Concept of Originality and

Idea Expression Dichotomy

Aishwarya Vats
Assistant Prof.(SS), SoL, UPES
 Section13 of the Indian (1) Subject to the
Copyright Act describes the provisions of this section
kind of works that enjoy and the other provisions of
copyright protection – this Act, copyright shall
subsist throughout India in
the following classes of
works, that is to say,
(a) original literary, (b) cinematograph films; (c) sound recordings Section 13 (a)of the Indian
dramatic, musical and and Copyright Act provides that
artistic works; only original literary,
dramatic, musical or artistic
work would qualify as being
copyrightable
SWEAT OF BROW DOCTRINE

• According to this doctrine, an author gains rights through simple diligence during the
creation of a work.
• Substantial creativity or “originality” is not required. The creator is entitled to such rights
on account of efforts and expense put in by him in the creation of such a work.
• For Example, the creator of a telephone directory or a database must have a copyright
over the product not because such a compilation of data showcases any creativity, or the
author has expressed anything original, but merely because of the effort, time and
money invested by the creator to collect and organise all the data in a specific manner.
• But such a compilation must be the work of the author himself and must not be copied
from another source.
 MODICUM OF
CREATIVITY DOCTRINE

• The concept of “originality” has undergone a paradigm shift from the “sweat of the brow”
doctrine to the “modicum of creativity” standard put forth in Feist Publication Inc. v. Rural
Telephone Service by the United States Supreme Court.
• The doctrine of “sweat of the brow” provides copyright protection on basis of the labour,
skill and investment of capital put in by the creator instead of the originality.
• In Feist’s case, the US Supreme Court totally negated this doctrine and held that in order to
be original a work must not only have been the product of independent creation, but it
must also exhibit a “modicum of creativity”.
• The Supreme Court prompted ‘creative originality’ and laid down the new test to protect
the creation on basis of the minimal creativity. This doctrine stipulates that originality
subsists in a work where a sufficient amount of intellectual creativity and judgment has
gone into the creation of that work.
• The standard of creativity need not be high but a minimum level of creativity should be
there for copyright protection.
 Feist
Publication •
•
Facts.
Rural Telephone Service Company, Inc. (Plaintiff) provides telephone service to

Inc. v. •
several communities. Due to a state regulation, it must issue an annual telephone
directory, so it published a directory consisting of white and yellow pages.
The yellow pages have advertisements that generate revenue. Feist Publications,

Rural •
Inc. (Defendant) is a publishing company whose directory covers a larger range
than a typical directory.
Feist Publications distributes their telephone books free of charge, and they also

Telephone •
generate revenue through the advertising in the yellow pages.
Rural Telephone refused to give a license to Feist P. for the phone numbers in the

Service
area, so they used them without Plaintiff’s consent. Rural sued for copyright
infringement.

[1991]
• Issue. Are the names, addresses, and phone numbers in a telephone
directory able to be copyrighted?
Held. No. Facts cannot be copyrighted, however compilations of facts can generally be copyrighted.

To qualify for copyright protection, a work must be original to the author, which means that the
work was independently created by the author, and it possesses at least some minimal degree of
creativity. A work may be original even thought it closely resembles other works so long as the
similarity is fortuitous, not the result of copying.

Facts are not original. The first person to find and report a particular fact has not created the fact;
he has merely discovered its existence.
Facts may not be copyrighted and are part of the public domain available to every person.
• To establish copyright infringement, two elements must be proven:
• ownership of a valid copyright
• and copying of constituent elements of the work that are original.
• The first element is met in this case because the directory contains some forward text. As to the

.
second element, the information contains facts, which cannot be copyrighted. They existed before
being reported and would have continued to exist if a telephone directory had never been
published.
• There is no originality in the formatting, so there is no copyrightable expression. Thus, there is
no copyright infringement.

