India: Sweat Of The Brow: An Approach In Contrast To Minimum Creativity

Last Updated: 4 November 2013
Article by Himanshu Sharma

Most Read Contributor in India, September 2016

As per copyright law, an idea is not copyrightable instead it is the expression of idea on which a copyright can be claimed. As per section 13 of the copyright Act, 1957, a copyright subsists in original, literary, dramatic, musical, artistic, cinematography and sound recording subject to the exceptions provided in Sub-sections (2) and (3) of Section 13.

For copyright protection, all literary works have to be original as per Section 13 of the Act. Broadly speaking, there would be two classes of literary works:

(a) Primary or prior works: These are the literary works not based on existing subject-matter and, therefore, would be called primary or prior works; and

(b) Secondary or derivative works: These are literary works based on existing subject-matter. Since such works are based on existing subject-matter, they are called derivative work or secondary work.

The term original is not defined any where in the Act hence the interpretation for the same would be based on the judicial pronouncement of the term by the Courts. However the idea of originality of the work has been changing with the passage of time.

Initially it is considered by courts on various occasions that a derivative work need not be original instead it should be expressed in a completely new way in order to be copyrighted. A person can claim a copyright over a work which cannot be novel in nature but has been expressed differently. The protection for this kind of work is provided according to the doctrine of 'Sweat of the Brow' under which an author gains rights through simple diligence during the creation of a work, such as a database, or a directory. Substantial creativity or "originality" is not required. The Delhi High Court judgment in the case of

Burlington Home Shopping v. Rajnish Chibber, where it was held that a compilation may be considered a copyrightable work by virtue of the fact that there was devotion of time, labour and skill in creating the said compilation.

This interpretation of originality was based upon the decision of the Privy Council in the case Macmillan Company v. J.K. Cooper, wherein it was laid down that copyright over a work arises and subsists in that work due to the skill and labour spent on that work, rather than due to inventive thoughts.


In the recent times the courts has deviated from the doctrine of Sweat of Brow rather than considering only the skill and labour spent on the work the courts has started to take in to consideration the original thoughts of the author put in the work for considering the same for the copyright protection.

In Feist Publications Inc. v. Rural Telephone Service Co. Inc , the United States Supreme Court held that the sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. The requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. The Court further held that no one claim originality as to the facts. This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence. Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original. Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. The Court goes on to hold that the primary objective of copyright is not to reward the labour of authors, but to promote the progress of science and useful arts. To this end, copyright assures authors the right to their original expression but encourages others to build freely upon the ideas and information conveyed by a work. Only the compiler's selection and arrangement may be protected; however, the raw facts may be copied at will. The Court rejected the doctrine of the "sweat of the brow" as this doctrine had numerous flaws, the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement - the compiler's original contributions - to the facts themselves. A subsequent compiler was not entitled to take one word of information previously published, but rather had to independently work out the matter for himself, so as to arrive at the same result from the same common sources of Information. "Sweat of the brow" courts thereby eschewed the most fundamental axiom of copyright law that no one may copyright facts or ideas. The "sweat of the brow" doctrine flouted basic copyright principles and it creates a monopoly in public domain materials without the necessary justification of protecting and encouraging the creation of writings by authors.

Similarly the Supreme Court of India in case of Eastern Book Company v. D.B. Modak held that "collection of material and addition of inputs in the raw text does not give work a flavour of minimum requirement of creativity, as skill and Judgment required to produce the work trivial. To establish copyright, the creativity standard applied is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required - Selection and arrangement can be viewed as typical and at best result of the labour, skill and investment of capital lacking even minimal creativity, which does not as a whole display sufficient originality so as to amount to an original work of the author. To claim copyright, there must be some substantive variation and not just a trivial variation, not the variation of the type where limited ways of expression available and author selects one of them. Inputs put by the Appellants in the copyedited Judgments do not touch the standard of creativity required for the copyright. However inputs and task of paragraph numbering and internal referencing requires skill and Judgment in great measure having a flavour of minimum amount of creativity. Further putting an input in form of different Judges' opinion shown to have been dissenting or partly dissenting or concurring, etc. requires reading and understanding the questions involved Appellants have a copyright, which nobody can utilize"

The doctrine of Sweat of the Brow which has been an integral part in regards to the protection to a derivative work earlier has now been looked upon from a different perspective wherein the courts has taken into consideration the minimal creativity put in by the creator in regards to the creation of work rather than taking into consideration only labour, skill and investment of capital.


The derivative works which are in the contemporary times have a major part of the services industry, are looked from completely different point of view in comparison to the classical approach. The work need to have some creativity attached to it in order to be eligible for the copyright protection. Classically the work was only judged on the basis of labour, skill and investment of capital put in by the creator. As per modern approach in addition to these elements the work is required to have some creativity attached to it which in itself differentiates work from any other work.


1. 61 (1995) DLT 6

2. (1924) 26 BOMLR

3. MANU/EG/0440/1991,

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