originality in copyright

8/16/2019 Originality in Copyright

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JURIS ONLINE – IPR PUBLISHED ON 15.12.2010 BY DIVYA VIKRAM

CONCEPT OF ORIGINALITY UNDER INDIAN COPYRIGHT ACT 1957

O!"#"$%&"'( ") '*+ ,$+ '*"$# -$,!"#"$%& "$/) /, $,' "$/ '*+ -)+ ,. - John Stuart Mill

Copyright law in India can be traced back to the time when the East India Company decided

to extend English Copyright Law, 1847 to territories which were nder its control! "his law in

1#14, was replaced by the Indian Copyright $ct, which was based on the 1#11 %& Copyright

$ct! "he $ct was howe'er di((erent (rom the %& 1#11 $ct in two ways! )irstly, penal

sanctions were introdced (or copyright in(ringement and secondly, the scope o( the term

*copyright+ was modi(ied! "herea(ter came the existing Copyright $ct, 1#7 hereina(ter *the

$ct+.! Copyright is essentially stattory right there exists no common law right to

copyright!In India, it is go'erned by theC,(!"#*' A3'4 1957, the C,(!"#*' R-&+)

195 and I$'+!$%'",$%& C,(!"#*' O!/+!4 1999 as amended in 1###, 1## and /000respecti'ely!

In this paper the researcher will look at the Concept o( riginality in literary works as

de'eloped by the 2diciary in India! "wo di((erent doctrinal school o( thoght 'i3!, * sweat of

the brow+ on one hand and *modicum of creativity+ on the other wold be discssed in light

o( 'arios case laws! "he case o( Eastern Book Co. v. D.B Modak (hereinafter ‘EBC

case’) wold be emphasi3ed, as in this case the Cort witnessed a shi(t away (rom its

traditional doctrine ennciated in University London Press v. University Tutorial

Press (hereinafter ‘University London case’) and adopted the Feist Publications nc. v. !ural Tele"hone Service Co. hereinafter ‘Feist case’) position o( *modicm o( creati'ity+

adopted by the %! preme Cort! $lso, copyright nder international con'entions will be

looked at!

"he $ct identi(ies an athor, who can be gi'en monopoly to exploit his work (or a limited

period o( time which is presently li(e pls 50 years.! In absence o( any stattory re6irement

(or registration to entail copyright protection, the moment a work is created or prodced,

copyright sbsists in it! oreo'er, it is a negati'e right i!e it is prohibitory in natre- it

pre'ents others (rom copying or reprodcing the work! hat is important is that the work

shold be a literary work, it shold be (ixed in a medim and it shold be original in order to

get copyright protection! $ccording to ec 19 o( the $ct copyright protection sbsists in:a)original (emphasis supplied by the Author) literary, dramatic, musical and artistic works.

b) Cinematograph films

c) Records

"raditionally, ci'il and common law contries ha'e di((ered in their approach towards

copyright law, de to which there exists a di'ergence in the ob;ecti'es o( these systems! In

modern complex society, pro'isions ha'e been made (or protecting e'ery manowe'er, Copyright law does not ask (or originality o( ideas, bt in expression o( thoght in case o( =literary workowe'er the


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degree o( originality re6ired in a work is o( more than tri'ial or minimal le'el! "hogh

originality is not mandated by the $ct nlike %! or %&, yet the sine 6a non o( copyright is

originality!

"hogh the low threshold o( originality is ni'ersally recogni3ed in order to ensre

dissemination o( knowledge, there exists 'arying standards o( originality in di((erent ;risdictions, primarily de to di'ergent o( ob;ecti'e o( copyright laws in these contries!

' CONCEPT OF ORIGINALITY AS EVOLVED BY THE JUDICIARY

Since no statute defines originality in each jurisdiction, therefore, the requirement of originality

is understood according to judicial interpretation of the concept.

$s early as 1#/4 while interpreting ec / o( the Imperial Copyright $ct, 1#14, in the ?ri'y

Concil case o( Mac#illan Co#"any v. J.$. Coo"er , the Cort held that the word original

does not mean that the work mst be expressions o( original or in'ented thoghts, bt it

shold not be copied (rom other works! Lord Atkinson in the instant case held that labor,

skill and capital expended mst be s((icient to import to the prodct, some 6ality which

di((erentiates the prodct (rom raw material! "his decision was primarily based on University

London case holding- a case nder the %& Law!