Discussion. Facts cannot be subject to copyright laws; otherwise there would be no spreading of
information or learning. Subjecting facts to copyright laws would mean that any time a person
used a fact found in a book, be it in a school paper, newspaper, or another book, that person
would be guilty of piracy.
Originality in Copyright
• Originality relates for the work to originate from the author.
• Copyright law requires that the ‘expression’ of the idea in the work must not be copied from
another’s work and that it should originate from the author.
• In University of London Press v. University Tutorial Press[1916],
• Facts:
• University of London appointed two professors – Prof. Lodge and Mr. Jackson to make
examination papers of elementary mathematics. University London press intended to publish
These examination papers. Herewith, the University did not appoint these professors for the
full-time job, instead, they provided their “services” to the University.
• The defendant, university tutorial press Ltd, published various question papers three of them
similar to that of the plaintiff’s examination papers.
• As a result, University of London press commenced legal action and the question of copyright
arose.
 • Can question paper be considered

Issue: as literary work enjoying copyright

protection?
• Held:
• The court found that at the relevant time, the literary work
included maps, charts, plans tables and compilation.
• To define ‘literary work’ the court relied on various
precedents where the copyright granted to work other than
literature.
• Besides the court noted that even question paper required
compilation of question with the application of intelligence
and reasonable consideration. Hence, the works concerned
will be included in the ambit of ‘literary work’ even when it is
not ‘literature’ as such.
• Further, another question emerged, namely, who had the
ownership of copyright. The court answered that the press held
the title to publish the papers. The University of London had
actual ownership of papers.
• Finally, the defendant contended that the purpose of publishing
the examination paper was for educational purposes and
therefore they should be given exemption from the punishment.
• Ignoring the argument, the court gave a very famous legal maxim
still in use even after so many years of the decision – “What is
worth copying is prima facie worth protecting”.
• Hence plaintiff enjoys the right over the question paper and
defendant is liable for the violation of copyright.
IDEA-EXPRESSION DICHOTOMY
• Distinguishing idea from expression
• A very important aspect of copyright laws is that it protects expressions of
ideas rather than the ideas themselves.
• That is, copyright can be sought for the novelty of the way a particular
idea is expressed, not only for the originality of the idea itself.
• This is called the idea-expression dichotomy and is a frequently used legal
doctrine in copyright dispute resolution.
• This principle recognizes that ideas are abstract and can be common to
everyone. What deserves legal protection is the creative way an arctic
expresses the said idea.
• R.G. Anand v. Deluxe Films (1978)
• Indian law on copyright does not specifically mention the idea-expression dichotomy.
• But the rule got properly established in the Supreme Court’s landmark judgment of R.G.
Anand v. M/S Deluxe Films & Ors (1978).
• Facts
• The appellant-plaintiff in this case, R.G. Anand was an Indian playwright who had written
and produced the play ‘Hum Hindustani’ in the span of the years 1953-1954.
• The play had become extremely popular and subsequently, he was contacted by a person
called Mr. Mohan Sehgal (second defendant in this case). Mr. Sehgal requested the
appellant to send a copy of the play to him because he wanted to contemplate whether
it was adequate material to base a movie on. The appellant complied.
• In 1956 a motion picture called ‘New Delhi’ was released which the appellant
found to be completely based on his play.
• But the appellant had not been accorded with any credit in the movie.
• Accordingly, he filed a suit for damages in the Trial Court of Delhi.
• The trial court considered numerous concerns and concluded that the appellant
was the owner of the copyright in ‘Hum Hindustani’.
• However, there was no infringement of the appellant’s copyright.
• The appellant consequently appealed to the Delhi High Court who upheld the
decree of the Trial Court.
• By a special leave petition, the case finally reached the Supreme Court of India.
• Issues:
1.Whether the plaintiff is the copyright owner of the play ’Hum
Hindustani’ ?
2.Is the film 'New Delhi' an infringement of the plaintiff's copyright in
the play 'Hum Hindustani'?
3.Have defendants or any of them infringed the plaintiff's copyright
