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SMRITI KUMARI

AN OVERVIEW OF TEST OF ORIGINALITY IN COPYRIGHT

Written by: SMRITI KUMARI,BA.LL.B(HONS.), GALGOTIAS UNIVERSITY

WHAT IS ORIGINALITY?

The meaning of “Originality” is something newly developed or which didn’t created by some other person previously. The term “originality” is  mentioned in SECTION 13(1)(a) of copyright Act 1957,which does not mean that the work must be expressed originally or invested for the originality required under the act related to expression of thought. It states that copyright shall exist in all original literary, dramatic, musical & other artistic works done by people across India. The aspect of Originality in the Copyright Act, 1957, it oppose the new creation, artistic work, or inventions from other countries reproducing similar creations or similar work .

 

WHY NEED OF AN ORIGINALITY TEST ?

It is important to test that work must be original and not copied from another person/sources.  For the protection of right of the original author/ owner because he/she invested their time , personality, money in the work.

Natural right theory – According to this theory, If a person invested his/her labour then they are untitled for copyright protection.

Personhood theory – In this , A person who created work they also invested their personality for creation of that work.

Utilitarian theory – In this A copyright incentive given to author only when there is social welfare and some kind of originality, means not only expression of idea but there should be expression of original law.

For the protection of the right  of the owner it is important to test for originality that means in copyright the owner gets economic benefits as well as also protected their work.

 

In Rupendra Kashyap v. Jiwan Publishing House,1996, the Court held that the word “original” in Section 13(1)(a) of the Copyright Act, 1957 did not imply any originality of ideas but merely meant that the work In question should not be copied from someone else’s work and should originate from the author’s labour and skill. Thus, the term “original” in the reference to a work means that the particular work is related to the author own work. Originally it means that the work has been independently created by the author and has not been copied from another work.

 

DOCTRINE UNDER TEST OF ORIGINALITY:

·         Doctrine of Sweat of the Brow

·         Modicum of Creativity

·         Skill and Judgment test

·         Doctrine of Mergers

 

1.Doctrine of Sweat of the Brow(labour theory):

It is a traditional approach of copyright protection. This test recognises labour as author or compiler into the making of the work. According to this doctrine irrespective of any database or judgement on the part of the author, if it can be proved that author has extended considerable labour and expenses over the making of his work to his level to get his work,he is liable to get his work protected by copyright. If there is any gathering of data and fact even such effort lacks imagination or judgement still it will entitle the compiler to get a copy over his/her judgement.

 

Under this doctrine a publisher of work gets equal protection as the author of the work, hence this doctrine seems to focus on the fact that the purpose of copyright law is minimum “protection of authorship” and maximum “stopping misappropriation by others by any labour”.

 

It also describes that for a work to obtain copyright protection, it should come from the author’s own diligence and not copied from any other person.

In University of London Press Ltd. V. University Tutorial Press Ltd., In this the court held the word ‘original’ must be construed to mean originality of expression. There is no requirement for producing and working on 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’s original work.

 

2.Modicum Of Creativity(Creativity standard doctrine) :

This doctrine consists of a minimal level of creativity in their(artistic) work to make their product copyrightable. The courts have given importance to the creativity and subjective approach of the author.

The basic tenets of theory is that the birth must be created to be original and only be protected with copyright.

 

Walter V. Cane, In  this the minority opinion states that a copyright cannot substitute in such reporting of a speech, because there is no space of the construction of the part of the maker. Therefore, the creativity doctrine requires the maker to do something more than pure labour (compilation).

 

Alfred Bell & Co. v. Catalda Fine Arts, Inc., In the case, US Courts observed that the test is valid when the author is trying to create some additions or advancement in other artist’s work instead of working on something original of his own. The Bleistein test only can be satisfied, if the author was perfectly reproducing another work, rather than creating an original work of his or her own. If the point exhibits a” difference variation” from another work. The law allows such variations as the author’s person. Indeed if the variation is accidental, the court held, the copier is still the origin of that variation.

 

3.Skill And Judgment Test :

This test is developed by the Canadian Supreme Court between the two doctrines “sweat of the Brow” and “Modicum of Creativity”.

This test provides for the Indian approach to provide whether the work is original or not. In order to this the authors should apply his skill in judgement in creating the work and such work should have a minimum level of creativity,  thereby leading the work to be original. It can be observed that India has adopted the middle path between the two approaches (UK and US approach).

 

In C.C.H Canadian Ltd. V. Law Society, It holds the two positions i.e. the “Sweat of the Brow” and “Modicum of Creativity” are extreme positions. The Court also considered that it has higher value than the doctrine of “sweat of the brow” but not as much higher than “Modicum of Creativity”.  It(Canadian approach of copyright)is based on Skill and Judgment and not merely labour.

 

In Eastern Book Company v. D.B. Modak,(2008) 1 SCC 1, the Supreme Court held that only the compiler’s selection and arrangement may be protected. The raw data may be copied at will. The Court rejected the doctrine of the” sweat of the brow” as this doctrine had various types of excrescences, the most striking being that it extended brand protection in a compendium beyond selection and arrangement of the compiler's original benefactions to the data themselves. A posterior compiler was not entitled to take one word of information preliminarily published, but rather had to singly work out the matter for himself, so as to arrive at the same result from the same common sources of information.” Sweat of the brow” thereby escaped the most abecedarian axiom of brand law that no one may brand data or ideas. The” sweat of the brow” doctrine became introductory brand principles and it created a monopoly in public sphere accoutrements without the necessary defence of guarding and encouraging the creation of jottings by authors.

 

4.Doctrine Of Merger :

Besides “Sweat of the Brow”, Modicum of Creativity” and the mid-way approach towards  originality under brand governance, there’s also a doctrine of” Merger” which propounds that that where the idea and expression are naturally connected, and that the expression is indistinguishable from the idea, brand protection can not be granted.

 In Baker v. Selden,  In this, 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. US courts are divided on whether merger doctrine constitutes a defence to infringement or prevents copyrightability in the first place, but it is often pleaded as an affirmative defence to copyright infringement.

 

CONCLUSION:

The Various types of approaches mentioned above which make an attempt to define the conception of originality show that there is no single concept of originality. The concept of originality has changed from “sweat of the brow” to “modicum of creativity” and also different authorities have different criteria for originality.

The term "Originality" has no specific meaning but has several aspects on which courts determine the originality in the issues of a particular person. The originality hence is understandable differently in different countries by different authorities.

 

 

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