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 “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”.
The “sweat of the brow” doctrine relies entirely on the skill and labour of the author, rendering the requirement of “creativity” in a work nearly redundant. This doctrine was first adopted in the UK in 1900 in the case of Walter v Lane, where an oral speech was reproduced verbatim in a newspaper report and the question was whether such verbatim reproduction would give rise to copyright in the work. The court held that because the reporter expended skill and labour to reproduce the speech, the work merited copyright protection. This is still the position in the UK, and countries such as New Zealand and Australia largely follow in the UK’s footsteps and apply the sweat of the brow doctrine to determine originality in a work.
In contrast, the US Supreme Court in Feist Publications Inc v Rural Telephone Service Company Inc (1991) discarded the sweat of the brow doctrine and held that a “modicum of creativity” or a “creative spark” in the end product is an essential condition for a work to qualify as original, as mandated under the US constitution.
The Supreme Court of India reviewed the concept of originality in detail in Eastern Book Company and Others v DB Modak and Another (2007). Prior to this case the Indian courts, implicitly, followed the English approach to originality. The appellants in this case were the publishers of Supreme Court Cases (SCC), a series of law reports which contains all the Supreme Court’s judgments. The appellants alleged that the respondents, who had created software packages that contained Supreme Court judgments, had copied the contents of their publication verbatim.
The appellants copy-edited the raw judgments and provided various inputs such as headnotes, cross-references, standardization and formatting of the text, paragraph numbering, verification, etc., which in their view required considerable skill, labour, expertise and expenditure. The appellants claimed that SCC constitutes an “original literary work” under section 13 of the Copyright Act and the respondents had infringed their right under section 14 by copying their work.
The Supreme Court interestingly diverted from its standard practice of following the English sweat of the brow doctrine and adopted the view that “Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity.” Applying the “creativity” standard, the court held that mere copy-editing of the judgment would not merit copyright protection as this involves labour and nothing else. However, since some creativity is involved in the production of headnotes, footnotes, editorial notes, etc., these would qualify for copyright protection and the respondents were not allowed to copy them.
The Supreme Court appears to have adopted a middle path and relied on the judgment in CCH Canadian Ltd v Law Society of Upper Canada (2004), where the Supreme Court of Canada took the view that the sweat of the brow approach was a rather low standard to establish originality as it shifted the balance of copyright protection mainly in favour of the owner as against public interest, and the modicum of creativity standard was too high as “creativity” implied that the creation must be “novel” or “non-obvious” and these concepts are mostly synonymous with patents and not copyright.
Adopting a neutral approach the court held that in order to claim copyright protection “the author must produce material with exercise of his skill and judgment which may not be creativity in the sense that it is not novel or non-obvious, but at the same time it is not the product of merely labour and capital”.
The Supreme Court clearly sought to establish a balance between the right of authors to exploit their work and reap benefits and at the same time ensure the right of the public to freely access copyrighted works. By departing from the sweat of the brow doctrine, the courts discarded both the low threshold and the higher threshold in favour of a middle-of-the-road approach. This would mean that each case would be scrutinized on its individual merits to establish originality as per the current approach.
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