DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY,
LUCKNOW

INTELLECTUAL PROPERTY RIGHTS

FINAL PROJECT
Topic: CONCEPT OF ‘ORIGINALITY’ UNDER COPYRIGHT LAW

SUBMITTED BY: SUBMITTED TO:

SHIVANG MEHROTRA MR. VIKAS BHATI
Semester VII Assistant Professor (Law)
Roll no. 150101123 Dr. RMLNLU
B.A. LLB (Hons.)

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 ACKNOWLEDGMENTS

“Research can be undertaken in any kind of environment, as long as you have the
interest. I believe that true education means fostering the ability to be interested in
something.”

I owe my deepest gratitude to my teacher, Mr. Vikas Bhati, who patiently provided the
vision, advice and encouragement necessary for me to proceed and complete my project. Her
vast knowledge and ability to achieve excellence has proved to be very valuable throughout. I
shall always remain greatly thankful for the scholarly guidance provided by her.

I also thank the members of the library staff for their cooperation in making available the
research material and allowing me to access the internet even during the free time and
whenever I required doing so.

Last but not the least I would like to thank my friends it was only because of their excellent
help that I had been able to complete my project.

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 TABLE OF CONTENTS

Contents
SYNOPSIS
STATEMENT OF THE PROBLEM iv
OBJECTIVE v
HYPOTHESIS vi
RESEARCH QUESTIONS vi
RESEARCH METHODOLOGY vi
FINAL DRAFT
INDEX OF AUTHORITIES vii
INTRODUCTION 1
TEST OF ORIGINALITY 2
∙ 9
∙ 10
WORKS IN WHICH COPYRIGHT SUBSISTS 4
∙ 11
∙ 12
∙ 13
∙ 13
∙ 13
∙ 14
CONCLUSION 7
BIBLIOGRAPHY 8

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 STATEMENT OF THE PROBLEM

As contemplated under section 13 of India’s Copyright Act, 1957, a copyright can exist only
in “original” literary, dramatic, musical and artistic works. However, the act itself does not
throw light on the meaning of “original” or “originality”. What is entailed in these concepts
has been the subject-matter of judicial interpretations in India as well as various other
jurisdictions.
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. The bone of contention in
copyright related issues is mostly with respect to ascertainment of “originality” of the work.
Divergent views in regard of the same exist, the two important doctrines pertaining to how
originality mounts up in any copyrighted work being, one, the “sweat of the brow” doctrine
and two, the “modicum of creativity” doctrine.
The concept of “originality” envisaged under the “sweat of the brow” doctrine is of it
meeting the basic requirement of use of the skill and labour of the author in the work.
However, this renders 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 Lane1, where the
question was whether a verbatim reproduction of an oral speech in a newspaper would give
rise to a copyright in a work. Applying this doctrine, the court held that on account of the fact
that reproduction of the speech by the reporter expended skill and labour on his part, thereby,
the work merited copyright protection. This position still persists in UK, the same being true
for countries such as New Zealand and Australia, which follow the position in UK. The US
Supreme Court, on the other hand, in Feist Publications Inc v Rural Telephone Service
Company Inc2 did away with the “sweat of the brow” doctrine and held that a “modicum of
creativity” or a “creative spark” in the final work is the most vital constituent for a work to
qualify as original, as mandated under the US constitution.
The interpretation of and understanding of the concept of originality was undertaken by the
Supreme Court of India in depth in Eastern Book Company and ors v DB Modak and anr3 .
Prior to this, the approach of Courts in India was footstep. The appellants in this case were
the publishers of Supreme Court Cases (SCC). The appellants had alleged that the
respondents had created software packages, copying the contents of their publications

1
Walter v Lane (1900)AC 539.
2
Feist Publications Inc v Rural Telephone Service Company Inc 499 US 340.
3
Eastern Book Company and ors v DB Modak and anr (2008) 1 SCC 1.

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verbatim. The appellants copy-edited the raw judgments and provided various inputs such as
head notes, 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 constituted an “original literary
work” under section 13 of the Copyright Act.
The Supreme Court holding that there is no copyright in the facts per se, as the facts are not
created nor have they originated with the author of any work which embodies these facts,
diverted from its prior practice 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 it involved labour and
nothing else. However, since the production of headnotes, footnotes, editorial notes, etc.,
involved some creativity, only these would merit copyright protection and the respondents
were not allowed to copy them.
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”4.
The Supreme Court relying on the Canadian Supreme Court decision of CCH Canadian Ltd v
Law Society of Upper Canada5 adopted a middle path because in its view, the “sweat of the
brow” approach was a rather low standard to establish originality on account of the fact that 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.

