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Originality is the one thing unoriginal minds do not find the use of. - John Stuart Mill
Copyright law in India can be traced back to the time when the East India Company decided
to extend English Copyright Law, 1847 to territories which were under its control. This law in
1914, was replaced by the Indian Copyright Act, which was based on the 1911 UK Copyright
Act. The Act was however different from the UK 1911 Act in two ways. Firstly, penal
sanctions were introduced for copyright infringement and secondly, the scope of the term
copyright was modified. Thereafter came the existing Copyright Act, 1957 (hereinafter the
Act). Copyright is essentially statutory right there exists no common law right to
copyright.In India, it is governed by theCopyright Act, 1957, the Copyright Rules
1958 and International Copyright Order, 1999 as amended in 1999, 1995 and 2000
In this paper the researcher will look at the Concept of Originality in literary works as
developed by the Judiciary in India. Two different doctrinal school of thought viz., sweat of
the brow on one hand and modicum of creativity on the other would be discussed in light
of various case laws. The case of Eastern Book Co. v. D.B Modak(hereinafter EBC
case) would be emphasized, as in this case the Court witnessed a shift away from its
traditional doctrine enunciated in University London Press v. University Tutorial
Press (hereinafter University London case) and adopted the Feist Publications Inc. v.
Rural Telephone Service Co. (hereinafter Feist case) position of modicum of creativity
adopted by the U.S Supreme Court. Also, copyright under international conventions will be
looked at.
The Act identifies an author, who can be given monopoly to exploit his work for a limited
period of time (which is presently life plus 60 years). In absence of any statutory requirement
for registration to entail copyright protection, the moment a work is created or produced,
copyright subsists in it. Moreover, it is a negative right i.e it is prohibitory in nature- it
prevents others from copying or reproducing the work. What is important is that the work
should be a literary work, it should be fixed in a medium and it should be original in order to
get copyright protection. According to Sec 13 of the Act copyright protection subsists in:
a) original (emphasis supplied by the Author) literary, dramatic, musical and artistic works.
b) Cinematograph films
c) Records

Traditionally, civil and common law countries have differed in their approach towards
copyright law, due to which there exists a divergence in the objectives of these systems. In
modern complex society, provisions have been made for protecting every mans copyright,
whether big or small, having high degree of originality or not. The word original means first
in order or which has served as a pattern of which a copy or translation is made- first hand,
not imitative, novel in style, character or inventive.However, Copyright law does not ask for
originality of ideas, but in expression of thought in case of literary work. However the

degree of originality required in a work is of more than trivial or minimal level. Though
originality is not mandated by the Act unlike U.S or UK, yet the sine qua non of copyright is
Though the low threshold of originality is universally recognized in order to ensure
dissemination of knowledge, there exists varying standards of originality in different
jurisdictions, primarily due to divergent of objective of copyright laws in these countries.
Since no statute defines originality in each jurisdiction, therefore, the requirement of originality
is understood according to judicial interpretation of the concept.

As early as 1924 while interpreting Sec 2 of the Imperial Copyright Act, 1914, in the Privy
Council case of Macmillan Company v. J.K. Cooper, the Court held that the word original
does not mean that the work must be expressions of original or invented thoughts, but it
should not be copied from other works. Lord Atkinson in the instant case held that labour,
skill and capital expended must be sufficient to import to the product, some quality which
differentiates the product from raw material. This decision was primarily based on University
London case holding- a case under the UK Law.
In Kartar Singh Giani v. Ladha Singh,it was observed that copyright law does not prevent a
person from taking what is useful from an original work with additions and improvements.
Under the guise of a copyright the owner of a copyright cannot ask the court to close all the
venues of research and scholarship and all frontiers of human knowledge. The Court
conferred copyright on a work based on the labour and skill invested in producing the work.
This trend was evident in the subsequent cases which followed.
Later, the Madras High Court in C. Cunniah & Co. v. Balraj & Co., evolved the principle
that the use of original skill or labour is essential to acquire copyright in a work as a
production of his labour. Though the Court recognized that the subject dealt with need not be
original, nor the ideas expressed to be novel. Expenditure of skill and labour in originality
and not originality of thought is required. Thus, though the pictorial representation of Lord
Balasubramanya in human for is common to everyone, yet, if a picture is made with
conventional ideas with in respect of his posture, ornaments, form etc., it is product of the
artists skill and labour, therefore it entitles him to claim copyright in product of his labour.
Again, in Mishra Bandhu v. Shivratan, originality and registration was held the sine qua
non of copyright. In this case it was observed that the real test in adjudging originality of the
work is whether it involved skill, labour and knowledge of the author. If these conditions are
fulfilled then the author will be protected by law. It further went to hold that neither original
thought nor original research is essential for a literary work to be original. In case of
compilations such as dictionaries, gazettes, maps, arithmetic, almanacs, encyclopedias etc.
are capable of having a copyright in them. Though its true that the amount of originality
maybe small, but authors thought, skill and labour must be tremendous, which is protected
by law.
In R.G Anand v. Delux the Supreme Court analyzed the concept of originality while deciding
whether the film New Delhi infringed the copyright in the play Hum Hindustani. There
were considerable similarities between the play and the film. The Court observed the film as
having broader perspective and there was dissimilarities in scenic arrangements and
presentation, the work was held original and non violative of copyright in the play.

