India: Originality Under Copyright Law – What Do The Courts Say?

Last Updated: 24 October 2016
Article by Intepat Team

Copyright is the right which a person acquires in a work, which is the result of his intellectual labor. It is a special type of intellectual property that aims at protecting the fruit of a man's labor or skill from being misappropriated by someone else. It seeks to encourage authors, composers, and artists to create original works by rewarding them with the exclusive right for a specified period to reproduce the works for publishing and selling them to the public.

Now, S 13 of the Indian Copyright Act lists the works in which copyright subsists. It states as follows:

Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say-

Original literary, dramatic, musical and artistic works.

Cinematographic films, and

Sound recordings

What is meant by originality?

The Indian Copyright Act seeks to protect 'original' literary, dramatic, musical and artistic works. The question that arises here is- what is meant by originality?

The word 'original' does not mean that the work must be the expression of original and inventive thought. Originality with respect to the expression of the thought does not require novelty of the expression. The Act only requires that the work should not be copied from another work. This means that the work should originate solely from the author.

Though this seems difficult to comprehend, several judicial decisions have laid down the parameters of what would be deemed to be original, especially with regard to literary works.

The first case in this regard is University of London Press Ltd v. Tutorial Press Ltd. In this case, the question arose with regard to certain mathematics question papers that were formulated by the University of London. University Tutorial Press was engaged in the work of collecting question papers of the University of London and publishing them in the form of a book. Now, the University of London claimed that such act was violating the copyright of the professors employed with them and therefore Tutorial Press should desist from the publication of the question papers. On the other hand, Tutorial Press claimed that the questions of the question paper were drawn from an existing body of knowledge; hence there existed no originality. As a consequence, they held that the college's claim that there exists copyright in the question papers holds no water. The Court, however, held that despite the fact that the questions have been drawn from an existing body of knowledge, 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.

This was further reiterated in the case of Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber. In this case, the dispute was whether the customer database collected by the company would amount to an original work and therefore qualify for a copyright protection. The Indian courts, relying on the University of London Press case held that since skill and labor had been invested in the preparation of the database, it would amount to an original work. The Court held that the 'sweat of the brow' should be the threshold for determining the originality of a work.

However, the scenario changed with the case of Fiest Publications Inc. v. Rural Telephone Service Co. In this case, the contents of a telephone directory were brought under scrutiny to determine whether they would qualify to be a subject of copyright protection. The Court, diverting from the established threshold of 'sweat of the brow' held that it is the 'modicum of creativity' that should be the determining factor in determining the originality of the work. The Court held that there should exist at least minimal creativity in the work for it to warrant copyright protection. 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.

The stance of the Court changed in the case of DB Modak v. Eastern Book Company. In this case, the appellant was the publisher of a well-known journal known as Supreme Court Cases. The respondents, in this case, launched a software program which contained notes from the SCC. They were sued under a claim of infringement and unfair competition. The respondents, in this case, held that since Government documents are not copyrightable, this would apply to judicial decisions as well. Therefore, they claimed that the act of the respondents would not amount to an infringement. The Court held otherwise and said that despite the fact that the respondents were merely copying the judicial decisions from the petitioner, they had failed to realize that there were some skill and creativity used in the formulation of SCCs. The SCC reports were not a mere copy of the judicial decisions. There were additions made to it in the form of headnotes, cross references, divisions of paragraphs etc. Therefore if the respondents had only copied the judicial decisions, it would not amount to infringement. However, they had copied the cross references, headnotes and other additions as well. Therefore it was a clear violation of the plaintiff's copyright. 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 content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.