OBJECTIVE
The objective of this paper is to analyze and understand the parameters and standards for
determination of ‘originality’ of the various kinds of works protected under the Copyright
Act, 1957. It shall also be discussed as to what the approach of the Courts in India as well as
other jurisdictions has been, namely, the Courts of UK, USA, Australia and Canada has been
in construing ‘originality’ and its application in different cases subsequently. The attempt

4
Eastern Book Company and ors v DB Modak and anr (2008) 1 SCC 113.
5
CCH Canadian Ltd v Law Society of Upper Canada [2004] 1 SCR 339.

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thereafter shall be to give a comparative analysis and suggest the most suitable and beneficial
approach which is in sync with the intention of the legislature in enacting the Copyright Act.

HYPOTHESIS
The primary objective of copyright is not to reward the labour of authors, but to promote the
progress of science and useful arts. To this end, copyright assures authors the right to their
original expression but encourages others to freely build upon the ideas and information
conveyed by a work. Novelty or invention or innovative idea is not the only requirement for
protection of copyright but it does require minimal degree of creativity. “Originality” requires
only that the author makes the selection or arrangement independently and that it display
some material with minimal level of creativity.

RESEARCH QUESTIONS

1. What are the aims and objectives of the Copyright Act, 1957.
2. What kind of “work” is protected under the copyright law in India?
3. When does a right to claim copyright exist?
4. What are the standards and parameters for ascertaining “originality” in a work which
is covered under the copyright law in India and is thereby protected?

RESEARCH METHODOLOGY

SOURCES OF DATA
The non-empirical approach of research has been used by the researcher for making this
project. Various books, articles and web sources have been consulted and taken inspiration
from in the making of this project.Apart from referring to the available material and resources
the author has used his own powers of observation and expressed his opinions and views
from time to time throughout the project. Researcher has quoted authors and cited their work
wherever required. Most of the books and the databases used were provided by Dr. Madhu
Limaye Library, RMLNLU.
MODE OF CITATION
OSCOLA shall be followed as the mode of citation.

INDEX OF AUTHORITIES
Cases

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Anil Gupta v Kunal Dasgupta 2002 (25) PTC 1. 5
Barbara Taylor Bradford Ltd v Sahara Media Entertainment Ltd 2004 (28) PTC 474 (Cal) (DB). 5
Burlington Home Shopping Pvt Ltd v Rajnish Chibber 1995 PTC (15) 278. 6
CCH Canadian v. Law Society of Upper Canada (2004) 1 SCR 339. 4
Donogue v Allied Newspapers Ltd (1973) 3 All Er 503 (Ch D). 5
Dr. Reckeweg & Co GMBH v Adven Biotech Private Ltd (2008) 38 PTC 308 (Del). 5
Eastern Book Company and ors v DB Modak (2008) 1 SCC 1. 3
Eastern Book Company v D B Modak (2008) 1 SCC 1. 5
Feist Publications Inc. v Rural Telephone Service Co 499 US 340 (1991). 3
Frederick Emerson v Chas Davies Story’s US Reports Vol 3 p 768. 5
Hollinrake v Truswell (1894) 3 Ch 420. 5
Indian Express Newspaper (Bombay) Pvt Ltd v Jagmohan Mundhara AIR 1985 Bom 229. 5
Indian Performing Right Society Ltd v Eastern Indian Motion Pictures Assn (1977) 2 SCC 834. 6
Inner Studies v Charlotte Anderson 2014(57) PTC 228 (Del). 6
Key Publications Inc v Chinatown Today Publishing Enterprises Inc 945 F 2d 509 (2d Cir 1991). 4
Macmillan & Company Ltd v Cooper (1924) 26 BOMLR 292. 3
Rediff.com India Ltd v E-Eighteen.com Ltd 2013 (55) PTC 294 (Del) 312. 3
Saregama India Ltd v Suresh Jindal 2007 (34) PTC 534 (Cal). 6
University of London Press Ltd v University Tutorial (1916) 2 CH D 601 3
Walter v Lane (1900) AC 539. 3
Warner Brothers Pictures Inc v Columbia Broadcastings Systems Inc 216 F 2d 945, 104 US P Q 103
(9th Cir 1954). 5

Statutes

Copyright Act 1957 2

Other Authorities

Angus Stevenson (ed), Oxford Dictionary of English (3rd edn, Oxford University Press 2010). 2

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 INTRODUCTION
Copyright refers to “the exclusive right given by law for a certain term of years to an author,
composer etc. (or his assignee) to print, publish and sell copies of his original work.”6
Copyright covers literary works (such as novels, poems and plays), films, music, artistic
works, and architectural design. Rights related to copyright include those of performing
artists in their performances, producers of phonograms in their recordings, and broadcasters
in their radio and television programs.
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.