In $artar Sin%h &iani v. Ladha Sin%h'it was obser'ed that copyright law does not pre'ent a

person (rom taking what is se(l (rom an original work with additions and impro'ements!

%nder the gise o( a copyright the owner o( a copyright cannot ask the cort to close all the

'enes o( research and scholarship and all (rontiers o( hman knowledge! "he Cort

con(erred copyright on a work based on the labor and skill in'ested in prodcing the work!

"his trend was e'ident in the sbse6ent cases which (ollowed!

Later, the adras >igh Cort in C. Cunniah ( Co. v. Balra) ( Co!, e'ol'ed the principle

that the se o( original skill or labor is essential to ac6ire copyright in a work as a prodction o( his labor! "hogh the Cort recogni3ed that the sb;ect dealt with need not be

original, nor the ideas expressed to be no'el! Expenditre o( skill and labor in originality

and not originality o( thoght is re6ired! "hs, thogh the pictorial representation o( Lord

@alasbramanya in hman (or is common to e'eryone, yet, i( a pictre is made with

con'entional ideas with in respect o( his postre, ornaments, (orm etc!, it is prodct o( the

artist


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"he abo'e cases clearly show that Indian ;risprdence had been relying too hea'ily on the

English nderstanding o( what laws shold be like, and this had an ad'erse e((ect on the

de'elopment o( Indian ;risprdence in this (ield! "his was brilliantly articlated by r!

a;ee' Bhawan in an article where he proponded the concept o( the !B"ack Letter Law

#radition$% >e sggested that the modern legal system in India de'eloped nder the aegis o( @ritish rle and, as a reslt, cold not shake o(( the colonial in(lences that led to its creation!

"his has been the case e'en a(ter independence, and, as in all other (ields, copyright law has

also been shaped by English ;risprdence!

"his approach nderwent a paradigm shi(t in the EBC case, where the cort departed (rom

the earlier (ollowed approach by its English conterparts otherwise known as‘sweat of the

brow’ . and tilted towards the new re6irement o( ha'ing some amont o( creati'e spark to

con(er copyright protection otherwise known as ‘modicum of creativity’ .!"he cort ga'e the

;dgment which was di((erent (rom the leak which is (ollowed by Indian ;diciary! "he

;dgment gi'en by cort is mesmeri3ing as it showed the inclination on the part o( or

2diciary to mo'e away (rom the close association that Indian copyright law shares with itsEnglish conterpart! "he preme Cort in the instant case a(ter re'iewing a catena o(

;dgments inclding Ladbroke Football Ltd. v. ,illia# -ill ootball Ltd !, University

London case, Matthe/ Bender v. ,est Publishin% Co!, Feist case, bt endorsed the standard

ennciated in the Canadian preme Cort case CC- Canadian Ltd. v. La/ Society o

U""er Canada, which is a mid-way between the two doctrines! "he Cort noted that the two

positions i!e! the *sweat o( the brow+ and *modicm o( creati'ity+ were extreme positions!

"he Cort pre(erred a higher threshold than the doctrine o( *sweat o( the brow+ bt not as

high as *modicm o( creati'ity+! "he Canadian standard o( copyright is based on skill and

;dgment and not merely labor, and the Indian cort too (ollowed the same! "he skill and ;dgment re6ired to prodce the work mst not be so tri'ial that it cold be characteri3ed as

prely mechanical exercise! >owe'er the cort also noted that the application o( skill and

;dgment shold be sbstantial and not merely tri'ial! Cort also warned that no'elty or

in'ention or inno'ati'e idea is not the re6irement (or protection o( copyright bt it does

re6ire minimal degree o( creati'ity!

Prior toEBC case the common conception of originality is that the work should originate from

the author as represented byPeterson, J. inUniversity London case, when determining whether

question papers which contained within them ideas taken from the public domain were original

works. The word “original” does not mean that the work must be the expression of original or

inventive thought. An idea can be expressed in a number of ways, and it is only the modes ofexpressing the idea that are given protection. Copyright Acts are not concerned with the

originality of ideas, but with the expression of thought. The originality which is required relates

to the expression of the thought. This approach by the Court was termed as “Sweat of the Brow” or

Industrious Labour.

