Originality and Fixation

Foundation of Copyright Law

In order for a work of authorship to meet the requirements for copyright protection, the work
must satisfy two basic criteria: originality, and fixation. The specifics on what each criterion
is and how it can be met is as followed.

Originality

The concept of ‘originality’ as provided under the Copyright Act, 1957 has been introduced
to safeguard new work or creation or inventions from that of unauthorised uses, reproduction
that has been done without consent or inventions from forgeries, or other unoriginal works.
The concept is considered to be the yardstick of the copyright law, which determines the
applicability of the same. According to the doctrine of originality, the work seeking
copyright protection has to be of the author’s own intellectual creation and not a copied
version of an already published original work. Section 13 (1) of the Act of 1957 uses the
word “original” but does not define it. So, work has to be original for getting protection under
the Act.

To be original, a work of authorship must merely be independently created. In other words, it

cannot be copied from another. There is no requirement that the work be novel (as in patent
law), unique, imaginative or inventive. A work need only demonstrate a very small amount of
creativity in order to meet the originality requirement. Very few creations fail to satisfy the
minimum creativity requirement.

The yardstick can be presented in the form of two tests, that helps in determining whether the
concerned work is original or not, namely,

1. Non- copying requirement (completely objective test):

As can be understood by the very heading, this part of the originality test basically requires
the work seeking copyright protection to not be a copied material, instead objectively be an
original one.

2. Threshold/degree of originality(varies from court to court):

In case of this part of the originality test, no appropriate explanation can be

attached, instead what can be kept open for the readers to understand is that this
part of the test rests its identity to be defined by the courts. It is the court of law
who is left to determine the degree of originality in the matter seeking copyright.

Fortune Films International v/s Dev Anand and Anr.,1978

http://student.manupatra.com/Academic/Studentmodules/Intellectual-Property-
Rights/Copyright-Act.htm

Subject Matter : Performer's Rights

Relevant Section : Section 38: Whenever someone performs any artistic work, special rights
ves in him/her for 50 years starting from the next calendar year of the performance;
Section 39: Talks about the acts that do not infringe broadcast or performer's righs. Work
used for good teaching purposes, fair use, or any other necessary act do not infringe the rights
under this Act.

Key Issue : Whether the performance of a cine artiste in a cinematograph film would be
"work" protected by the Copyright Act, 1957?

Citation Details : Fortune Films International v. Devanand (AIR 1979 Bom

17); MANU/MH/0006/1979

Summary Judgment :

Facts: The plaintiff was a cine artiste of a Hindi motion picture entitled "Darling Darling"
produced by the first defendants. In the course of correspondence exchanged between the
parties, it was inter alia provided that in consideration of his services to the producers he
would be paid remuneration of Rs. 7 lakhs in certain amounts on or before the release of the
picture in the territories of Delhi-U. P., Bengal, Nizam, Mysore, C.P.-C I., Tamil-Nadu and
Andhra. It was further provided that the copyright in the cine artiste's work in the motion
picture was to vest in the cine artiste till full payment of the agreed amount was made to him
on which it would automatically vest in the producers. The plaintiff alleged that the producers
were releasing the picture in the Bombay and overseas territories without full payment of the
remuneration to him, and he sued to restrain the producers from doing so.

Held: The Honourable Supreme Court stated that an actor in a film has no rights over his
performance in the film. This was before 1994. After the amendment in the Act, Sections 38
and 39 were added.

Super Cassettes Industries v. Bathla Cassette Industries (107 (2003) DLT 91)

Subject Matter :

Relevant Section : Section 38: Whenever someone performs any artistic work, special rights
ves in him/her for 50 years starting from the next calendar year of the performance;
Section 39: Talks about the acts that do not infringe broadcast or performer's righs. Work
used for good teaching purposes, fair use, or any other necessary act do not infringe the rights
under this Act.

Key Issue : Whether re-recording of traditional music a violation of performer's rights?

Citation Details : Super Cassettes Industries v. Bathla Cassette Industries (107 (2003)
DLT 91); MANU/DE/0813/2003

Summary Judgment :

Facts: The plaintiff company is the manufacturer, producer and marketeer of pre-recorded
audio cassettes and other records under the logo T Series. The plaintiff produced a sound
recording under its banner T Series which was inter alias based on the song `Chalo Dildar
Chalo' from the film `Pakeezah' by giving notice to the original producer Mahal Pictures
under Section 52(1)(j) & Rule 21(2) (b) of the Copyright Act. Such a recording is known in
the music business as a version recording and inter-alia involves the singing of a well-known
song by a lesser known singer. The plaintiff gave prescribed royalty of Rs. 400 for producing
10, 000 copies to the original owner. When the defendant attempted to produce a version
recording of the version recording of the plaintiff by treading the path carved out by the
plaintiff, the plaintiff has come to this Court for an injunction restraining the defendant from
what is averred to be a copyright violation of its version recording. The dispute in the present
suit inter-alia pertains to a song "Chalo Dildar Chalo' from the film `Pakeezah', for which the
original owners of the musical works were M/s Mahal Pictures Pvt. Limited. This song forms
part of two audio cassettes produced by the plaintiff called Yadein Vol. I and Yadein Vol. II.
The plaintiff claims to have paid a sum of Rs. 400/- to Mahal Pictures the original owner of
the musical work `Chalo Dildaar Chalo' for producing 10, 000 records of Chalo Dildar Chalo.

