By, Kopal Chaturvedi



Copyright or the author’s right is a legal denomination used to demonstrate the rights that establishers or creators have over their literary and artistic works. In simple words, it is a right to copy. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.[1] It is a profusion of which includes rights of reproduction, verbal memorandum to the public, adaptation, and translation of the work. The Copyrights Act of 1957 is to protect the creativity of the establishers. The only yardstick to determine whether a person is warranted to copyright protection is originality in expression.[2] The problem arises while interpreting the term ‘originality’ since it is not defined anywhere. A convincing denotation can only be inferred from judicial interpretations, legal principles, and underlying tests.

The Initial Quandary

The Copyright Act protects the expression and not the content per se.[3] According to Section 13 of the Copyright Act, 1957[4], ‘copyright shall subsist throughout India in original literary, dramatic, musical and artistic works.’ What amounts to original varies from case to case. The Privy Council, in the case of Macmillan & Company Ltd. v. Cooper[5], assented to the principle laid down in the University of London Press v. University Tutorial Press [6]according to which it is not the inventive or original thought which gets protection under the Copyrights Act, rather the skill and labor spent on the same which gets the shielding. This is famously called the ‘Sweat of the brow’ theory. This theory was adopted in India in the Delhi High Court judgment of Burlington Home Shopping v. Rajnish Chibber[7]. The dispute here was regarding the copyright claim on the customer database collected by the company as to whether it will qualify as an original piece of work. The court answered in affirmative since the work compilation requires devotion of time, labor, and skill and the aforementioned principle applies. The Court held that the ‘sweat of the brow’ should be the threshold for determining the originality of a work. In Kartar Singh Giani v. Ladha Singh[8], the Supreme Court of India observed that the copyright law allows a person to make additions and improvements to the original work. The main focus of the judiciary has always been on the amount of hard work put in by the person even where it involves an amendment to the primary work.

Later, the Madras High Court, in C. Cunniah & Co. v. Balraj & Co., [9]removed the mandatory requirement of originality and novelty on work and expression. Even in the case of Mishra Bandhu v. Shivratan[10], it was held that neither original thought nor original research is necessary for claiming copyright and even compilations such as dictionaries, gazettes, maps, arithmetic, almanacs, encyclopedias, etc. are capable of having copyright. This approach of the courts is the direct application of the sweat of the brow principle where the ultimate focus lies on the industriousness and diligence of the person.

A Change in Outlook

The case of Walter v. Lane[11], subsequently followed in Ladbroke Ltd. v. William Hill Ltd[12] involved the verbatim publication of an oral speech in a newspaper. Considering the amount of labor and strain put in by the reporter which amounted to performance of skill, the court delivered the judgment in affirmative. According to the judge, it is immaterial whether work is wise or foolish, accurate or inaccurate, or whether it has or does not any literary merit. In fact, in the case of Indian Express Newspapers (Bombay) Pvt Ltd v. Jagmohan[13], it was held that even where the author uses his ideas, information, natural phenomena and events spending all his skill, labor, capital, judgment and literary talents it will still not become a subject of copyright. So, there exists no copyright in news or information. However, this may get protection where the writing of stories or features, the selection and arrangement of the material require a lot of devoted skill and labor.

Another concept of modicum of creativity was introduced in the case of Feists Publication v. Rural Telephone Services[14], according to which the piece of work must be created by the author independently. Such a creation should possess at least some creativity to make it eligible for claiming copyright. This case reflected a marked departure from the earlier approach of the US courts and raised the bar of originality.

The work must not only be created independently but also possess a minimum level of creativity. This is a quintessential element to be fulfilled since the mere differential demonstration of work cannot amount to the original creation of the same. Post this judgment, many countries have started adopting this theory.

On the Fence?

The Indian Supreme court in Eastern Book Company v. D.B. Modak [15]adopted a midway approach that fell between the ‘sweat of the brow’ doctrine and the ‘minimum modicum of creativity’. Applying the principle of Canadian Supreme Court in CCH Canadian Ltd. v. Law Society of Upper Canada[16] the court said that the exercise of skill and judgment must not be “so trivial that it could be characterized as a purely mechanical exercise” and must be “more than a mere copy of another work. Also, creativity is not the only yardstick to measure the originality of work. According to this middle way doctrine, the term ‘original’ must be an outcome of an act of skill and judgment, where ‘skill’ is the use of one’s knowledge, developed aptitude or practiced ability in producing the work” and ‘judgment’ is ‘the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work.’ Also, ‘original’ means anything that originates from the author. The court further highlighted that sweat of the brow approach was not a very appropriate method as it only favored the owner against the public interest. The modicum of creativity standard was too high because creativity meant that creation must be ‘novel’ or ‘non-obvious’ which is more of a patent concept than copyright.  In the case of Schweppes Ltd v. Wellingtons Ltd[17], originality of the label of Schweppes, a water drink was in question. A parody of the name was created in form of ‘Schlurppes’ thereby completely copying the style and coloring and differing only in the trademark name. The court favored the petitioner and protected Schweppes declaring them to be the original inventor of the work.