The above cases clearly show that Indian jurisprudence had been relying too heavily on the
English understanding of what laws should be like, and this had an adverse effect on the
development of Indian jurisprudence in this field. This was brilliantly articulated by Mr.
Rajeev Dhawan in an article where he propounded the concept of the Black Letter Law
Tradition. He suggested that the modern legal system in India developed under the aegis of
British rule and, as a result, could not shake off the colonial influences that led to its creation.
This has been the case even after independence, and, as in all other fields, copyright law has
also been shaped by English jurisprudence.
This approach underwent a paradigm shift in the EBC case, where the court departed from
the earlier followed approach by its English counterparts (otherwise known assweat of the
brow) and tilted towards the new requirement of having some amount of creative spark to
confer copyright protection (otherwise known as modicum of creativity).The court gave the
judgment which was different from the leak which is followed by Indian judiciary. The
judgment given by court is mesmerizing as it showed the inclination on the part of our
Judiciary to move away from the close association that Indian copyright law shares with its
English counterpart. The Supreme Court in the instant case after reviewing a catena of
judgments including Ladbroke Football Ltd. v. William Hill football Ltd., University
London case, Matthew Bender v. West Publishing Co., Feist case, but endorsed the standard
enunciated in the Canadian Supreme Court case CCH Canadian Ltd. v. Law Society of
Upper Canada, which is a mid-way between the two doctrines. The Court noted that the two
positions i.e. the sweat of the brow and modicum of creativity were extreme positions.
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 labour, and the Indian court too followed the same. The skill and
judgment required to produce the work must not be so trivial that it could be characterized as
purely mechanical exercise. However the court also noted that the application of skill and
judgment should be substantial and not merely trivial. Court also warned that novelty or
invention or innovative idea is not the requirement for protection of copyright but it does
require minimal degree of creativity.
Prior to EBC case the common conception of originality is that the work should originate from
the author as represented by Peterson, J. in University London case, when determining whether
question papers which contained within them ideas taken from the public domain were original
works. The word original does not mean that the work must be the expression of original or
inventive thought. An idea can be expressed in a number of ways, and it is only the modes of
expressing the idea that are given protection. Copyright Acts are not concerned with the
originality of ideas, but with the expression of thought. The originality which is required relates
to the expression of the thought. This approach by the Court was termed as Sweat of the Brow or
Industrious Labour.
The sweat of the brow theory considers skill and labour as the only requirements of originality.
Creativity is no criterion in this theory. This standard in the UK was first adopted in the case
of Walter v. Lane which involved the verbatim reproduction of an oral speech in a newspaper
report. The question was whether the work created was copyrightable. Taking into account the
amount of labour undertaken by the reporter in taking down and recording the speech, the court
opined that the work was copyrightable as a result of (and as a reward for) such skill and labour.

Court said that it is immaterial whether work is wise or foolish, accurate or inaccurate, or
whether it has or does not any literary merit. Thus, the reporters efforts of reproducing the
speech were rewarded although it did not involve any creativity and merely an insignificant
amount of skill and labour.
Another test enunciated in University London case was what is worth copying is prima facie worth
protecting. This too indicates the willingness to afford protection to works merely because they
were useful, despite them lacking any amount of skill, judgment or creativity. According to
Nimmer, these cases generally rested upon the rationale that one should not freely reap the benefit of the
industry of another in reporting and researching facts or other public domain material. The case also
observed that protection is not granted automatically and skill, judgment and labour is a
requirement that operates as a proviso de minimis.
The US test for originality, which the EBC case tilted towards, requires not only that there be
some amount of independent input by the author of a work, but that the work have a creative
spark as well. The US Circuit Courts were divided on the issue of whether originality required
creativity. This question was cleared up in 1991 by the US Supreme Court in Feist case. The court
here departed from its conservative and broad definition of originality and observed that in
addition to independent effort, originality requires a minimum level of creativity. The 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. The court
therefore held that the white pages telephone directory belonging to the plaintiff (who had
alleged infringement), did not possess copyright at all, and, as a result, that there was no
infringement. The court in this case made it abundantly clear that the objective of copyright law
was not to reward the labour of an author but to promote the progress of science and useful arts,
which was in fact, recognized much earlier in Baker v. Selden.

