copyright.asp#ixzz4wOeBrvqV

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 Chapter- 2

What is meant by originality?

The word ‘original’ does not mean that the work must be the expression of original and inventive
thought. Originality with respect to the expression of the thought does not require novelty of the
expression. The Act only requires that the work should not be copied from another work. This
means that the work should originate solely from the author. Though this seems difficult to
comprehend, several judicial decisions have laid down the parameters of what would be deemed
to be original, especially with regard to literary works.

Originality is an important legal concept with respect to copyright. Originality is the aspect of a
created or invented work that makes it new or novel, and thereby distinguishes it from
reproductions, clones, forgeries, or derivative works. In this regard, an original work stands out
because it was not copied from the work of others.

There is no objective minimum amount of content required for a work to be included within the
scope of copyright. The Copyright Act defines only two requirements for copyrightability:
original authorship (“originality”) and fixation. “Original” means a work created through the
“fruits of intellectual labor.” “Originality” therefore requires not only that the author has not
copied the work from another, but also that there is “at least some minimal degree of creativity.”

“Originality” is a constitutional requirement for copyright applicability even though it was first
stated explicitly by statute only with the introduction of the 1976 Copyright Act.

“The sine qua non of copyright is originality.”2

Originality is a precondition to copyright protection. If the work of a person is not original but a
mere copy of someone else`s original work then copyright protection cannot be granted to such a
person. Thus, for a work to be original it is important that it should not have been copied from
another work. Protection of copyright in a work is necessary for the purpose of protecting a

2 Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991)

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person's creative expression and to encourage creative expression. Copyright protection should
be a form of reward for a person seeking protection of his original work.3

For a work to be protected under the copyright law, it is imperative to ensure that such is an
original work and is not copied from any other work of any other person. Such a right is granted
in relation to original works since one has the right of protection over the work completed
through one`s own efforts. It is important to note that with regard to R.G. Anand v. Delux Films
& Others4 there can be no copyright in an idea or subject matter but only in the arrangement and
expression of such idea. It is not even necessary that the work involve novel expression of a
thought. All that is required for originality of expression is that the expression should not be
copied from another work. Thus the work should be composed by the author independently.5

It is currently unclear what standard of originality is followed in India, as Indian courts have not
made any clear pronouncements on the concept of originality.6 Through judicial
pronouncements, the following tests of originality have been developed:

1. Sweat of the Brow Test

2. Modicum of Creativity Test

3. Skill and Judgement Test

3 Krishna Hariani & Anirudh Hariani, Analyzing “Originality” in Copyright Law : Transcending Jurisdictional Disparity, 51
IDEA, 491 (2011).
4 R.G. Anand v. Delux Films & Others , AIR 1978 SC 1613
5 Supra n. 2 493
6 Ranjit Kumar, Database Protection: The European Way and the Impact on India, 45 IDEA

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Sweat of the Brow Test

This test was originally propounded in University London Press v. University Tutorial
Press7which conferred copyrights on work merely because time, energy, skill and labour were
expended (ie, originality of skill and labour).8 The Privy Council had approved this principle in
the case of Macmillan & Company Ltd. v. Cooper, 9 wherein it was held that the product of the
labour, skill and capital of one man which must not be appropriated by another. This approach
developed in U.K. and had been followed by the Indian Courts before the test of ‘modicum of
creativity’ came into scene. The approach of the courts as above is often referred to as the “sweat
of the brow” doctrine where more importance is given as to how much labour and diligence it
took to create a work, rather than how original a work is.10 This approach was observed in the
case of Burlington Home Shopping v Rajnish Chibber.11

In Kartar Singh Giani v. Ladha Singh, the Supreme Court of India, following the approach of
English Courts, observed that copyright law does not prevent a person from taking what is useful
from an original work with additions and improvements. In many subsequent decisions also, the
Supreme Court and the High Courts have laid emphasis on involvement of labour, skill and
judgment while granting copyright protection.

Later, the Madras High Court, in C. Cunniah & Co. v. Balraj & Co., recognized that the
subject dealt with need not be original, nor the ideas expressed to be novel. In Mishra Bandhu
v. Shivratan, the court held neither original thought nor original research are necessary for
claiming copyright and even compilations such as dictionaries, gazettes, maps, arithmetic,
almanacs, encyclopedias etc. are capable of having copyright. The approach of the courts as
above is often referred to as the “sweat of the brow” doctrine where more importance is given as
to how much labour and diligence it took to create a work, rather than how original a work is.
Most common law jurisdictions such as has United Kingdom, Canada, Australia have recognized
this doctrine as various times.

