Author- Aditya Prakash
Every copyright system in existence requires originality in works protected by copyright. The
most common definition of “original” is “new” or “never done before.” The attribute of being
new or unique separates generated or invented works from duplicates, clones, frauds, or
derivative works. It was written in a unique manner and message. The word “originality” is
widely used as a compliment when complimenting the originality of authors, artists, and
thinkers. In the United Kingdom, the Copyright, Designs and Patents Act of 1988 states that
original literary, theatrical, musical, or artistic works are protected by copyright. Originality is
the primary criterion employed by copyright regimes across the world to determine whether a
given work is entitled to copyright protection. The legal need for originality differs by
jurisdiction. Section 13(1) of the Indian Copyright Act of 1957 states that “original literary,
dramatic, musical, and aesthetic works” are protected by copyright. The Act, on the other hand,
lacks any criteria or mechanism for determining the originality of a work. The court must now
assess the amount of originality required for a work to seek copyright protection.
Because there is no clear-cut, unitary, or unified concept of originality, the following
paragraphs analyse and contrast the many ideas used in various legal systems.
- Sweat of the Brow Test
- Modicum of Creativity Test
- Doctrine of Merger
Sweat of the Brow Test
According to this doctrine, an author gains rights just by using appropriate attention when
creating a work. Significant creativity or inventiveness are not required. The creator is entitled
to these rights as a result of the time and money he committed in creating the work. The author
of a telephone directory or database, for example, must have copyright over the work simply
because they took the time, effort, and financial resources to gather and arrange all the data in
the desired way, not because their compilation of information demonstrates any original
thought or creativity. Before the “modicum of invention” test was applied, Indian courts had
already embraced this technique devised in the United Kingdom. The aforementioned legal
method is known as the “sweat of the brow” approach since it focuses on the work’s labour and
care rather than its originality.
Modicum of Creativity Test
The “modicum of creativity” test established by the US Supreme Court in Feist Publication Inc.
v. Rural Telephone Service has supplanted the “sweat of the brow” idea as the recognised
meaning of “originality.” Instead than focusing on originality, the “sweat of the brow” idea
offers copyright protection based on the inventor’s labour, ability, and financial investment. In
the Feist case, the US Supreme Court fully rejected this idea, declaring that a work must not
only be the result of independent invention but also have a “modicum of creativity” in order to
be regarded unique. The Supreme Court pushed for “creative distinctiveness,” creating a new
criterion to protect inventions based on the bare minimum of ingenuity. According to this
theory, originality occurs in a work if it was created with sufficient intellectual ingenuity and
judgement. Although some level of creativity is essential for copyright protection, it does not
have to be excessive.
Doctrine of Merger
For a long time, India was driven to the “sweat of the brow” ideology. However, the rule of
“originality” observed in India is not as permissive as that observed in England. In Eastern
Book Company v. D.B. Modak, the Supreme Court abandoned the “Sweat of the Brow” notion
in favour of the “Modicum of creation” technique employed in the United States. The question
is whether or not decisions are copyrighted. The concept of “flavour of least requirement of
novelty” was proposed in this case. The Court granted the SCC editors’ edits and contributions
copyright protection. The Court also declared that no copyright could be asserted on court
orders and judgements since they are in the public domain and anybody can use and publish
them.
Conclusion
As illustrated by the many ideologies described above, there is no single, universal concept of
uniqueness. The requirements for originality differ among nations and jurisdictions. The notion
of originality is unclear in copyright law since the law defines it as emanating from the author
and needing labour, skill, and judgement, yet the prevalent perception is that it refers to a “new
creation from nothing.” Aside: The “merger” theory, which handles instances in which the
expression and the concept are judged inseparably united, has denied copyright protection for
works and specific ideas that can be grasped intelligibly in just one, a small number of, or a
highly confined way. This has not only prevented writers from creating monopolies over these
sorts of works, but it has also made it easier for users and readers to obtain these types of works.
Because of the merger hypothesis, facts cannot be the subject of copyright protection.