In a recent judgment- Chancellor Masters of Oxford v. Narendra Publishing House, Justice

Bhat had the opportunity to once again examine the law relating to the standard of originality.
Here the plaintiff, following the course structure prescribed by the Jammu and Kashmir State
Board of School Education, published textbooks for class XI. The plaintiff and the Board
entered into an agreement and by virtue of which copyright in the said textbooks vested with
the former. The plaintiff, in their textbooks, had given answers to the questions in the
exercises, but did not provide detailed step-by-step method to arrive at the answers. The
defendants, Narendra Publishing House came up with guide books which independently
contained the steps for solving those problems. The plaintiff contended that this amounted to
substantial copying of questions by the defendant and sought an order restraining the
defendants from such act. The High Court gave its judgment in consonance with the standard
of originality laid down in the EBC case. Since there was no attempt to show creativity,
High Court held that the plaintiffs claim of copyright is not maintainable. Further, the Court
noted that the involvement of the Board in the creation of syllabus did not suggest that there
could not be any creativity in the schematic arrangement of chapters. Thus, the position of
law on originality is as enunciated in EBC case, involving skill and judgment.
As stated earlier, copyright protects expressions and not ideas. Also, it does not protect
expressions which are closely interlinked with ideas as extension of protection for such
expressions will in fact protect the ideas. The doctrine of merger was used for deciding

the issue of copyright over questions. The doctrine posits that where the idea and expression
are intrinsically connected, and that the expression is indistinguishable from the idea,
copyright protection cannot be granted. Applying this doctrine courts have refused to protect
the expression of an idea that can be expressed only in one manner, or in a very restricted
manner, because doing so would confer monopoly on the idea itself. In Narendra Publishing
House case, the Court 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.
The originality requirement in derivative work is that it should originate from the author by
application of substantial degree of skill- industry or experience. Precondition to copyright is
that work must be produced independently and not copied from another person. Where a
compilation is produced from the original work, the compilation is more than simply a rearranged copyright of original, which is often referred to as skill, judgment and or labour or
capital. The courts have only to evaluate whether derivative work is not the end-product of
skill, labour and capital which is trivial or negligible but substantial. The courts need not go
into evaluation of literary merit of derivative work or creativity aspect of the same. The
amount of labour, skill and capital required to support successfully a claim of copyright
cannot be defined in precise terms and is a question of fact.
The copyright in a derivative work extends only to the material contributed by the author of
such work, as distinguished from the pre- existing material employed in the work for which
no copyright is conferred. The creator of derivative work (which is not infringement of
underlying work) is the owner of the rights of copyright in that derivative work, but does not
acquire right to underlying work. However, creator must have created the derivative work
with authority of copyright proprietor. Without any such authorization, the creator of
derivative work cannot use any part of underlying work without permission of copyright
proprietor nor can proprietor of underlying work use any part of derivative work.

International agreements on copyright suggest that copyright is given only with respect to the
form of expression. The foremost international treaty on copyright is theBerne
Convention on copyright. While the Convention does not itself define the term originality
anywhere, and does not even expressly state the requirement of originality for
copyrightability, there are indications in the Convention and in the preparatory works to the
Convention, that the works protected by copyright should be original and as to what
originality means.
The TRIPs signed by the signatories to the WTO Agreement, incorporates within it the
substantive provisions of the Berne Convention.This means that the preparatory material of the
Berne Convention is also incorporated by inference into the TRIPS Agreement. Therefore, the
requirement of creativity in originality can be located within the TRIPs Agreement as well, and
this notion of originality is applicable not only to signatories of the Convention, but to all
members of the WTO. In addition, the TRIPs Agreement itself provides that the WTO member

states protect as literary works such data compilations as, by virtue of their selection or
arrangement, constitute intellectual creations?. This implies that purely factual works, which
are not or do not contain intellectual creations do not receive copyright protection. In this
manner, both the Berne Convention and the TRIPs agreement seem to require creativity in
originality for copyright to subsist.

