Concept of Originality and Sweat of the Brow In Copyright Law

The originality

The word ‘original’ does not imply that the work must be the expression of original and inventive thought. Originality with regard to the expression of the thought doesn’t require novelty of the expression. The Act only requires that the work should not be copied from another work. this suggests that the work should originate solely from the author. Originality is that the essential yardstick employed by the copyright regimes within the globe to gauge the supply of copyright protection to a specific work. The edge of originality varies from jurisdiction. Section 13(1) of the Indian Copyright Act states that copyright subsists in “original literary, dramatic, musical and artistic works.” However, the Act fails to produce the definition or test for working out the original work.

The sweat of The Brow

Consistent with this doctrine, an author gains rights through simple diligence during the creation of some work. Substantial creativity or “originality” is not required. The creator will be entitled to the rights on account of efforts and expense put in by the creator within the creation of such a bit. for instance, the creator of a phonebook or a database must have a copyright over the merchandise not because such a compilation of knowledge showcases any creativity, or the author has expressed anything original, but merely because of the hassle, time and money invested by the creator to collect and organize all the data during a selected manner. And any such compilation should be the work of the author himself only and must not be copied from another source.

Minimal Creativity Approach-

The concept of “originality” has undergone a paradigm shift from the “sweat of the brow” doctrine to the “modicum of creativity” the standard that was put forth in the Feist Publication case by the Supreme Court. The doctrine of “sweat of the brow” provides copyright protection on the basis of the labor, skill and investment of capital put in by the creator rather than the originality. In Feist’s case, the Supreme Court totally negated this doctrine and held that so as to be original a work must not only be the merchandise of independent creation, but it must also exhibit a “modicum of creativity”. The Supreme Court prompted ‘creative originality’ and laid down the new test to guard the creation on the basis of minimal creativity. This doctrine stipulates that originality subsists during a piece where an adequate amount of creativity or intellectual creativity and judgment has gone into the making of that employment. the quality of creativity needn’t be high but a minimum level of creativity should be there for copyright protection.

In Macmillan & Co. V. K and J Cooper, it had been held that if on any material someone by the utilization of the labor, skill and therefore the capital of 1 man which must not be appropriated by the another not the elements, not the raw materials upon which the labor and skill and therefore the capital of the primary had been expanded.

In Eastern Book Company V. DB Modak, the Court held that each author should show that the actual derivative work should be quite just a mere copy of the original work. Moreover, they should have independent labor, skill, and capital of the creator or author for getting copyright protection of such derivative work under the Copyright Act, 1957. Further, it absolutely was also stated by the Court that the literary neighborhood of the work has nothing to undertake and do with the copyright because the part which is evaluated is that the talents employed should be substantial and not trivial. The Court also directed that even for internal references, the respondents weren’t allowed to use the paragraphs made by the Appellants in their copy-edited version. Respondents were also not allowed to use the editor’s judgement, prepared by Appellants, associated with the opinions expressed by the judges through phrases like “partly dissenting,” “concurring,” “discursive,” etc. supported reported judgements in SCC. The derivative work is that the first work of Appellants, which they need to spend independent skill, labor, and capital in preparing it, and thus it can’t be considered as a mere copy of the primary Judgement. Secondly, judges had analyzed that the changes made by the Appellants were substantial. Thirdly, judges had applied the principle of “Sweat of the brow,” which suggests that the author deserves a reward for utilizing his/her skill. Fourthly, the Court further referred to the principle of a minimal degree of creativity, i.e., there should be a minimum degree of creativity in derivative work to point out that the copy-edited version of the Judgement isn’t an original work.

In Fiest Publications Inc. v. Rural phone service Co., the Supreme Court for the first time squarely addressed the problem of the degree of creativity necessary to sustain copyright during a compilation of factual material. On the immediate issue, the Court held that the directory which contains an alphabetical list of telephone subscribers, in conjunction with their towns and telephone numbers didn’t satisfy the constitutional standard of originality necessary for copyright protection. In doing so, the Court engaged during a fundamental re-examination and reformulation of the concept of originality that is applicable to all the works of authorship, not merely that consisting of compilations of factual material. Feist provides a replacement basic start line that promises to possess a broad impact on not only the concept of originality but on the underlying jurisprudence of copyright.


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