INTRODUCTION
“Originality” is the cornerstone of copyright protection worldwide, serving as a fundamental prerequisite for invoking legal safeguards under copyright law. In legal terms, originality is sine qua non—an essential condition for copyright protection. While the term “original” often suggests something entirely novel and unprecedented, within the framework of copyright law, it carries a more nuanced meaning. In this article, we will delve into the aspect of originality developed under the copyright regime in India.
According to Section 13 (1)(a) of the Copyright Act, 1957, this applies to the original literary, dramatic, musical, and artistic works created by people across India. However, the Act does not provide a clear definition of what “original” means. More importance is given to how an idea is expressed rather than the idea itself. Thus there is no single, agreed-upon definition of “originality”, and various legal doctrines have attempted to explain the concept.
To assess the “originality” of a work, two tests are applied, namely:
- Non-Copying Requirement: This is an objective test, which checks whether the work is a result of the creator’s efforts and not a copy of someone else’s work.
- Degree of Originality: This test varies from court to court and looks at how much originality is required for work to be considered original enough for copyright protection.
DOCTRINE OF ORIGINALITY
The tests for determining originality have developed through various case laws across different jurisdictions. Let’s look at various tests used to assess originality in a copyrighted work.
- Sweat of the brow doctrine
- Modicum of Creativity
- Skills and Judgement Test
Sweat of the brow doctrine:
This doctrine originated in the UK in the 1900 case Walter v. Lane, where the court held that verbatim reproduction of an oral speech in a newspaper was copyrightable due to the effort and skill the reporter put into recording it.
- Under this doctrine, copyright protection is granted based on the effort, labour, and skill involved in creating a work, rather than its originality or creativity.
- It emphasizes the diligence of the creator, focusing on how much labour and skill went into producing the work, rather than whether the work is groundbreaking or highly inventive.
- Further, in University of London Press v. University Tutorial Press, the concept was clarified. The court ruled that works like exam questions could be considered ‘original’ for copyright purposes, even if they weren’t highly creative, as long as they originated from the creator and weren’t copied.
- The doctrine doesn’t require a work to be novel or innovative. It only requires that the work is original to the creator and not a reproduction of someone else’s work.
Modicum of Creativity:
This doctrine requires that a work must show at least a minimal level of creativity to qualify for copyright protection. The core idea behind this doctrine is that for a work to be considered original, it should involve more than just skill or effort. There must be an intellectual contribution that goes beyond mere factual compilation or mechanical labour.
- This principle was solidified in the landmark U.S. judgement Feist Publications, Inc. v. Rural Telephone Service Co.
- The U.S. Supreme Court held that a work must not only be independently created but also exhibit a certain degree of creativity. The level of creativity need not be high, but it must be present, even if minima, for a work to meet the original requirement under copyright law.
- The doctrine marked a shift from the previous ‘Sweat of the Brow’ approach. The latter was focused more on the labour and effort put into creating a work, regardless of its creativity.
ORIGINALITY IN INDIAN COPYRIGHT REGIME
Skills and Judgement Test:
Skill and Judgement test in India relates to the shift in the approach to copyright protection. The Indian SC in Eastern Book Company & Ors v. D.B. Modak & Anr adopted a middle path between the ‘sweat of the brow’ and the ‘modicum of creativity’ approach.
- The court introduced the concept of a ‘minimum requirement of creativity’, granting copyright to the contributions made by the editors of legal reports. The court clarified that the work must originate from the author, not be copied, and involve more than mere labour. It should reflect intellectual effort and an exercise of judgment.
- The court uses this test to assess whether the work is truly the result of the author’s ability to use knowledge and discernment. The test derived from the approach of the Canadian SC decision CCH Canadian Ltd. v. Law Society of Upper Canada. The court emphasized that creativity is not always necessary for a work to be original, but skill and judgment are. A work must involve substantial intellectual effort and not be a mere mechanical reproduction to be copyrightable.
In essence, the inclination from ‘sweat of the brow’ to ‘modicum of creativity’ marks a significant development in Indian copyright law. It highlights that originality requires a blend of effort, creativity, and intellectual contribution. The court requires more than just hard work; a significant level of intellectual input and discretion must be demonstrated for a work to be original.
CONCLUSION
India’s copyright system strikes a balance between these approaches. The “Skill and Judgment” test adopted in the Eastern Book Company case blends the focus on effort with the requirement for intellectual input. It recognizes that work must not only be the result of hard work but must also involve insight and creativity, even if minimal.
Ultimately, originality in copyright law is not about creating something entirely new. It’s about the intellectual contribution and judgment applied in the creation of the work. Indian courts ensure that work reflects more than mere effort, protecting creative works that demonstrate skill, effort, and a basic level of originality.
Author – Dixit PARAKH
SOURCES:
- Doctrine of Originality under Copyright Law by Gayatri Singh.
- Evolution of Tests of Creativity in Copyrights by Tanya Saraswat.
- Understanding the concept of originality under copyright law in India by Robin Singh.
- Doctrine of Originality in Copyright by Madhu Noonia.
- The Concept of Originality in Copyright Law by Bharat Sharma and Anusha R.
- The Copyright Act, 1957
