Copyright is the exclusive right which is granted to the author or artist for their works which is created by their intellect. This rights protects the labour or skill put in by the creator or author which in turns encourages the creator or authors to create original work as they are getting rewarded with exclusive right.

Originality is sine qua non of the copyrighted work. Copyright is only available for the works which are original that means work should be the creation of author’s own intellect. Under Section 13(1) of the Indian copyright act, 1957 the copyright subsists in original literary, dramatic, musical and artistic works. Originality does not means that the work should be novel or should be the expression of original and inventive thought but it means that work should not be copied from another work. The Indian Copyright act fails to define what is original is not defined under the act and hence it is upon the courts to determine the originality of the work. Different courts all over the world adopted different doctrines to determine the originality of the work.

Courts have developed different doctrines for analyzing the originality of the work which are –

 Sweat of the brow doctrine

This doctrine focuses upon the labour, skill and diligence put in by the creator rather than focusing upon the originality aspect. This doctrine was used in United Kingdom in the case of Walter v. Lane[1] where reporters took shorthand notes of the speech and published them into the newspaper, the court held that it was a copyrightable work as they used their skill and labour.

Later in the case of University of London Press v. University Tutorial press[2] the doctrine of Sweat of brow was used where the question was regarding the mathematics question paper that were created by university London press but University tutorial press collected the question papers of the university of London and published them into their new book. It was contended that new book was infringing the copyright of the question paper created by the professors. In this case university tutorial press argued that the question paper was existing body of knowledge and hence cannot be copyrighted. The court held that the formulation of questions into a question paper requires the exertion of effort and skill and this qualifies the question paper for protection under copyright law. The Court held that originality does not mean that the work has to be original; it only means that some effort has to be put in for it to be deemed as original.

In the case of Burlington home shopping pvt. Ltd. v. Rajesh Chibber[3] Indian courts applied the precedent of University of London press case and held that skill and labour is invested in creating a database so it would be an original work.

Modicum of creativity doctrine

This doctrine was developed in USA by the Supreme court in the case of Feist publication, Inc v. Rural telephone service Co.[4] where the courts gave importance to both the creative and subjective contribution of the author, the court rejected the doctrine of sweat of the brow doctrine and held that work must have “Modicum of Creativity”. In this case, the Court held that the contents of a telephone directory would not amount to an original work since there existed no creativity in the same.

Indian Stance (Modicum of Creativity)

In the case of Eastern Book Company v. D.B. Modak[5] the Supreme Court of India discontinued the ‘Sweat of the Brow’ doctrine of UK law and shifted to a ‘Modicum of Creativity’ doctrine of the US. In this case publisher Supreme Court Cases (SCC) filled a suit against the software for  which published the notes from the SCC. The respondents contended that Judicial decision is a government document and is present in public domain and hence copyright cannot be granted but the court held that SCC used skills and creativity in creating their report and they were not merely the copy of judicial decisions. The court held that in case the respondents would have copied the judgment only then it would not be an infringement but they copied the head notes, cross references etc so it is clear infringement. The Court held that mere application of skill, labor, and judgment is not sufficient for copyright protection. It is the skill and judgment required in a work that should be the determining factor for originality under copyright. The concept of “Flavour of the minimum requirement of creativity” was developed.

The person concerned with copyright should not worry about his copyright infringement because the copyright laws in India are strong, strict and powerful. The copyright protection enjoyed by a owner is broader not only in the traditional sense but also in the modern sense. This article mentions various doctrines of originality as well as the concepts from which we can determine that the term "originality" does not have a specific meaning but has several arenas with which courts determine originality in matters of a particular subject. Originality is therefore understandable differently in different countries in different jurisdiction.

To understand originality in copyright, there is a conflict because on the one hand, originality means novelty in creating an artistic work from scratch and on the other hand, original ideas of the author as well as his skills and his work. Whereas on a solid note, the doctrine of merger where the artist's expression is considered very valuable that is fused with an idea or thought prohibited copyright protection as it could only be used in a limited and restrictive way. The prohibition of the "merger" doctrine has helped several authors and artists to have a monopoly on their type of works and these works are now easily accessible to the general public. This doctrine also provides copyright protection against facts of necessary subject.

[1] Walter v. Lane, [1990] AC 539.

[2] University of London Press v. University Tutorial press, [1916] 2 Ch. 601.

[3] Burlington home shopping pvt. Ltd. v. Rajesh Chibber, 1995 PTC (15) 278.

[4] Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).

[5] Eastern Book Company & Ors. v. D.B. Modak & Anr., AIR 2008 SC 809.

About the Author: This post is prepared by Shashank Kesarwani, Law Student from UPES, Dehradun. He can be reached at

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