Held: The traditional repertoire of Indian music which may not now enjoy copyright
protection due to passage of time and being in the public domain, cannot be appropriated by
any individual by virtue of a later and current sound recording by excluding other performers
and/or composers. The tradition of Indian classical and folk music is a valuable public
heritage common to all adherents and cannot be purloined by a contemporary
performer/composer by denying to others the benefit of the same. Performer's rights are
different from copyright, held that re-recording of a song without the authorization of original
performer constituted an infringement of the performer's rights.

Neha Bhasin v. Anand Raj Anand (2006 (32) PTC 779 Del.); MANU/DE/1729/2006

Subject Matter :
Relevant Section : Section 38: Whenever someone performs any artistic work, special rights
ves in him/her for 50 years starting from the next calendar year of the performance;
Section 39: Talks about the acts that do not infringe broadcast or performer's righs. Work
used for good teaching purposes, fair use, or any other necessary act do not infringe the rights
under this Act.

Key Issue : Whether this is misrepresentation and violation of performer's rights?

Citation Details : Neha Bhasin v. Anand Raj Anand (2006 (32) PTC 779
Del.); MANU/DE/1729/2006

Summary Judgment :

Facts: Plaintiff was a singer who claimed that her voice was used by the defendants for three
versions of song in Hindi film produced by defendant No. 2. Plaintiff alleged that defendant
no. 2 in connivance with defendant No. 1 (music director) had shown herself to be the singer
along with defendant No. 2, whereas plaintiff was shown as backup vocalist in all three
versions of song. Plaintiff prayed that instead of defendant No. 2's name, her name should
appear as lead singer.

Held: Addressing the question of what would constitute a 'live performance', the Court
observed that "Every performance has to be live in the first instance whether it is before an
audience or in a studio. If this performance is recorded and thereafter exploited without the
permission of the performer, then the performer's right is infringed." Court heard all versions
of song. It was found that the voice contained in all versions belonged to petitioner. Thus,
plaintiff should have been shown as lead singer instead of defendant. Court issued interim
order for restraining defendants from in any manner using, selling, distributing, exhibiting,
advertising the motion picture as well as cassettes, CDs, promos of the film.

Fortune Films International v. Dev Anand was one of the first cases in which the performer’s
rights were questioned and the court refused to recognise the performer’s right in the
cinematograph film. In this case, the court decided that an actor has no right to regulate the
use of their performance in the picture. The actors were paid for their work, and the producer
was free to utilise it in whichever way they wanted. However, performer’s rights were
recognised after the Copyright Act was amended in 1994.

The Delhi High Court found in Super Cassettes Industries v. Bathla Cassette Industries that
copyright and performers rights are two different things, and that if a song is re-recorded, the
original singer’s permission is required.

The court in Neha Bhasin v. Anand Raj Anand addressed the question of what constitutes a
live performance, holding that whether the performance is recorded in a studio or in front of
an audience, both are considered live performances in the first instance, and if anybody uses
such a performance without the performer’s agreement, the performer’s rights are said to be
infringed.
Apart from the judgements stated above, there hasn’t been much progress in the issue of
performer’s rights in India. However, as technology advances, new concerns may arise in the
future, putting the provisions of the performer’s rights to the test.

Performers Rights:-https://blog.ipleaders.in/performers-rights-under-copyright-law/

Fixation

To meet the fixation requirement, a work of authorship must be fixed in a tangible medium of
expression. Protection attaches automatically to an eligible work the moment the work is
fixed. A work is considered to be fixed so long as it is sufficiently permanent or stable to
permit it to be perceived, reproduced, or otherwise communicated for a period of more than
transitory duration.

Is it difficult to meet copyright protection requirements?

No. These two requirements do not present a difficult obstacle to overcome to receive
copyright protection. Unlike the requirements for protection under patent or trademark law,
very few works that fall within the subject matter of copyright fail to satisfy these two
requirements.

Significantly, there is no requirement that the copyright owner register the copyrighted work
with the U.S. Copyright Office or place a copyright notice on the work to obtain copyright
protection for the work.

Doctrine of Sweat of the Brow

According to this doctrine, an author gains rights through simple diligence during the creation
of a work. 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,1 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. Court held that the work has copyright
protection.

In University of London Press v. University Tutorial Press the test of "originality" was
explained by the Chancery Division of England which is also commonly cited as an
archetypal "sweat of the brow". The Court held that the Copyright Act does not require
that expression be in an original or novel form. It does, however, require that the work not be
copied from another work. It must originate from the author. The question papers are original
within the meaning of copyright laws as they were originated from the authors. The court
held that merely because similar questions have been asked by other examiners, the plaintiff
shall not be denied copyright. This doctrine is also followed in various other jurisdictions
including Canada, Australia and India.