The “sweat of the brow” theory considers skill and labour as the only requirements of originality.

Creativity is no criterion in this theory. This standard in the UK was first adopted in the case

ofWalterv.Lane which involved the verbatim reproduction of an oral speech in a newspaper

report. The question was whether the work created was copyrightable. Taking into account the

amount of labour undertaken by the reporter in taking down and recording the speech, the courtopined that the work was copyrightable as a result of (and as a reward for) such skill and labour.


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Court said that it is immaterial whether work is wise or foolish, accurate or inaccurate, or

whether it has or does not any literary merit. Thus, the reporter’s efforts of reproducing the

speech were rewarded although it did not involve any creativity and merely an insignificant

amount of skill and labour.

Another test enunciated inUniversity London case was“what is worth copying is prima facie worth protecting”. This too indicates the willingness toafford protection to works merely because they

were useful, despite them lacking any amount of skill, judgment or creativity. According to

Nimmer, “these cases generally rested upon the rationale that one should not freely reap the benefit of the

industry of another in reporting and researching facts or other public domain material.” The case also

observed that protection is not granted automatically and ‘skill, judgment and labour’ is a

requirement that operates as a proviso “de minimis”.

The US test for originality, which theEBC case tilted towards, requires not only that there be

some amount of independent input by the author of a work, but that the work have a “creative

spark” as well. The US Circuit Courts were divided on the issue of whether originality required

creativity. This question was cleared up in 1991 by the US Supreme Court in Feist case. The court

here departed from its conservative and broad definition of originality and observed that in

addition to independent effort, originality requires a minimum level of creativity. The Supreme

Court found that the originality requirement for copyright protection cannot be satisfied by

simply demonstrating that a work could have been put together in different ways and that there

must be at least some minimum degree of creativity for a work to be copyrightable. The court

therefore held that the white pages telephone directory belonging to the plaintiff (who had

alleged infringement), did not possess copyright at all, and, as a result, that there was no

infringement. The court in this case made it abundantly clear that the objective of copyright law

was not to reward the labour of an author but to promote the progress of science and useful arts,which was in fact, recognized much earlier inBaker v. Selden.

In a recent ;dgment- Chancellor Masters o 0+ord v. 1arendra Publishin% -ouse, &ustice

Bhat had the opportnity to once again examine the law relating to the standard o( originality!

>ere the plainti((, (ollowing the corse strctre prescribed by the 2amm and &ashmir tate

@oard o( chool Edcation, pblished textbooks (or class DI! "he plainti(( and the @oard

entered into an agreement and by 'irte o( which copyright in the said textbooks 'ested with

the (ormer! "he plainti((, in their textbooks, had gi'en answers to the 6estions in the

exercises, bt did not pro'ide detailed step-by-step method to arri'e at the answers! "he

de(endants, Aarendra ?blishing >ose came p with gide books which independently

contained the steps (or sol'ing those problems! "he plainti(( contended that this amonted tosbstantial copying o( 6estions by the de(endant and soght an order restraining the

de(endants (rom sch act! "he >igh Cort ga'e its ;dgment in consonance with the standard

o( *originality+ laid down in the EBC case. ince there was no attempt to show *creati'ity+,

>igh Cort held that the plainti((


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the isse o( copyright o'er 6estions! "he doctrine posits that where the idea and expression

are intrinsically connected, and that the expression is indistingishable (rom the idea,

copyright protection cannot be granted! $pplying this doctrine corts ha'e re(sed to protect

the expression o( an idea that can be expressed only in one manner, or in a 'ery restricted

manner, becase doing so wold con(er monopoly on the idea itsel(! In 1arendra Publishin% -ouse case, the Cort reasoned that mathematical 6estions are expressions o( laws o(

natre! ince langage is a limited medim, sch laws o( natre can be expressed only in a

(ew ways! >ence extension o( copyright protection (or 6estions wold deny access to ideas

that they encompass! "his wold ob'iate one o( the primary ob;ecti'es o( copyright law i!e

promotion o( creati'ity! )or these reasons, the Cort held that copyright cold not be

extended to the 6estions!