Under Section 13 of the Copyright Act, 1957, copyright subsists in:

● original literary work (which includes computer programmes, tables, compilations and
computer databases7), artistic work (which covers painting, sculpture, drawing
(including a diagram, map, chart or plan), engraving, photograph, work of architecture or
artistic craftsmanship)8, musical work, dramatic work,9

● cinematograph film10, and

● sound recording.11

6
Angus Stevenson (ed), Oxford Dictionary of English (3rd edn, Oxford University Press 2010).
7
Copyright Act 1957, s 2(o); Burlington Shopping Pvt Ltd v Rajnish Chibber 1995 PTC (15) 278.
8
Copyright Act 1957, s 2(c).
9
Copyright Act 1957, s 13(a).
10
Copyright Act 1957, s 13(b).
11
Copyright Act 1957, s 13(c).

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Section 2(y) of the Act defines “work,” which even though does not cover performer’s rights,
it has been held that the section has to be read with section 38 of the Act to extend copyright
to a performer in his performance12.

TEST OF ORIGINALITY

Copyright subsists only in “original works” and establishing the “originality” of a work is the
most essential and contentious requirement. “Original” does not mean that the work must be
the expression of original or inventive thought or that it must be in an original or novel
form13. It is currently unclear what standard of originality is followed in India, as Indian
courts have not made any clear pronouncements on the concept of originality. Through
judicial pronouncements, the following tests of originality have been developed:

● DOCTRINE OF “SWEAT OF BROW”

Under the Literary Copyright Act, 1842 of UK, there was no general statute requirement of
originality for literary works. Consequently, in Walter v Lane,14it was held that a reporter was
entitled to copyright under the act in his verbatim report of a public speech. Applying this
doctrine, the court held that on account of the fact that reproduction of the speech by the
reporter expended skill and labour on his part, thereby, the work merited copyright protection
The same position was followed in University London Press v University Tutorial Press.15
The Privy Council had approved this principle in the case of Macmillan & Company Ltd v
Cooper,16 wherein, it was held that the product of the labour, skill and capital of one man
should have been expended sufficiently to impart to the material some quality or character
which the raw material didn’t possess, which differentiated the product from it. A work may
be ‘original’ if the author has applied his skill or labour, even though he has drawn upon
knowledge common to himself and others or on already existing earlier.

12
Star India Pvt Ltd v Piyush Agarwal 2014 (58) PTC 169 (Del) 175.

13
University of London Press Ltd v University Tutorial (1916) 2 CH D 601; Rediff.com India Ltd v E-
Eighteen.com Ltd 2013 (55) PTC 294 (Del) 312.

14
Walter v Lane (1900) AC 539.

15
Ibid (n13).
16
Macmillan & Company Ltd v Cooper (1924) 26 BOMLR 292.

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 ● DOCTRINE OF “MODICUM OF CREATIVITY”
This approach was developed by the U.S. Courts through the case of Feist Publications Inc.
v. Rural Telephone Service Co.17 It acknowledged that not every effort or industry, or
expending of skill, results in copyrightable work, but only those activities which create works
that are somewhat different in character, involve some intellectual effort, and involve a
certain degree of creativity, that “originality” is the sine qua non of copyright.
The landmark case in this regard is Eastern Book Company v D B Modak,18 the Supreme
Court rejected the doctrine of “sweat of brow” as it had numerous flaws, the most glaring
being that it extended copyright protection in a compilation beyond selection and
arrangement; extending it to the facts themselves, consequently, disentitle a subsequent
compiler to use any portion of previously published information and independently workout
the matte for themselves, so as to reach the same result from the same common sources of
information. “Sweat of brow” hence eschews one of the most fundamental axioms of
Copyright law; no one may copyright facts or ideas. This doctrine flouted basic copyright
principles, creating monopoly in materials in public domain.

The appellants in this case were the publishers of Supreme Court Cases (SCC). The
appellants had alleged that the respondents had created software packages, copying the
contents of their publications verbatim. The appellants copy-edited the raw judgments and
provided various inputs such as head notes, cross-references, standardization and formatting
of the text, paragraph numbering, verification, etc. The Court holding that only the compiler’s
selection and arrangement may be protected as it attracted some intellectual input, further
said that to support copyright, there must be some substantive variation. Novelty or invention
or innovative idea is not the requirement for protection of copyright but it does require a
certain degree of creativity19.