by producing, or distributing or exhibiting the film 'New Delhi'?
• The play’s major topic was ‘provincialism’ and the narrative concerned people from
different provinces (Punjab and Tamil Nadu).
• The film kept the same idea, merely switching the gender of the main character from the
play.
• The Court first contrasted the play with the film in general terms, concluding that the
film’s topic was larger in scope, encompassing both ‘provincialism’ and ‘dowry’.
• In determining that infringement was not proved, the Court concluded that copyright
cannot be obtained over a concept (‘provincialism’ in this case) and that the differences
between the two works were significant enough to find that there was no copying of
his play’s script.
• Moreover, a seven-point test for distinguishing an idea from the expression has emerged
from this case.
• Seven point test
• 1. There can be no copyright in an idea, subject matter, themes, narratives, or
historical or legendary facts, and copyright infringement in such circumstances
is limited to the creator of the copyright work’s form, method, arrangement,
and presentation of the concept.
• 2. Where the same concept is developed differently, it is obvious that because
the source is shared, parallels are sure to appear.
• In such a situation, the courts must decide whether the similarities are on basic
or significant parts of the style of expression used in the copyrighted work.
• If the defendant’s work is nothing more than a literal Imitation of the original
work with a few alterations here and there, it would be a copyright violation.
• 3. One of the surest and safest tests to determine whether or not there has
been a copyright violation is to see if the reader, spectator, or viewer is
clearly of the opinion and gets an unmistakable impression that the
subsequent work appears to be a copy of the original after having read or
seen both works.
• 4. There is no concern of copyright violation if the concept is the same but is
presented and treated differently such that the succeeding work becomes
an entirely new work.
• 5. Where, however, apart from the similarities appearing in the two works,
there are also significant and wide dissimilarities that negate the intention
to duplicate the original and the coincidences appearing in the two works
are manifestly accidental, no copyright infringement occurs.
• 6. As a breach of copyright constitutes an act of piracy, it must be proven by
clear and convincing evidence after applying the relevant case law criteria.
• 7. When the issue is an infringement of a stage play’s copyright by a film
producer or director, the plaintiff’s task becomes more difficult to show
piracy. It is obvious that, unlike a stage play, a film has a much broader
perspective, a wider field, and a larger background in which the defendants
might add colour and complexion distinct from the method in which the
original work has represented the concept by introducing a variety of
situations.
• Even yet, if the audience leaves the film with the idea that it is mostly a
replica of the original play, an infringement of the copyright may be
deemed proven.
• https://youtube.com/shorts/dYmBp7yjhFs?si=M-Vcy6TCE7jX_kF-
Eastern Book Company v DB Modak[2007]
• Facts:
• The Petitioners, Eastern Book Company, a partnership firm, and EBC Publishing Private Limited
were engaged in the business of printing and publishing various legal books together.
• One such publication was titled ‘Supreme Court Cases’ or SCC. This publication has existed since
1969 and consisted of all non-reportable, reportable and short judgements, orders, records of
proceedings and directions of the Supreme Court.
• They published copy-edited versions of these judgments along with certain additions such as
formatting, numbering, cross-referring, and other contributions that rendered it user-friendly. It
also incorporated headnotes, footnotes, and long notes.
• In 2004, the Respondents, Spectrum Business Support Limited, (also called Respondent-1) and
Regent Datatech Private Limited (Respondent-2) put out a software titled ‘Grand Jurix’ and ‘The
Laws’ respectively.
• These companies were alleged to have copied the entire module from SCC onto CD-ROMs,
thereby infringing the appellants’ IP rights.
• Issues:
• Whether the Petitioners’ work is eligible for protection under
Copyright Law?
• Whether the Defendants infringed the Petitioners’ copyrights?
• Whether individual elements added by the Petitioners suffice to
receive copyright protection over the entire work?
• The Petitioners contended that they have copyright in their version of the judgements
compiled in SCC, which is a product of their skills, ability, labour and capital.
• They did not intend to claim monopoly over the judgement, but the specific format in
which they publish them.