7 University London Press v. University Tutorial Press, [1916] 2 Ch 601

8 BEN ALLGROVE, INTERNATIONAL COPYRIGHT LAW: A PRACTICAL GLOBAL GUIDE (2013)
9 Macmillan & Company Ltd. v. Cooper, (1924) 26 BOMLR 292
10 Mini Gautam, Originality Under Copyright Law Is There Any Definite Standard?

http://www.legalservicesindia.com/article/article/originality-under-copyright-law-is-there-any-definite-standard- 970-1.html (last

updated June 1, 2015)
11 Burlington Home Shopping v Rajnish Chibber, 61 (1995) DLT 6

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Modicum of Creativity

This approach was developed by the U.S. Courts through the case of Feist Publications Inc. v.
Rural Telephone Service Co.12 It acknowledges that not every effort or industry, or expending
of skill, results in copyrightable work, but only those activities which create works that are
somewhat different in character, involve some intellectual effort, and involve a certain degree of
creativity.

According to this test, for a work to be original and copyrightable, it should contain a ‘minimal
degree of creativity’. Earlier the Courts in India followed the ‘sweat of the brow’ test, however
the approach of the Court changed after the introduction of modicum of creativity test. The focus
of this approach was on the creativity rendered to the work of a person for it to be considered
original. Eventually, the need of balancing the efforts and creative element in a work was
realised for it to be rendered as original.

Skill and Judgement Test

This test provides for the Indian approach to determine whether the ‘work’ in question is
‘original work’ or not. In order to ascertain this, the author should have applied his ‘skill and
judgement’ in creating the work and such work created should have the minimal element of
creativity thereby leading the work to be original. Thus, it is observed that India adopts a middle
path between the two extreme approaches i.e. the U.K. approach (sweat of the brow doctrine)
and U.S. approach (modicum of creativity). In the case of Eastern Book Company and Others
v. D.B. Modak & Anr.13, the Delhi High Court, while considering the question of whether the
head notes of reported cases constituted original expression, referred expressly to the Feist
decision, and adopted a "modicum of creativity" standard, along with the standard of skill and
labor. In this case the copyright over copy-edited judgments was discussed. This case is
important since a shift in the approach of the Supreme Court in deciding the copyright of
‘original work’ took place.

12 Supra n. 1
13 Eastern Book Company and Others v. D.B. Modak & Anr., AIR 2008 SC 809

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The ‘sweat of the brow’ doctrine was rejected by the Court which relied on the U.S. approach of
‘modicum of creativity’ in ascertaining whether the work in question was original or not for the
purpose of valid copyright being granted to such work. In this case, the Supreme Court Case
reporter, was aggrieved by other parties infringing their copyright and launching software
containing the judgements edited by SCC along with other additions made by the editors of SCC
like cross references, head notes, the short notes comprising of lead words and the long note
which comprises of a brief description of the facts and relevant extract from the judgments of the
court and standardisation and formatting of text, etc.14 The question raised before the Court was
whether the work of law reporters infringes the copyright of the judgements delivered by Courts
in India. The Court majorly relied on the ‘skill and judgement’ test as formulated by Supreme
Court of Canada in the matter of CCH Canadian v. Law Society of Upper Canada15 and
observed as follows:

“to be original under the Copyright Act the work must originate from an author, not be copied
from another work, and must be the product of an author's exercise of skill and judgment. The
exercise of skill and judgment required to produce the work must not be so trivial that it could be
characterized as a purely mechanical exercise. Creative works by definition are original and are
protected by copyright, but creativity is not required in order to render a work original. The
original work should be the product of an exercise of skill and judgment and it is a workable yet
fair standard.”

The Court preferred a higher threshold than the doctrine of “sweat of the brow” but not as high
as “modicum of creativity”. The Canadian standard of copyright is based on skill and judgment
and not merely labour. Precondition to copyright is that work must be produced independently
and not copied from another person.16 Thus, in order to establish a valid copyright, it becomes
essential that the work should firstly be an independent work of the author and should not be
merely copied from any other source. Such work is to be created by the exercise of skill and
judgement of the author. Also, such exercise of efforts on the part of the author should not be
trivial in nature and thus should not be a mere exercise of the mechanical function of copying the

14 Shuchi Mehta, An Analysis of the Doctrines: ‘Sweat Of The Brow’ & ‘Modicum Of Creativity’ Vis À Vis Originality in
Copyright Law http://www.indialaw.in/766/ (last updated June 1, 2015)
15 CCH Canadian v. Law Society of Upper Canada, 2004 (1) SCR 339 (Canada)
16 Hailshree Saksena, Doctrine of “Sweat of the Brow”, (May 3, 2009) http://ssrn.com/abstract=1398303

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work of another. Variation must be substantial in nature than merely trivial thus requirement of
degree of originality is quantitative in nature.

