Originality Under Copyright Law - Is There Any Definite Standard?
What is Originality?
Originality in copyright works is the sine qua non of all the copyright regimes of the world. The common conception of the meaning of ‘original’ is something that is new, not done before. Originality is the aspect of created or invented works by as being new or novel, and thus can be distinguished from reproductions, clones, forgeries, or derivative works. It is a work created with a unique style and substance. The term "originality" is often applied as a compliment to the creativity of artists, writers, and thinkers. In United Kingdom, s.(1)(1)(a) of the Copyright, Designs and Patents Act 1988 states that copyright subsists in “original literary, dramatic, musical or artistic works.” However, the Act does not state what ‘original’ means. In law, more stress is laid on how an idea had been expressed. There is no definite and single, unified concept of “originality” and there have been different doctrines which have tried to define the concept. These different doctrines have been discussed below.
Sweat of the Brow Doctrine
In the case of Walter v. Lane, [which was subsequently followed in Ladbroke (Football) Ltd. v. William Hill (Football) Ltd] which involved the verbatim reproduction of an oral speech in a newspaper report, the question was whether the work created was copyrightable. Taking into account the amount of labour undertaken by the reporter in taking down and recording the speech, the court opined that the work was copyrightable as a result of such skill and labour. Court said that it is immaterial whether work is wise or foolish, accurate or inaccurate, or whether it has or does not any literary merit. In University of London Press Ltd. v. University Tutorial Press Ltd., the court held word ‘original’ must be construed to mean as originality of expression. There is no requirement of the revolutionary and unprecedented new ideas but the way thought is expressed must be original. In order for a work to gain copyright protection, it must originate from the author – the legal meaning given to ‘original’. In Kartar Singh Giani v. Ladha Singh, the Supreme Court of India, following the approach of English Courts, observed that copyright law does not prevent a person from taking what is useful from an original work with additions and improvements. In many subsequent decisions also, the Supreme Court and the High Courts have laid emphasis on involvement of labour, skill and judgment while granting copyright protection. Later, the Madras High Court, in C. Cunniah & Co. v. Balraj & Co., recognized that the subject dealt with need not be original, nor the ideas expressed to be novel. In Mishra Bandhu v. Shivratan, the court held neither original thought nor original research are necessary for claiming copyright and even compilations such as dictionaries, gazettes, maps, arithmetic, almanacs, encyclopedias etc. are capable of having copyright. The approach of the courts as above is often referred to as the “sweat of the brow” doctrine where more importance is given as to how much labour and diligence it took to create a work, rather than how original a work is. Most common law jurisdictions such as has United Kingdom, Canada, Australia have recognized this doctrine as various times.
Civil Law Approach
Civil law jurisdiction like France and Germany and accord more importance to the rights of the author/composer and have more stringent criteria on originality. These rights are known as the Authors’ rights or droit d’auteur (also German Urheberrecht). In these jurisdictions, the author is the person whose creativity led to the protected work being created, although the exact definition varies from country to country. It is an essential feature of authors’ rights that the object which is protected must arise from the creativity of the author rather than from his or her simple effort or investment: both French and German copyright laws protect “works of the mind. This has led civil law systems to adopt a strong link between the rights (at least initially) and the person of the author. It is relevant to mention that European Union law also follows the Civil Law concept of Authors’ rights and accords a more stringent criteria to “originality”.
Modicum of Creativity Doctrine
In the US, as far back as 1884, the courts have given importance to the creative and subjective contribution of the author. It also laid emphasis on the literary and artistic merit of the work (Burrow-Giles Lithographic Co. v. Sarony). However in Bleistein v. Donaldson Lithographing Co., decided in 1903, the court rejected the notion that originality should be decided with reference to the artistic merits of the work. The grounding criterion for originality in this case was an irreducible, unique personality in the person; in creating a work, even a mere “copy” of an object, the artist projects that irreducible core onto nature, such that the work necessarily bears the imprint of the artist, and no one else. The court did not consider the novelty or creativity of the work, but rather the presence or absence of the putative artist’s personal expression. Thus, the court assumed the originality of any work that is actually produced by an individual which effectively provided the conceptual structure underlying an exceedingly low originality standard. In Alfred Bell & Co. v. Catalda Fine Arts, Inc., decided in 1951, the United States Court of Appeals for the Second Circuit applied the Bleistein standard and held that the Bleistein test can be satisfied even if the author was attempting to perfectly reproduce another work, rather than create an original work of his or her own. If the item exhibits a “distinguishable variation” from another work, the law presumes that such a variation bears the imprint of the author’s person, thereby entitling the work to copyright protection. Even if the variation is accidental, the court held, the copier is still the origin of that variation. In Feist Publications v. Rural Telephone Service (decided by the US Supreme Court in 1991) reflected a marked departure from the earlier approach of the US courts and raised the bar of originality. The court ruled that facts, as they do not owe their origin to the author, cannot be subject matter of copyright and stressed that in addition to independent effort, originality requires a minimum level of creativity. Labour alone is not enough; the essence of creativity has to be present. The US Supreme Court found that the originality requirement for copyright protection cannot be satisfied by simply demonstrating that a work could have been put together in different ways and that there must be at least some minimum degree of creativity for a work to be copyrightable. Since the Feist decision, many common law countries have moved towards applying a similar standard. This new approach is known as the “modicum of creativity” doctrine which requires a minimum level of creative input for securing copyright protection.