' DERIVATIVE 6ORK

"he originality re6irement in deri'ati'e work is that it shold originate (rom the athor by

application o( sbstantial degree o( skill- indstry or experience! ?recondition to copyright is

that work mst be prodced independently and not copied (rom another person! here acompilation is prodced (rom the original work, the compilation is more than simply a re-

arranged copyright o( original, which is o(ten re(erred to as skill, ;dgment and or labor or

capital! "he corts ha'e only to e'alate whether deri'ati'e work is not the end-prodct o(

skill, labor and capital which is tri'ial or negligible bt sbstantial! "he corts need not go

into e'alation o( literary merit o( deri'ati'e work or creati'ity aspect o( the same! "he

amont o( labor, skill and capital re6ired to spport sccess(lly a claim o( copyright

cannot be de(ined in precise terms and is a 6estion o( (act!

"he copyright in a deri'ati'e work extends only to the material contribted by the athor o(

sch work, as distingished (rom the pre- existing material employed in the work (or whichno copyright is con(erred! "he creator o( deri'ati'e work which is not in(ringement o(

nderlying work. is the owner o( the rights o( copyright in that deri'ati'e work, bt does not

ac6ire right to nderlying work! >owe'er, creator mst ha'e created the deri'ati'e work

with athority o( copyright proprietor! ithot any sch athori3ation, the creator o(

deri'ati'e work cannot se any part o( nderlying work withot permission o( copyright

proprietor nor can proprietor o( nderlying work se any part o( deri'ati'e work!

vCOPYRIGHT IN INTERNATIONAL INSTRUMENTS

International agreements on copyright sggest that copyright is gi'en only with respect to the

(orm o( expression! "he (oremost international treaty on copyright is theB+!$+

C,$+$'",$ on copyright! hile the Con'ention does not itsel( de(ine the term *originality+anywhere, and does not e'en expressly state the re6irement o( originality (or

copyrightability, there are indications in the Con'ention and in the preparatory works to the

Con'ention, that the works protected by copyright shold be original and as to what

originality means!

The TRIPs signed by the signatories to the WTO Agreement, incorporates within it the

substantive provisions of the Berne Convention.This means that the preparatory material of the

Berne Convention is also incorporated by inference into the TRIPS Agreement. Therefore, the

requirement of creativity in originality can be located within the TRIPs Agreement as well, and

this notion of “originality” is applicable not only to signatories of the Convention, but to allmembers of the WTO. In addition, the TRIPs Agreement itself provides that the WTO member


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states protect as literary works such data compilations as, by virtue of their selection or

arrangement, constitute “intellectual creations?. This implies that purely factual works, which

arenotor donotcontain “intellectual creations” do not receive copyright protection. In this

manner, both the Berne Convention and the TRIPs agreement seem to require creativity in

originality for copyright to subsist.' CONCLUSION

"he sweat o( the brow principle reslted (rom the eagerness o( the corts to reward the labor

o( the athor and to pre'ent another person (rom bene(iting (rom the (rits o( his labor! In

doing so, the corts ha'e gone beyond the limits o( copyright law and ha'e conse6ently,

nwittingly, extended protection to material otside the domain o( copyright law sch as

ideas, data and (acts! "he researcher (eels that this concept is (ndamentally (lawed and is not

based pon sond principles o( copyright law! Copyright protects the original expression,

originated (rom the athor! "he sweat o( the brow principle is an aberration o( the

re6irement o( originality and 'iolates the (ndamental axiom o( copyright i!e!, copyright

cannot sbsist in ideas or (acts! "he inherent problem with this doctrine is that the Corts willend p con(erring copyright on all works based on labor and skill employed in the work

thereby, creating monopoly and obstrct dissemination o( knowledge!

n the other hand, the decision rendered in Feist case is extremely important (irstly, becase

it clari(ied the standard go'erning the copyrightability o( (actal compilations or databases in

stressing that only those compilations possessing a minimal degree o( creati'ity in the

selection, coordination or arrangements o( (actal data 6ali(y (or protection! econdly, the

speci(ic holding that an alphabetical listing o( all the sbscribers (ails the originality test! "his

implies that mechanical arrangements o( (actal material, sch as chronology, are similarly

ineligible (or protection! "hirdly, the ;dgment makes it apparent that the sweat o( the brow isdead, and what exists is now is modicm o( creati'ity! Lastly, the Cort con(irmed the axiom

that (acts are not copyrightable! Its implications (or databases ser commits no copyright

in(ringement by sing or copying in(ormation (rom the database!