The Court majorly relied on the ‘skill and judgment’ test as formulated by Supreme Court of
Canada in the matter of CCH Canadian v. Law Society of Upper Canada20 and observed as
follows: “to be original under the Copyright Act the work must originate from an author, not

17
Feist Publications Inc. v Rural Telephone Service Co 499 US 340 (1991).

18
Eastern Book Company and ors v DB Modak (2008) 1 SCC 1.

19
Key Publications Inc v Chinatown Today Publishing Enterprises Inc 945 F 2d 509 (2d Cir 1991).

20
CCH Canadian v. Law Society of Upper Canada (2004) 1 SCR 339.

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be copied from another work, and must be the product of an author's exercise of skill and
judgment. The exercise of skill and judgment required to produce the work must not be so
trivial that it could be characterized as a purely mechanical exercise.”21 The Court preferred
a higher threshold than the doctrine of “sweat of the brow” but not as high as “modicum of
creativity”. The Canadian standard of copyright is based on skill and judgment and not
merely labor.

WORKS IN WHICH COPYRIGHT SUBSISTS

● ORIGINAL LITERARY WORKS
It covers work which expressed in print or writing, irrespective of the question whether the
quality or style was high22. Broadly, there are two categories of literary works: (a) primary or
prior works: these are the literary works not based on existing subject-matter and (b)
secondary or derivative works: based on existing matter.23 In a derivative work, standard of
creativity required is higher than that required in primary works24. Any new and original plan,
arrangement or compilation of material will entitle the author to copyright, whether the
material is old or new.25

Copyright subsists in expressions, not in ideas. Irrespective of how brilliant or clever an idea
might be, it’s nothing more than an idea. Unless it’s reduced in writing, or into some tangible
form, that it becomes a subject matter of copyright.26Copyright doesn’t extend to ideas,
schemes, systems or methods; it’s confined to their expression, and if their expression wasn’t
copied, copyright wasn’t infringed.27

A question in such case arises, where did the idea end and expression begin? From a reading
of various cases, it can be inferred that the answer lies in the realms of adjudication by courts,
there being no final and absolute answer. Drawing a line between ideas and expression of

21
Ibid.
22
Ibid (n13).
23
Ibid (n18).

24
Dr. Reckeweg & Co GMBH v Adven Biotech Private Ltd (2008) 38 PTC 308 (Del).

25
Frederick Emerson v Chas Davies Story’s US Reports Vol 3 p 768.

26
Donogue v Allied Newspapers Ltd (1973) 3 All Er 503 (Ch D).

27
Hollinrake v Truswell (1894) 3 Ch 420.

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such ideas is a situation of legal assessment.28This can be understood from the subsistence of
copyright in concept note, like in Anil Gupta v Kunal Dasgupta,29 the court had held that
albeit an idea isn’t protected per se, however, if an idea or a concept is developed into a
concept note, it is capable of registration.

No one can claim originality as to facts as facts do not owe their origin to an act of
authorship30. Similarly, copyright doesn’t subsist in events.31 The distinction is between
creation and discovery; the first person to find and report a particular fact hasn’t created it but
discovered, creations being the subject matter of copyright. Hence, factual descriptions where
an author has to choose the facts, choose their arrangement will attract copyright protection.

Fictional characters are also literary works as they aren’t apparent for the reader and are
created through descriptions. They are protectable if they are extremely well delineated as to
constitute “the story being told.”32

“Computer software” includes computer programmes, computer files and associated printed
documentation such as manuals for users.33 “Computer programme” is defined to mean a set
of instructions expressed in words, codes, schemes or in any other form. For copyright to
subsist in it, it must be ‘original’ and ‘recorded’ in writing or otherwise. The requirement of
originality is not an onerous one and does not mean that the computer programmes must be
novel or unique in some respect34.

● ORIGINAL DRAMATIC WORKS

The definition of “dramatics work” in the Act is an inclusive one. When someone does the
acts mentioned therein, physically and live and is not a photographic imprint thereof, it would
mean dramatic work.35This, and as has been held in Inner Studies v Charlotte Anderson,36

28
Barbara Taylor Bradford Ltd v Sahara Media Entertainment Ltd 2004 (28) PTC 474 (Cal) (DB).

29
Anil Gupta v Kunal Dasgupta 2002 (25) PTC 1.

30
Ibid (n18).
31
Indian Express Newspaper (Bombay) Pvt Ltd v Jagmohan Mundhara AIR 1985 Bom 229.

32
Warner Brothers Pictures Inc v Columbia Broadcastings Systems Inc 216 F 2d 945, 104 US P Q 103 (9 th Cir
1954).

33
Copyright Act 1957, s 2(ffb).
34
Burlington Home Shopping Pvt Ltd v Rajnish Chibber 1995 PTC (15) 278.

35
Saregama India Ltd v Suresh Jindal 2007 (34) PTC 534 (Cal).

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fixation of the matter in the form of writing or otherwise which means certainty of the
performance of the work in the manner conceived by the author are two requirements for
seeking copyright protection in dramatics work.