Skill and Judgment Test
The Canadian Supreme Court has developed a mid-way approach between the two doctrines. Theberge v. Galerie D’Art du Petit Champlain provided an articulation of the balance to be struck between the rights of the creators and the rights of users. The decision of the Canadian Supreme Court in Theberge was reiterated in Desputeaux v. Chouette and further built upon by the Supreme Court in C.C.H Canadian Ltd. v. Law Society of Upper Canadaby holding that the two positions i.e. the “sweat of the brow” and “modicum of creativity” are extreme positions. The Court preferred a higher threshold than the doctrine of “sweat of the brow” but not as high as “modicum of creativity”. The Canadian standard of copyright is based on skill and judgment and not merely labour. The skill and judgment required to produce the work must not be so trivial that it could be characterized as purely mechanical exercise. This approach is sometimes known as the “skill and judgment” test. The Supreme Court of India in Eastern Book Co. v. D.B Modak departed from the traditional “sweat of the brow” doctrine and followed the Canadian Supreme Court by ruling that mere application of skill, labour and judgment is not sufficient for according copyright protection.
Doctrine of Merger
Apart from the “sweat of the brow”, “modicum of creativity” and the mid-way approach towards the concept of originality under copyright regime, there is also a doctrine of “merger” which propounds that that where the idea and expression are intrinsically connected, and that the expression is indistinguishable from the idea, copyright protection cannot be granted. Applying this doctrine courts have refused to protect the expression of an idea that can be expressed only in one manner, or in a very restricted manner, because doing so would confer monopoly on the idea itself. The case of Baker v. Selden was the first US Supreme Court case to explain this doctrine, holding that exclusive rights to the "useful art" described in a book was only available by patent; the description itself was protectable by copyright. United States courts are divided on whether merger doctrine constitutes a defense to infringement or prevents copyrightability in the first place, but it is often pleaded as an affirmative defense to copyright infringement. The doctrine has also been applied in common law jurisdictions such as India in Chancellor Masters of Oxford v. Narendra Publishing House. The Supreme Court of India reasoned that mathematical questions are expressions of laws of nature. Since language is a limited medium, such laws of nature can be expressed only in a few ways. Hence extension of copyright protection for questions would deny access to ideas that they encompass. This would obviate one of the primary objectives of copyright law i.e promotion of creativity. For these reasons, the Court held that copyright could not be extended to the questions.
The various approaches mentioned above which make an attempt to define the concept of originality show that there is no single, unified concept of originality. The threshold of originality has changed from “sweat of the brow” to “modicum of creativity” and also different jurisdictions have different criteria for originality. The traditional sweat of the brow principle rewarded the labour of the author and prevented another person from benefiting from the fruits of his/her labour. However, in doing so, the courts have gone beyond the limits of copyright law and have consequently, extended protection to works that are not original in their true sense. The sweat of the brow principle is an aberration of the requirement of originality and violates the fundamental axiom of copyright i.e., copyright cannot subsist in ideas or facts. Further, the application of the “sweat and the brow” doctrine bears no resemblance to the everyday understanding and use of ‘original’. 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.
The “modicum of creativity” principle clarified the standard governing the copyright ability of factual compilations in stressing that only those compilations possessing a minimal degree of creativity in the selection, coordination or arrangements of factual data qualify for protection. The principles renders the sweat of the brow doctrine ineffective and what exists is now is modicum of creativity. The “skill and judgment” approach as enunciated in the CCH Canada case essentially seems to be more or less conveying the same principle by asking for a minimum level of creativity while according copyright protection.
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.
#  AC 539
#  1 WLR 273
#  2 Ch 601. C
# (1960) 1 MLJ 53
# AIR 1970 MP 261
# 111 U.S. 53 (1884)
# 188 U.S. 239 (1903)
# 191 F.2d 99 (2d Cir. 1951)
# 499 U.S. 340 (1991)
#  2 S.C.R. 336
#  1 S.C.R 178
#  1 S.C.R. 339
#  1 SCC 1
# 101 U.S. 99 (1879)
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