• The Petitioners further claimed that their work was infringed by the Respondents
because all the modules contained in the CD-ROM were similar to their work and they
had replicated the Petitioners’ way of publishing the legal reports with the exact
arrangements, sequences, and choices of cases.
• It was further alleged that the Respondents copied the entire judgement as put forth
in the Petitioners’ law report with the same formatting, paragraph numbers, copy-
editing and footnotes.
• The Respondents, however, presented that the Petitioners’ product is
not eligible for protection under copyright law as it is merely a
derivative work of Supreme Court’s judgments.
• Since it does not portray independent creation, it is not an original
work. It was argued that the additions made by the Petitioners were
not sufficient enough to render it protection under the Copyright Act.
• Further, they applied the merger doctrine and stated that the idea
intended to be expressed by the Petitioners and the form in which
they express the idea are inseparable, therefore leaving no room for a
possible alternative expression.
• The Court held that for a derivative work to receive copyright protection, it must be demonstrated
that the derivative work is more than just a copy of the original.
• It must contain the author’s independent skill apart from capital and labour.
• The court wanted to identify whether the petitioner's work was original. For doing so, they
determined that the modicum of creativity was too high of a standard whereas sweat of the
brow test was too low of a standard.
• Hence, they decided to apply the Canadian test of "skill and judgement". According to the court,
skill meant those which are not trivial and are substantial and judgement meant the use of
resources that went beyond the mere expenditure of labour and capital.
• The Respondents were ordered to refrain from copying the paragraphs made by the Petitioners
for internal referencing and to stop using the Petitioners’ views on dissent and concurring
opinions of the cases.
• The final judgement was in favour of the Petitioners, giving them an exclusive right over their
content, prohibiting the utilisation of the same.
• Conclusion:
• Eastern Book Company & Ors. v. D. B. Modak and Anr. created a new benchmark
for the interpretation of "originality" as a concept by defining a balance between
‘Sweat of the Brow’ and the ‘Modicum of Creativity’ test.
• At one end of the spectrum, there is the ‘Sweat of the Brow’ test to determine
originality, which entitles anybody with the provisions of labour and capital to be
eligible for copyright protection.
• On the other hand, we have a benchmark of creativity, which requires a creation
or a production to be novel and non-obvious.
• The Court is seen to have adopted a ‘middle path’ with the prerequisite of
‘adequate skill and judgement’, thereby setting a standard for proving originality.
• Doctrine of Merger
• The concept of the doctrine of Merger is an exception to the dichotomy theory.
• This doctrine applies in cases where a distinction between idea and expression cannot
be made and says that in such cases, copyright would not apply even to the
expression of the idea.
• This mainly happens when the expression of the idea is intrinsically linked with the
idea itself.
• An Indian authority in this regard is the Delhi High Court case of Mattel, Inc. and
Others v Jayant Agarwalla and Ors. (2008).
• In this case, the Court elaborated on the principle of merger and held that if the idea
is such that it becomes the expression or vice versa, copyright over the same cannot
be granted because it would end up creating a monopoly over the idea itself.
Mattel, Inc. and Others v Jayant
Agarwalla and Ors. (2008).
• Is Scrabble capable of being protected under copyright law?
• That was the crux of the matter before the Court.
• The plaintiffs argued that the game was an ‘artistic work’ under copyright law; and
claimed that “… the defendants have infringed (the plaintiffs’) copyright in the game
board and the rules.
• By use of red, pink, blue and light blue tiles and the use of a star pattern on the central
square … the defendants have infringed (the plaintiffs’) copyright in the game board
which is an artistic work.”
• Justice Bhat rejected this line of reasoning because of three factors –
• (a) the required standards of ‘originality’ were not met,
• (b) the ‘doctrine of merger’ applies, and
• (c) Section 15 (2) of the Copyright Act would apply.
• “What is required to attract copyright protection in the expression of
an idea is an exercise of skill and judgment. By skill, I mean the use of
one’s knowledge, developed aptitude or practised ability in producing
the work… This exercise of skill and judgment will necessarily involve
intellectual effort. 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.”