The sine qua non for statutory copyright protection to a literary, dramatic, musical and artistic

work under any legal system is that the work must be ‘original’. But no copyright law, whether
national or international, has provided any sort of definition or meaning as to what the term
‘original’ in the context of the subject means. The matter, therefore, has been left open for the
national courts to determine and legal fraternity to ponder upon. As such, different theories have
developed across the globe in relation to the meaning of the term ‘original’ under copyright law.
The interpretation of the term ‘original’ has significant legal consequences as it has a direct
bearing on the question of as to what qualifies for the subject matter of copyright and what not
and is, therefore, an important aid in deciding the cases of infringement of copyrighted works.
This essay is an attempt to analyze the various aspects of the concept of ‘originality and the
judicial response. The author starts the essay by explaining
The author starts the
essay by explaining the role and development of intellectual property and copyrights law in a
nutshell and moves on to highlight the purpose which originality serves in modern copyright
law and analyses the legislative and judicial precedents of Common law jurisdictions, the
European Union and the United States which advocate towards three different thresholds of
originality. The author then considers the evolution of the “author’s own intellectual creation”
test of Infopaq v Danske from Europe to the UK and whether it can be applied in the United
States as well. Then the author discusses the need for harmonisation of originality by
highlighting on international conventions that deal with copyright law, considering copyright
as a human right and private globalisation. The essay then discusses the possible barriers that
a global test may come across in the event it is adopted and concludes that the proper test to
be applied should be the “author’s own intellectual creation” test with reasons to justify the
adoption.
INTRODUCTION

Intellectual Property Rights are the legal rights that are granted to a person for any creative and
artistic work, for any invention or discovery, or for any literary work or words, phrases and
symbols or designs for a stipulated period of time. Many nations have signed “WIPO copyright
Treaty” for the uniformity with regard to the protection granted under the law of copyright and
its enforcement in jurisdiction.

The author believes that the above statement summarises the need for this discussion.
Ninetyfour

parties have signed the WIPO Copyright Treaty at the time of writing this essay and
hundred and seventy-one nations are member states of the Berne Convention, both of which

advocates towards uniformity with regard to the protection granted under the law of copyright,

and on its enforcement between jurisdictions.In India, Intellectual Property is governed under
various laws. The term “copyright” is not defined under the Indian Copyright Act, 1957. The
general connotation of the term copyright refers to the “right to copy”. Copyright protection is
basically granted to an author on three fundamental standards. They are as follow:

1. Protection of expressions of ideas rather than the idea themselves

2. Must be fixed in any medium

3. Work must be original

Copyright also does not protect the titles per se or the names, word or a set of words. But there
can be exceptions based on the facts and circumstances of each case. For example, the actor Shah
Rukh Khan has copyrights his name (SRK) and the music composer A.R.Rahman copyrighted
the title “Jai Ho” for the Oscar song which is currently under litigation. It is noteworthy to
mention here that the defendant can always take a stand of cancellation of copyright in any suit
unless he is estopped by any implied or express acceptance. The only criterion to determine
whether a person is entitled to copyright protection is originality in expression.