India: Doctrine Of Originality In Copyright

Last Updated: 1 May 2019
Article by Madhu Noonia


Originality is the basic yardstick used by the copyright regimes in the world to evaluate the availability copyright protection to a particular work. The word "Originality" in civil law countries consider as an author's own intellectual creation. Through originality doctrine, copyright is safeguarding the public domain so that a person cannot claim for an expression. Section 13(1) of the Indian Copyright Act 1957 states that copyright subsists in "original literary, dramatic, musical and artistic works." However, the Act fails to give any definition or test to determine originality of a work. This leaves the court with the duty to decide the amount originality required for a work to claim copyright protection. Two tests are to be followed to decide the "Originality" of a work:-

  1. Non- copying requirement (completely objective test)
  2. Threshold/Degree of originality(varies from court to court)

There are different doctrines used in different jurisdictions of law, which are analyzed following:-

UK's 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 Pressthe 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.

USA's Modicum of creativity doctrine

USA has the oldest and the most developed Copyright laws in the world. The courts have given importance to both the creative and subjective contribution of the authors since the late 17th century. In Feist Publications, Inc. v. Rural telephone Service Co.3 case, the US Supreme Court

totally negated this doctrine and held that in order to be original a work must not only have been the product of independent creation, but it must also exhibit a "modicum of creativity". This doctrine stipulates that originality subsists in a work where a sufficient amount of intellectual creativity and judgment has gone into the creation of that work. The standard of creativity need not be high but a minimum level of creativity should be there for copyright protection. The major question of law was whether a compilation like that of a telephone directory is protected under the Copyright law? The court held that the facts like names, addresses etc are not copyrightable, but compilations of facts are copyrightable. This is majorly owing to the unique way of expression by way of arrangement and if it possesses at least some minimal degree of creativity, it will be copyrightable. The Court held that Rural's directory displayed a lack of requisite standards for copyright protection as it was just a compilation of data without any minimum creativity, which was a requirement for copyright protection. Hence, Rural's case was dismissed.

Doctrine of merger in India

India strongly followed the doctrine of 'sweat of the brow' for a considerably long time. However, the standard of 'originality' followed in India is not as low as the standard followed in England. In Eastern Book Company v. D.B. Modak, where the Supreme Court discarded the 'Sweat of the Brow' doctrine and shifted to a 'Modicum of creativity' approach as followed in the US. The dispute is relating to copyrightability of judgements. The notion of "flavour of minimum requirement of creativity" was introduced in this case. The Court granted copyright protection to the additions and contributions made by the editors of SCC. At the same the Court also held that the orders and judgments of the Courts are in public domain and everybody has a right to use and publish them and therefore no copyright can be claimed on the same.


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. This has not only helped preventing the authors from gaining monopoly over such kind of works have, it has also made such works easily accessible to users and readers. The merger doctrine also prevents facts from being the subject- matter of copyright protection.


1 [1900] AC 539

2 [1900] AC 539

3 499 U.S. 340 (1991)

4 (2008) 1 SCC 1

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.

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