The sweat of the brow principle resulted from the eagerness of the courts to reward the labour
of the author and to prevent another person from benefiting from the fruits of his labour. In
doing so, the courts have gone beyond the limits of copyright law and have consequently,
unwittingly, extended protection to material outside the domain of copyright law such as
ideas, data and facts. The researcher feels that this concept is fundamentally flawed and is not
based upon sound principles of copyright law. Copyright protects the original expression,
originated from the author. 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. The inherent problem with this doctrine is that the Courts will
end up conferring copyright on all works based on labour and skill employed in the work
thereby, creating monopoly and obstruct dissemination of knowledge.
On the other hand, the decision rendered in Feist case is extremely important firstly, because
it clarified the standard governing the copyrightability of factual compilations or databases in
stressing that only those compilations possessing a minimal degree of creativity in the
selection, coordination or arrangements of factual data qualify for protection. Secondly, the
specific holding that an alphabetical listing of all the subscribers fails the originality test. This
implies that mechanical arrangements of factual material, such as chronology, are similarly
ineligible for protection. Thirdly, the judgment makes it apparent that the sweat of the brow is
dead, and what exists is now is modicum of creativity. Lastly, the Court confirmed the axiom
that facts are not copyrightable. Its implications for databases user commits no copyright
infringement by using or copying information from the database.
In the opinion of the researcher, the Feist case threshold of creativity (assuming that the
miidle path position taken in CCH Canada case is just different name sake but in reality the
Canadian and U.S courts both ask for merely a minimum amount of creativity) is a sound
principle which the Court has made a right decision in adopting. This principle will help
promote creativity and further the objective of copyright l
Baxi Upendra; Copyright Law and Justice in India; Vol 28; 1986; pp497-540
Sec 16 of the Copyright Act, 1957 provides No person shall be entitled to copyright or any
similar right in any work, whether published or unpublished, otherwise than under and in
accordance with the provisions of this Act or of any other law for the time being in force
(1916) 2 Ch 601.
499 U.S 340 (1991)
Sec 22 of the Copyright Act, 1957 provides that Except as otherwise hereinafter provided,
copyright shall subsist in any literary, dramatic, musical or artistic work (other than a
photograph) published within the lifetime of the author until 17[sixty] years from the beginning
of the calendar year next following the year in which the author dies
Section 13(1)(a)

A.J Aiyar, Judicial Dictionary, 1998, p 891

P Ramanatha Aiyar, Law Lexicon; 1997, p 1379
Eastern Book Co. v. Navin J Desai (2002) 25 PTC 641 (DB)
The Constitution of USA in Art 1(8) (8) mandates originality as a pre- requisite for copyright
Sec1(1)(a) of the Copyright Act , 1988
AIR 1924 PC 75
Quoted in Nag Book House v. State of WB AIR 1982 Cal 245, at 249
AIR 1934 Lah 777
See, Govindan v. Gopalan AIR 1955 Mad. 391; Bagga v. AIR Ltd. AIR 1969 Bom 302
AIR 1961 Mad 111
AIR 1976 MP 261
AIR 1978 SC 1613
Dhavan Rajiv; Introduction at p vii, Galanter M; Law and Society in Modern India; 1 stEd; Oxford
University press; London; 1993.
(1964) 1 WLR 273
158 F 3d 674 (2d Cir 1998)
(2004) 1 SCR 339 (Canada)
Though the Canadian position says it is a middle path between the two doctrines, it is more or
less the modicum of creativity standard followed in U.S. The U.S position too asks for just a
minimum level of creativity.
It was held that. The derivative work produced by the author must have some distinguishable features
and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the
judgment would not satisfy the test of copyright of an author.
By author? we mean the creator of the work, be it a literary, artistic, dramatic or musical work.
(1900) AC 539.
DAVID NIMMER, at Sec 3.04[B][1]
The full form of de minimis is de minimis non curat lex which means, the law does not concern
itself with trifles.
The person making the work must therefore be an author? in the commonly understood sense
of the word he expresses something he has thought of himself rather than being an author?
in the sense that he expresses a fact.
(1880) 101 US 99
I.A 9823/2005
See generally Sec 17( c) of the Copyright Act, 1957
Supra, Note 30
Prof W.R Cornish; Intellectual Property; 3rd Ed; Sweet & Maxwell; London, p 334-335
Premsai C; Degree of Originality Copyright protection for Primary and Derivative Works;
Manupatra Intellectual Property Reports; Vol 3; 2008; pp17-29; at p27
Ibid, at 27
Agreement on Trade Related Aspects of Intellectual Property Rights
Article 9(1) of the TRIPs Agreement
Article 32 of the Vienna Convention on the Law of Treaties allows preparatory work of an
international instrument to be considered in the interpretation of the instrument. Also, the WTO

Panel has specifically declared that the preparatory material of the Berne Convention is
incorporated into the TRIPs Agreement along with the substantive provisions of the Convention
Article 10(2) of the TRIPs Agreement