Doctrine of 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:

1. 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.

2. Modicum of Creativity

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.

3. Skill and judgement 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.

4. 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.

Not all ideas can be expressed creatively. Often, there are ideas that can be expressed
in only a particular way. In such a case, copyrighting the expression would amount to
the copyrighting of the idea that would in turn stall the free flow of ideas.
In every such case where the expression is necessary to effectively communicate an
idea, courts apply the Merger Doctrine to find that no copyright subsists. The Merger
Doctrine primarily seeks to address the point where ideas and expressions converge.
An important case in this regard is that of Morrisey v. Proctor & Gamble Co. This
case primarily dealt with a competition/contest and whether its rules are a subject for
copyright. The court held that the idea of the contest is merged with the rules.
Copyrighting the rules would amount to copyrighting the idea of the contest and
therefore the rules are not a subject matter of copyright.

 Idea-expression dichotomy

The idea-expression dichotomy poses a major challenge in distinguishing

between the two. The absence of a statutory provision necessitates reliance
on several case laws that attempt at chalking out a clear distinction
between the two.

An important case in this regard is that of RG Anand v. Deluxe Films.

In this case the SC had held that “the copyright doesn’t subsist in Idea
but its subsists in expression of the Idea” (This case is also a landmark
case in the context of deciding copyright in case of movies or
cinematographic works).

The plaintiff in this case, was the author of a play called Hum Hindustani.
In 1954, the defendant Mohan Sehgal sent a letter to the plaintiff
expressing his desire to make a movie based on the play. The plaintiff and
the defendant met and discussed the entire play. The defendant did not
commit anything, but the plaintiff later came to know that the defendant
released a movie titled New Delhi. After watching the movie, the plaintiff
was of the opinion that it is based on the story of his play. So he filed a suit
against the defendant for permanent injunction and damages. Both the
District Court and the High Court ruled against the plaintiff on a finding of
the facts. The case finally reached the Supreme Court of India.

The Supreme Court held that the movie cannot be considered to be an

infringement of the script of the play. The reason it gave was that though
the idea behind both the stories was the same, the manner in which both
had been expressed were vastly different from each other. Therefore it
cannot be held to be copyright infringement.

More recently, in the case of Mansoob Haider v. Yashraj Films, the

Bombay High Court reiterated on the fact that ideas are not copyrightable.
The residue left behind after filtering out dissimilarities is the idea which is
not copyrightable and similarity of ideas does not lead to copyright
infringement.