The concept of

originality under the

copyright law

Submitted by - Esha jain UID -19BAL5207

What is Originality?
Originality in copyright works is the sine qua non of all the
copyright regimes of the world. The common conception of
the meaning of ‘original’ is something that is new, not done
before. Originality is the aspect of created or invented works
by as being new or novel, and thus can be distinguished from
reproductions, clones, forgeries, or derivative works. It is a
work created with a unique style and substance. The term
"originality" is often applied as a compliment to the creativity
of artists, writers, and thinkers.
1. Intro
There is no definite and single, unified concept of
“originality” and there have been different doctrines
which have tried to define the concept. These different
doctrines have been discussed below.

➔ Sweat of the Brow Doctrine

➔ Civil Law Approach

➔ Modicum of Creativity Doctrine

➔ SKILL AND JUDGEMENT TEST

➔ DOCTRINE OF MERGER
SWEAT OF BROW
DOCTRINE
the Madras High Court, in C. Cunniah & Co. v. Balraj & Co., recognized
that the subject dealt with need not be original, nor the ideas expressed to
be novel. In Mishra Bandhu v. Shivratan, the court held neither original
thought nor original research are necessary for claiming copyright and
even compilations such as dictionaries, gazettes, maps, arithmetic,
almanacs, encyclopedias etc. are capable of having copyright. The
approach of the courts as above is often referred to as the “sweat of the
brow” doctrine where more importance is given as to how much labour and
diligence it took to create a work, rather than how original a work is. Most
common law jurisdictions such as has United Kingdom, Canada, Australia
have recognized this doctrine as various times.
Modicum of Creativity Doctrine

In Feist Publications v. Rural Telephone Service (decided by the US Supreme Court in 1991)
reflected a marked departure from the earlier approach of the US courts and raised the bar of
originality. The court ruled that facts, as they do not owe their origin to the author, cannot be
subject matter of copyright and stressed that in addition to independent effort, originality
requires a minimum level of creativity. Labour alone is not enough; the essence of creativity
has to be present. The US 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. Since the Feist decision, many common law countries have
moved towards applying a similar standard. This new approach is known as the “modicum of
creativity” doctrine which requires a minimum level of creative input for securing copyright
protection.
Civil Law Approach
Civil law jurisdiction like France and Germany and accord more importance to
the rights of the author/composer and have more stringent criteria on originality.
These rights are known as the Authors’ rights or droit d’auteur (also German
Urheberrecht). In these jurisdictions, the author is the person whose creativity
led to the protected work being created, although the exact definition varies from
country to country. It is an essential feature of authors’ rights that the object
which is protected must arise from the creativity of the author rather than from
his or her simple effort or investment: both French and German copyright laws
protect “works of the mind. This has led civil law systems to adopt a strong link
between the rights (at least initially) and the person of the author. It is relevant to
mention that European Union law also follows the Civil Law concept of Authors’
rights and accords a more stringent criteria to “originality”.
SKILL AND
JUDGEMENT TEST
The Canadian standard of copyright is based on skill and judgment and not
merely labour. 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. The Supreme Court of India in Eastern Book Co. v. D.B Modak
departed from the traditional “sweat of the brow” doctrine and followed the
Canadian Supreme Court by ruling that mere application of skill, labour and
judgment is not sufficient for according copyright protection.
Doctrine of Merger

The Supreme Court of India reasoned that mathematical

questions are expressions of laws of nature. Since language is
a limited medium, such laws of nature can be expressed only
in a few ways. Hence extension of copyright protection for
questions would deny access to ideas that they encompass.
This would obviate one of the primary objectives of copyright
law i.e promotion of creativity. For these reasons, the Court
held that copyright could not be extended to the questions.
Conclusion

The various approaches mentioned above which make an attempt to define the concept of originality show
that there is no single, unified concept of originality. The threshold of originality has changed from “sweat of
the brow” to “modicum of creativity” and also different jurisdictions have different criteria for originality. The
traditional sweat of the brow principle rewarded the labour of the author and prevented another person from
benefiting from the fruits of his/her labour. However, in doing so, the courts have gone beyond the limits of
copyright law and have consequently, extended protection to works that are not original in their true sense.
The sweat of the brow principle is an aberration of the requirement of originality and violates the
fundamental axiom of copyright i.e., copyright cannot subsist in ideas or facts. Further, the application of the
“sweat and the brow” doctrine bears no resemblance to the everyday understanding and use of ‘original’.
There is a conflict concerning originality in copyright law: on the one hand there is using a word of which the
common understanding is of ‘new creation from nothing’ but on the other hand, the law defines the word as
meaning originating from the author and involving work, skill and judgment.
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