USA's Modicum of creativity doctrine

USA has the oldest and the most developed Copyright laws in the world. The courts have
given importance to both the creative and subjective contribution of the authors since the late
17th century. In Feist Publications, Inc. v. Rural telephone Service Co.3 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".
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. The major question of law was whether a compilation like that of a telephone
directory is protected under the Copyright law? The court held that the facts like names,
addresses etc are not copyrightable, but compilations of facts are copyrightable. This is
majorly owing to the unique way of expression by way of arrangement and if it possesses at
least some minimal degree of creativity, it will be copyrightable. The Court held that Rural's
directory displayed a lack of requisite standards for copyright protection as it was just a
compilation of data without any minimum creativity, which was a requirement for copyright
protection. Hence, Rural's case was dismissed.

Burlington Home Shopping Pvt. Ltd. v Rajnish Chibber [ 61 (1995) DLT6]

Plaintiff was a mail order service Company. The business of the Plaintiff was to publish mail
order catalogues dealing with consumer items which were posted to the select list of
Plaintiff’s clients. A major investment in this regard was compilation of client list/customer
database. Plaintiff had developed a list of clientele/customers database over a period of three
years which was always in the gradual process of compilation. The Defendant was an
employee in the Plaintiff Company. After leaving the employment of the Plaintiff, Defendant
started his own business similar to as that of the Plaintiff. He had also managed to get a copy
of database of the Plaintiff and started to use the same for his own purpose.

Plaintiff’s Case

The database is an original literary work within the meaning of Section 2(o) of the Copyright
Act, 1957 and the Copyright in the same vests with the Plaintiff and therefore any
unauthorized use or substantial reproduction of the same is an act of infringement of
Copyright of the Plaintiff under the Copyright Act, 1957.

Defendant’s Case

The database which the Plaintiff is referring to has been developed by the Defendant and
therefore there is no infringement of Copyright.
The Questions, that came up for consideration before the Court was:

1. Whether a database consisting of compilation of mailing address of customers can be

subject matter of a copyright; and
2. Whether the defendant can be said to have committed infringement of the Plaintiff’s
Copyright.

Both the questions were answered by the Hon’ble Court in affirmative. The Court held that
compilation of addresses developed by anyone by devoting time, money, labour and skill
amounts to a literary work wherein the author has a Copyright. On comparison of the floppies
seized from the Defendant it was found that substantial number of entries were comparable
word by word, line by line, space by space. The database available with the Defendant was
found to be substantially a copy of the database available with the Plaintiff. The Defendant
was restricted to utilize the list of clients/customers included in the database exclusively
owned by the Plaintiff.

In coming to the answer to the first question, the Hon’ble Court relied on Section 2(o) which
defines ‘literary work’, Section 2(y) which defines ‘work’ , Section 14 (Exclusive Rights),
Section 17(c) (First ownership in a contract for service) of the Copyright Act, 1957 and also
on the following authorities on the subject of Copyright which reiterated the legal proposition
that the Compilations, like brochures, trade catalogs, client lists are capable of protection as
literary works. Other than this, client list is also protected under the law relating to
confidential information and trade secret.

Doctrine of Skill and Judgment

The Canadian Supreme Court has developed a mid-way approach between the two doctrines.
The skill and judgment required to produce the work must not be so trivial that it could be
characterized as purely mechanical exercise. This approach is sometimes known as the "Skill
and Judgment" test.
Eastern Book Co. v/s D.B. Modak (2008)
Citation: Civil Appeal No. 6472 of 2004
Bench: Justice B.N. Agarwal & Justice P.P. Naolekar
Court: Supreme Court of India

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?

Laws:
Section 13, 14 and 52 (1) (iv) (q) of the Indian Copyright Act, 1957.

Analysis:

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.

Navigators Logistics Ltd. v/s Kashif Qureshi (2018)

In Navigators Logistics v Kashif Qureshi, the Delhi High Court held that no copyright can
subsist in a compilation in the absence of authorship of a natural person and application of
skill and judgment by such person in creating the compilation. In a jurisdiction that does not
provide protection for non-original databases and weak remedies for breach of
confidentiality, the judgment raises several questions on the future of IP protection of Big
Data in India.
https://gamechangerlaw.com/cases-that-shaped-copyright-law-in-2018-case-1-navigators-
logistics-ltd-v-kashif-qureshi-ors/

Basic Readings:
Corinne Tan, “Regulation by Copyright Laws.” Regulating Content on Social
Media: Copyright, Terms of Service and Technological Features, by, UCL
Press, London, 2018, pp. 31–97. JSTOR.

https://library.oapen.org/bitstream/handle/20.500.12657/30493/1/646337.pdf

CCH Canadian Ltd. v/s Law Society of Upper Canada

https://casebrief.fandom.com/wiki/CCH_Canadian_Ltd._v_Law_Society_of_Upper_Canada