As expressed in the case of University of London Press Ltd. v. University Tutorial Press Ltd[18], the term originality must inhibit the uniqueness in expression. This does not mean that the work needs to be a product of a revolutionary idea. But it is mandatory to have originated from the author. In the case of Burrow-Giles Lithographic Co. v. Sarony[19], the court pressed on the literary and artistic merit of the work. However, the same was overruled in Bleistein v. Donaldson Lithographing Co.[20], rejecting the necessity of artistic merits in the work. They allowed copyright to lithographs giving recognition to the ordinary posters used in advertisements. Since even simple works of art are a reflection of the skill and its ignorance would surely lead to a lack of appreciation of the same. The court further widened the scope of originality by including the reproduction of previous work by the author.

Even where the author is not creating the work fully on his own and is merely reproducing some pre-existing work, it still requires labor and skill and must be protected under the copyright law. Whenever there exists a ‘distinguishable variation’, the work automatically gets protected. Accidental variation in work is also covered under the umbrella of copyright protection.

The case of Theberge v. Galerie D’Art du Petit Champlain [21]furnished a formulation of the equilibrium between the rights of the creators and that of the users. Reiterating the Canadian judgment, the court in Desputeaux v. Chouette [22]and further in C.C.H Canadian Ltd. v. Law Society of Upper Canada[23] considered the two doctrines of ‘sweat of the brow’ and ‘modicum of creativity’ as two extreme theories. The court adopted a measure midway between the two. Neither too high nor too low. Neither as high as ‘modicum of creativity’ and nor as low as ‘sweat of the brow’. Through this liberal application, the courts have relaxed the criteria and relieved the restrictions imposed while claiming copyright protection. The case of Baker v. Selden [24]while talking about the concept of ‘useful art’ provided exclusive patent rights to the same. Whereas the description was protected under copyright law.

While dealing with the copyright protection debate regarding questions, the court in Chancellor Masters of Oxford v. Narendra Publishing House[25] reasoned that mathematical questions are expressions of laws of nature. Due to the limited nature of language, laws of nature cannot be expressed in a plethora of techniques. Only limited ways of expression are possible. Copyright protection for these questions would deny access to the ideas they encompass. Thus, no copyright could be provided for the same.


The question of originality, therefore, arises differently in different contexts. But the Courts have to attempt to draw an objective standard somewhere along the curve. This article, through its analysis, suggests that such an attempt can be made through a balanced approach to existing jurisprudence on this matter. Originality, in essence, must be aptly attributable and therefore reasonably subject to the Copyright regime.


[1]Copyright, World Intellectual Property Organization,

[2] R. Dhiraj, The Law of Copyright in India, Sabbaraya Aiyar  Padmanabhan & Ramamani Taxation Specialists,


[4]Copyright Act, Copyright Office, Government of India, (1957),

[5]Macmillan And Company Ltd. v.  K. And J. Cooper, (1924) 26 BOMLR 292.

[6] University of London Press Ltd v University Tutorial Press, Ltd [1916] 2 Ch 601.

[7] Burlington Home Shopping v. Rajnish Chibber, 1995 IVAD Delhi 732.

[8] Kartar Singh Giani v. Ladha Singh, (1935) ILR 16 LAH 103.

[9] C. Cunniah & Co. v. Balraj & Co., AIR 1961 Mad 111.

[10]Mishra Bandhu v. Shivratan, AIR 1970 MP 261.

[11]Walter v Lane, [1900] AC 539.

[12]Ladbroke Ltd. v. William Hill Ltd, [1964] 1 All ER 465.

[13]Indian Express Newspapers (Bombay) Pvt Ltd v. Jagmohan, AIR 1985 Bom 229.

[14] Feists Publication v. Rural Telephone Services, 499 U.S. 340 (1991).

[15] Eastern Book Company v. D.B. Modak,101 (2002) DLT 205.

[16] Canadian Supreme Court in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13.

[17] Schweppes Ltd v. Wellingtons Ltd, [1984] F.S.R. 210.

[18] University of London Press Ltd. v. University Tutorial Press Ltd, [1916] 2 Ch 601.

[19] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).

[20] Bleistein v. Donaldson Lithographing Co, 188 U.S. 239.

[21] Theberge v. Galerie D’Art du Petit Champlain, 2002 SCC 34.

[22] Desputeaux v. Chouette, 2003 SCC 17.

[23]Supra note 16.

[24] Baker v. Selden, 25 L. Ed. 841.

[25] Chancellor Masters of Oxford v. Narendra Publishing House, (1995) 3 SCC 33.

Image source: Photo by Mark Fletcher-Brown on Unsplash