According to this midway standard, an ‘original’ must be a “product of an exercise of skill and
judgment”, where ‘skill’ is “the use of one's knowledge, developed aptitude or practised ability
in producing the work” and ‘judgment’ is “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”.17
It was thus finally held that, “collection of material and addition of inputs in the raw text does
not give work a flavour of minimum requirement of creativity, as skill and Judgment required to
produce the work trivial. To establish copyright, the creativity standard applied is not that
something must be novel or non-obvious, but some amount of creativity in the work to claim a
copyright is required.”18

In the present case, publication of the work of Eastern Book Company in the form law report
‘Supreme Court Cases’ required effective and substantial skill and exercise of judgement of the
part of the law reporter while providing for paragraph numbering, internal referencing, brief
descriptions, formatting, head noting etc. and thus such work was not trivial and mechanical in
nature. Through such work of the law reporter, a minimal element of creativity in the form of a
novel work can be established, thus such Eastern Book Company was held to have the copyright
of their work. Through the skill and judgement test, major shift was observed in the approach of
Courts in India from ‘sweat of the brow’ to ‘modicum of creativity’.

This position was steered by the landmark Eastern Book Company case which paved the way for
a positive development in the sphere of determining the originality of a work by the Courts. A
recent case was decided by the Delhi High Court on September 29, 2014 (Tech Plus Media Pvt.
Ltd. v. Jyoti Janda & Ors), wherein the copyright of databases was discussed. Earlier in the case
of Burlington Home Shopping v. Rajnish Chibber , it was held that a compilation may be

17 Adarsh Ramanujan, Prateek Bhattacharya & Esheetaa Gupta, Infringement Analysis in Copyright Law, (2011)
http://www.lakshmisri.com/Uploads/MediaTypes/Documents/WHITE_PAPER_IP_Infringement_Analysis_Esh
eeta_REVISED.pdf
18 Himanshu Sharma, India: Sweat Of The Brow: An Approach In Contrast To Minimum Creativity

http://www.mondaq.com/india/x/272382/Copyright/Sweat Of The Brow An Approach In Contrast To Minimum Creativity (last

updated June 1, 2015)

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considered a copyrightable work by virtue of the fact that there was devotion of time, labour and
skill in creating the said compilation.19

Also, in the case of Diljit Titus v. Mr. Alfred A. Adebare20, customer lists merely stored on the
computer was recognised as a compilation protectable under Copyright Law. In the present case,
the Court refused to recognize the copyright of the plaintiff`s in its client list and database. The
work of the defendant, though based on the primary work (client list and database) of the
plaintiff, was a development rendered through skill and judgment of the defendant and such skill
and development was not involved in the compilation of the work of the plaintiff. Also, the
databases were merely a collection of names and e-mail addresses of the visitors to the Plaintiff’s
website and thus could not be afforded copyright as they did not fell in any category of work as
stipulated by Section 13 of the Copyright Act, 1957.21 This approach of the Court was observed
while relying upon the Eastern Book Company case wherein certain skill and judgement needs to
be proved for a valid copyright and it constituted a higher test of originality for copyright in
compilations in India.

It is important to note that deviation from the earlier ‘sweat of the brow’ doctrine in respect of
copyright of databases has taken place through this case. The ratio of the Supreme Court in
Eastern Book Company case has also been followed by the Division Bench of Delhi High Court
in Syndicate of Press of the University of Cambridge on behalf of the Chancellor Masters and
School v. B.D. Bhandari & Anr.22, wherein the requirement of skill and judgement of the
author along with the minimal standard of creativity was held essential to establish a copyright.
Further it is important to note the case of Dr. Reckeweg and Co. Gmbh. and Anr. Vs.Adven
Biotech Pvt. Ltd.23 , wherein the contention of the plaintiff was rejected as their work was held
to be mere compilation and in this case Delhi High court completely rejected the phenomena of
the doctrine of sweat of the brow. Reliance was placed on the Eastern Book Company case while
delivering the judgment.