In the opinion o( the researcher, the Feist case threshold o( creati'ity assming that the

miidle path position taken in CC- Canada case is ;st di((erent name sake bt in reality the

Canadian and %! corts both ask (or merely a minimm amont o( creati'ity. is a sond

principle which the Cort has made a right decision in adopting! "his principle will help

promote creati'ity and (rther the ob;ecti'e o( copyright l

Baxi Upendra; Copyright Law and Justice in India; Vol 28; 1986; pp497-540Sec 16 of the Copyright Act, 1957 provides “No person shall be entitled to copyright or any

similar right in any work, whether published or unpublished, otherwise than under and in

accordance with the provisions of this Act or of any other law for the time being in force…”

(1916) 2 Ch 601.

499 U.S 340 (1991)

Sec 22 of the Copyright Act, 1957 provides that Except as otherwise hereinafter provided,

copyright shall subsist in any literary, dramatic, musical or artistic work (other than a

photograph) published within the lifetime of the author until17[sixty] years from the beginning

of the calendar year next following the year in which the author dies

Section 13(1)(a)


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A.J Aiyar, Judicial Dictionary, 1998, p 891

P Ramanatha Aiyar, Law Lexicon; 1997, p 1379

Eastern Book Co. v. Navin J Desai (2002) 25 PTC 641 (DB)

The Constitution of USA in Art 1(8) (8) mandates originality as a pre- requisite for copyright

protection.Sec1(1)(a) of the Copyright Act , 1988

AIR 1924 PC 75

Quoted in Nag Book House v. State of WB AIR 1982 Cal 245, at 249

AIR 1934 Lah 777

See,Govindan v. Gopalan AIR 1955 Mad. 391;Bagga v. AIR Ltd. AIR 1969 Bom 302

AIR 1961 Mad 111

AIR 1976 MP 261

AIR 1978 SC 1613

Dhavan Rajiv; Introduction at p vii, Galanter M; Law and Society in Modern India; 1stEd; Oxford

University press; London; 1993.

(1964) 1 WLR 273

158 F 3d 674 (2d Cir 1998)

(2004) 1 SCR 339 (Canada)

Though the Canadian position says it is a middle path between the two doctrines, it is more or

less the “modicum of creativity” standard followed in U.S. The U.S position too asks for just a

minimum level of creativity.

It was held that.“The derivative work produced by the author must have some distinguishable features

and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the

judgment would not satisfy the test of copyright of an author.”By “author? we mean the creator of the work, be it a literary, artistic, dramatic or musical work.

(1900) AC 539.

DAVID NIMMER, at Sec 3.04[B][1]

The full form of de minimis is ‘de minimis non curat lex’ which means, the law does not concern

itself with trifles.

The person making the work must therefore be an “author? in the commonly understood sense

of the word – he expresses something he has thought of himself – rather than being an “author?

in the sense that he expresses a fact.

(1880) 101 US 99

I.A 9823/2005See generally Sec 17( c) of the Copyright Act, 1957

Supra, Note 30

Prof W.R Cornish; Intellectual Property; 3rd Ed; Sweet & Maxwell; London, p 334-335

Premsai C; ‘Degree of Originality’ Copyright protection for Primary and Derivative Works;

Manupatra Intellectual Property Reports; Vol 3; 2008; pp17-29; at p27

Ibid, at 27

Agreement on Trade Related Aspects of Intellectual Property Rights

Article 9(1) of the TRIPs Agreement

Article 32 of theVienna Convention on the Law of Treaties

allows preparatory work of aninternational instrument to be considered in the interpretation of the instrument. Also, the WTO


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Panel has specifically declared that the preparatory material of the Berne Convention is

incorporated into the TRIPs Agreement along with the substantive provisions of the Convention

Article 10(2) of the TRIPs Agreement

originality in copyright

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