● ORIGINAL MUSICAL WORKS

“Musical work” refers to work consisting of music and includes any graphical notation of
such work, but does not include any words or any action, intended to be sung, spoken or
performed with the music.37 In Star India Pvt Ltd v Piyush Agarwal,38it was held that music
was different from sound; music only meant what were musical notes which were found on
the any writing medium and not what was heard. It is the melody or harmony reduced to
print, writing or graphic form.39

● ORIGINAL ARTISTIC WORKS

Section 2(c) of the Copyright Act, 1957 defines “artistic work”.40Engravings covered under
“artistic works” include etchings, lithographs, wood cuts, prints and other similar works not
being photographs.41All original engravings, paintings, sculptures, drawing, photograph,
graphic characters, work of architecture, work of artistic craftsman, covered under “artistic
work” can be copyrighted irrespective of their artistic quality. Also, some degree of skill and
effort must have been expended. Ideas of making a drawing, however original are not
protected by copyright, nor does it extend to processes or methods of construction with
respect to works of architecture.42

● CINEMATOGRAPH FILMS
Also known as “motion picture” and “audiovisual work” in some jurisdictions,
“cinematograph film” film means ‘any work of visual recording and includes a sound
recording accompanying such visual recording. Unlike literary, dramatic, musical and artistic
works, the Copyright Act does not stipulate that cinematograph films must be ‘original’ to
qualify for protection.

36
Inner Studies v Charlotte Anderson 2014(57) PTC 228 (Del).

37
Copyright Act 1957, s 2(p).
38
Ibid n(12).
39
Indian Performing Right Society Ltd v Eastern Indian Motion Pictures Assn (1977) 2 SCC 834.

40
Copyright Act 1957, s 2(c).
41
Copyright Act 1957, s 2(i).
42
Copyright Act 1957, s 13(5).

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In UK, the Gregory Committee considered that films and records didn’t have the same artistic
or literary merit and novelty of concept as found in artistic and literary works. It is because of
this that the word “original” does not appear in relation to cinematograph films and records.
Although there is no express stipulation in the Copyright Act, 1957 that it should b original,
the copyright does not subsist in cinematograph film if a substantial part of the film is an
infringement of the copyright in any other work.43

● SOUND RECORDINGS
“Sound recording” means a recording of sounds from which such sounds may be produced
regardless of the medium on which such recording is made or the method by which such
sounds are produced.44As is in the case of cinematograph films, sound recordings need not
necessarily be “original” on account of lack of any such stipulation in the Act.

CONCLUSION
Originality requires only that the author makes the selection or arrangement independently
and that some minimal amount of creativity is present in the work of the author. While a copy
of something in the public domain will not, if it be merely a copy, support a copyright, a
distinguishable variation will. Also, it is important to note that for copyright protection, the
work created by the author should be a result of substantial variation and not a result of trivial
variation. In order to encourage the avenues of research and development, the law has been
practical to hold that for originality, the work in question is not required to contain novelty.
India provides a practical approach in the ascertainment of a original work as it does not
completely rely on modicum of creativity as developed by the U.S. Courts, in fact, it very
well balances the sweat of the brow approach with the creativity element by ensuring that
skill and judgment are exercised by the author in the creation of an original work. Since, the
issue of originality is centric to the copyright ability of a work, regard has to be placed on the
skill and judgment test to be applied on the factual circumstances of every individual case.

BIBLIOGRAPHY

Books referred:

43
Copyright Act 1957, s 13(3)(a).
44
Copyright Act 1957, s 2(xx).

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1. V K Ahuja, Law of Copyright and Neighbouring Rights : National And International
Perspectives (2nd edn, Lexis Nexis 2015).
2. V R Krishna Iyer J, Iyengar’s Commentary on the Copyright Act (8th edn, Universal
Law Publishing Co 2013).
3. P Narayan, Law of Copyright and Industrial Designs (4th edn, Eastern Law House).
4. Dr. Avtar Singh, Intellectual Property Law (1st edn, Eastern Book Company 2013 ).

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