19 V. Lakshikumaran, India and Databases under Copyright Law http://www.managingip.com/Article/3396027/India-Originality-

and-databases-under-the-copyright-law.html (last updated June 1, 2015)
20 Diljit Titus v. Mr. Alfred A. Adebare, 130 (2006) DLT 330
21 Sabia Tramboo, Higher Test for Originality for Copyright in Compilations in India http://ipfrontline.com/2014/12/higher-test-

for-originality-for-copyright-in-compilations-in-india/ (last updated June 1, 2015)

22 Syndicate of Press of the University of Cambridge on behalf of the Chancellor Masters and School v. B.D. Bhandari & Anr.,

2011 (185) DLT 346

23 Dr. Reckeweg and Co. Gmbh. and Anr. Vs.Adven Biotech Pvt. Ltd., 2008 (38) PTC 308

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In the case of The Chancellor Masters and Scholars of The University of v. Narendra
Publishing House and Ors.,24 The question before the Court was whether guide books,
comprising of the answers of mathematical questions provided in the plaintiff`s book, published
by the defendant would constitute copyright infringement. The Court while applying the test of
originality as held in EBC case, held that such publication of guide books would not constitute
copyright infringement. Summing up the Indian approach to test the originality of a work, the
Delhi HC held in a recent case “not every effort or industry, or expending of skill, results in
copyrightable work, but only those which create works that are somewhat different in character,
involve some intellectual effort, and involve a certain degree of creativity”25

24The Chancellor Masters and Scholars of The University of Oxford v. Narendra Publishing House and Ors., 2008 (106) DRJ
482
25
Emergent Genetics India Pvt. Ltd. v. Shailendra Shivam and Others, 2011 (47) PTC 494 (Del)

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 CONCLUSION

Originality requires only that the author makes the selection or arrangement independently and
that some minimal amount of creativity is present in the work of the author. While a copy of
something in the public domain will not, if it be merely a copy, support a copyright, a
distinguishable variation will. Also, it is important to note that for copyright protection, the work
created by the author should be a result of substantial variation and not a result of trivial
variation. In order to encourage the avenues of research and development, the law has been
practical to hold that for originality, the work in question is not required to contain novelty. 34
India provides a practical approach in the ascertainment of a original work as it does not
completely rely on modicum of creativity as developed by the U.S. Courts, in fact, it very well
balances the sweat of the brow approach with the creativity element by ensuring that skill and
judgement are exercised by the author in the creation of an original work. Since, the issue of
originality is centric to the copyrightability of a work, regard has to be placed on the skill and
judgement test to be applied on the factual circumstaces of every individual case.

The various approaches mentioned above which make an attempt to define the concept of originality
show that there is no single, unified concept of originality. The threshold of originality has changed from
“sweat of the brow” to “modicum of creativity” and also different jurisdictions have different criteria for
originality. The traditional sweat of the brow principle rewarded the labour of the author and prevented
another person from benefiting from the fruits of his/her labour. However, in doing so, the courts have
gone beyond the limits of copyright law and have consequently, extended protection to works that are not
original in their true sense.

The sweat of the brow principle is an aberration of the requirement of originality and violates the
fundamental axiom of copyright i.e., copyright cannot subsist in ideas or facts. Further, the application of
the “sweat and the brow” doctrine bears no resemblance to the everyday understanding and use of
‘original’. There is a conflict concerning originality in copyright law: on the one hand there is using a
word of which the common understanding is of ‘new creation from nothing’ but on the other hand, the
law defines the word as meaning originating from the author and involving work, skill and judgment.

The “modicum of creativity” principle clarified the standard governing the copyright ability of factual
compilations in stressing that only those compilations possessing a minimal degree of creativity in the
selection, coordination or arrangements of factual data qualify for protection. The principles renders the

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sweat of the brow doctrine ineffective and what exists is now is modicum of creativity. The “skill and
judgment” approach as enunciated in the CCH Canada case essentially seems to be more or less
conveying the same principle by asking for a minimum level of creativity while according copyright
protection.

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 Bibliography

1. P. Narayanan, Intellectual Property Law, Eastern Law House

2. V.K. Ahuja, Law Relating to Intellectual Property Rights, LexisNexis

Reference-

• www.investopedia.com
• www.legalservicesindia.com/article/article/originality-under-copyright-law-is-there-any-definite-
standard-970-1
• www.mondaq.com
• www.vantageasia.com

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