COPYRIGHT MADE EASY
CME [Student Series]
LW 1-16 “Quantum of Originality” in Creative Authorship.
QUANTUM OF ORIGINALITY
For the requirement of originality the criteria that follows is – one cannot be an author unless he originates something and it’s independently created. In general , Copyright is to prevent unauthorised copying of “certain material forms of expression” but it does not prevent use of the information, thoughts or emotions expressed in the copyrighted work.
Even though a work is demonstrated as independent creation but it should have a minimal amount of creative authorship. Any distinguishable variation of any prior work will constitute a sufficient quantity of originality.
Very interesting judgement in a British case ( Sawkins v. Hyperion Records Ltd) being quoted that – A work may thus be “completely rubbish and utterly worthless but Copyright protection may be available for it, just as it is for the great masterpieces of imaginative literature, art and music”. Small or big, good or bad etc are not the criteria. Essentially, the standard is “de minimus” but it cannot be taken as a rule and it can vary on case to case basis. However, for basic understanding following tests of originality have been developed by various judicial pronouncement across the world:
Under Sweat & Brow doctrine , the author is entitled to protect the creation of work such as database or directory because his skill , time , energy and labour have been invested. Copyright protection is given on the basis of the labour , skill and investment of capital put in by the creator and not on originality. Here substantial creativity or originality is not required. Therefore, original skill or labour in execution of work is required and not the originality of thought that is required. These all are well established principle from the beginning of 19th century in the case University of London Press v. University Tutorial Press Ltd. Theory of sweat & brow was observed in India in many cases but prominent being in the matter of Burlington Home shopping v. Rajnish Chibber 61, (1995) DLT 6.
By introducing new doctrine “modicum of creativity” , developed by the US Courts in Feist Publications Inc v. Rural Telephone service company Inc (1991) , the US Supreme Court held that in order to be a original, a work must not only have been the product of independent creation but it must also demonstrate a ‘modicum of creativity”. The essence of this doctrine is that originality subsist in a work where sufficient amount of intellectual creativity and judgement has gone into the creation of that work. The standard of creativity need not to be very high but at-least some minimum level of creativity is sufficient for Copyright protection.
Skill & Judgement test is formulated by Supreme Court of Canada in the matter of CCH Canadian v. Law Society of Upper Canada and observed as given herein below :
“…….. To be original under the Copyright Act the work must originate from an author , not be copied from another work , and must be the product of an author’s exercise of skill and judgement. The exercise of skill and judgement required to produce the work must not be so trivial that it could be characterised as a purely mechanical exercise. Creative works by Definition are original and are protected by Copyright, but creativity is not required in order to render a work original. The original work should be the product of an exercise of skill and judgement and yet it is a workable yet fair standard…….. “
Under this doctrine the essence chosen is the middle path and the court preferred a higher threshold comparing to “sweat and brow” theory but lower to “modicum of creativity”. Therefore, Canadian standard of Copyright is based on the fundamentals of skill and judgement and not merely labour and this in between analogy is followed by many Indian Courts lately in pronouncing various judgements.
Enumerated herein below the points that are to be considered importantly :
- The sine qua non of Copyright is Originality.
- Precondition of Copyright is that ,work must be produced independently and not copied from another person. Which means in order to establish a valid Copyright, it becomes important that the work should firstly be an independent work of the author and should not be merely copied.
- Such work to be created by the exercise of skill and judgement of the author .
- Similarly, such efforts should not be a trivial in nature and to see that it is not an exercise of the mechanical function.
- Variation must be substantial and the degree of originality should also be quantitative in nature.
Ref : Above points are more elaborated in Krishna Harianai & Anirudh Harianai , Analysing “Originality” in Copyright Law : Transcending Jurisdictional Disparity and Hailshree Saksena , Doctrine of sweat and brow.
“Originality” subject referred in below mentioned cases by the Honourable Courts in India. This list can be exhaustive but considered only few matters that are important.
- Diljit Titus v. Alfred Adebare (2006)
- Reckeweg & Co GmbH v. Adven Biotech Pvt. Ltd (2008)
- Emergent Genetics India Pvt. Ltd v. Shailendra Shivam & Others (2011)
- G Anand v. Delux Films & Others AIR 1978 SC 1613
Importantly, whether a Copyright work meets the quantum of originality or not , it should considered and evaluated as a whole and not on piece meal. There is no guiding principle as to the quantum of labour, skill or judgement required. It’s purely a question of fact of a particular case.
# Further , for academic pursuit and for practicing lawyers reading the above mentioned cases / reference books are important for in-depth knowledge but for examination purpose it’s advisable to limit the understanding to fundamental points only.