The American Doctrine of Minimal Degree of Creativity
A stark contrast to the English doctrine of ‘Sweat of Brow’ is the American approach of
‘Minimal Creativity’ that grants copyright protection to a work provided it has been
independently created and displays some amount of creativity in it. In USA the meaning of
requirement of “originality” was taken up by Supreme Court in Feist v. Rural Tele Services1 and
it established two elements namely:
i) independent creation and
ii) creativity/material variation.
Facts of Case
In this case the respondent, Rural Telephone Company (hereinafter Rural) was a certified public
utility company providing telephone services to several communities in Kansas. In fulfilment of
a State imposed regulation, it published a typical telephone directory, consisting of white and
yellow pages. Feist Publication Inc. (hereinafter Feist) was a publishing company specializing in
publishing area wide telephone directories that were much more expansive than those published
by Rural. Feist approached Rural to allow it to license its white page listings so that the former
could publish a directory covering 11 different telephone service areas, the latter refused. Feist
then extracted the listings it required from the directories of Rural without its consent. On the
question whether Rural was entitled to copyright protection in its telephone directories, the US
Supreme Court held that Rural’s white pages were not entitled to copyright, and therefore Feist’s
use of them did not constitute infringement.
It was said that Article 1(8) of the US constitution mandates originality as a prerequisite for
copyright protection. “The constitutional requirement necessitates independent creation plus a
medium of creativity.” Since facts do not owe their origin to any author they cannot be treated
as original for a claim of copyright protection. A compilation of facts may possess the requisite
originality, as an author individually chooses which fact to include or not so that they are
effectively placed. In such a case copyright extends to only those components that are original to
an author.
1 499 US 340 (1991)
Further in Matthew Bender’s case,2 the United States Court of Appeals, observed that copyright
protection cannot be granted to both derivative works and compilations unless, they display
sufficient amount of originality. Originality requires only that the author makes the selection or
arrangement in such compilation independently such that it displays some minimal level of
creativity. Thus, to support a claim for copyright there must be at least some substantial variation
and not a mere trivial variation.
A perusal of the above-mentioned cases suggests that the American courts have adopted a more
stringent approach to determine originality in a work claiming copyright protection. It brings in
the concept of ‘creativity’ which mandates some amount of ‘newness’ in a work. In comparison
to the English doctrine of ‘Sweat of Brow’, the American doctrine of ‘Minimal Degree of
Creativity’ requires a higher degree of originality for the grant of copyright.
6.3.3 Paradigm Shift from the “Sweat of the Brow” doctrine to the “Modicum of
Creativity” in India
The Supreme Court of Canada, in the matter of CCH Canadian Ltd v. Law Society of Upper
Canada3, has taken notice of the competing views on the meaning of ‘original’ in copyright law.
While some courts have required original to mean as one which has originated from an author
and is more than a mere copy of a work, others have required that a work to be original must be
creative.
On consideration of various cases, it was held by the Supreme Court of Canada that to be original
under the Copyright Act the work must originate from an author, not 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 characterized as
a purely mechanical exercise”. Although creative works can be defined to be original and are
protected by copyright, but creativity is not a prerequisite to render a work original. An original
work being a product of skill and judgment is a workable and fair standard to determine
originality.
It was further observed that the ‘sweat of the brow’ approach to originality is too low a standard
which shifts the balance of copyright protection too far in favour of the owner’s right, and fails
2 Matthew Bender & Co. v. West Publishing Co. 158 F. 3d 674 (2nd Cir. 1933)
3 2004 (1) SCR 339 (Canada)
to protect the public’s interest by disseminating intellectual works. On the other hand, the
creativity approach of originality is too high. It implies that something must be novel or non-
obvious- concepts that are better associated with patents rather than copyright. A standard which
requires the exercise of skill and judgement in the production of a work avoids both these extreme
positions and provides a workable test for grant of copyright. Such a test balances the interests
of both contenders in copyright law i.e. general public as well as authors.
