Doctrine of Originality by Snigdha Mohapatra at LexCliq

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 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. There is no definite and single, unified concept of “originality” and there have been different doctrines that have tried to define the concept. These different doctrines have been discussed below:

1. Sweat of the Brow Doctrine

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.

2. Modicum of Creativity

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 the 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 work could have been put together in different ways and that there must be at least some minimal 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.

3. Skill and Judgement Test

The Canadian Supreme Court has developed a mid-way approach between the two doctrines. Theberge v. Galerie D’Art du Petit Champlain provided an articulation of the balance to be struck between the rights of the creators and the rights of users. The decision of the Canadian Supreme Court in Theberge was reiterated in Desputeaux v. Chouette and further built upon by the Supreme Court in C.C.H Canadian Ltd. v. Law Society of Upper Canada by holding that the two positions i.e. the “sweat of the brow” and “modicum of creativity” are 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. The skill and judgment required to produce the work must not be so trivial that it could be characterized as a 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.

4. Doctrine of Merger

Apart from the “sweat of the brow”, “modicum of creativity” and the mid-way approach towards the concept of originality under copyright regime, there is also a doctrine of “merger” which propounds 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 a monopoly on the idea itself.

Conclusion

The various doctrines mentioned above show that there is no single, unified concept of originality. Different jurisdictions of different countries have different criteria for originality. 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. On a tangential note, the doctrine of “merger”, which deals with scenarios where the expression is considered to be inextricably merged with the idea, has barred copyright protection to those works/particular ideas which can be expressed intelligibly only in one or a limited number of ways or in a very restrictive manner.

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