What Is Originality?
The general meaning of "Originality" is something newly developed or recently
discovered which didn't happen previously. The term "originality" is often
applied as a compliment to the creativity of artists, writers, and thinkers.
SECTION 13(1)(a) of the Copyright Act, 1957 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 prevents the
new creation, artistic work, or inventions from forgeries, reproducing similar
creations, or other unoriginal works. Originality in the art form inspires
artists, creators, inventors to do more and people take it as a compliment for
their creative work.
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
These different doctrines are:
- Doctrine of Sweat of the Brow
- Civil law approach
- Modicum of Creativity
- Skill and Judgment test
- Doctrine of Mergers
Doctrine Of Sweat Of The Brow
The Doctrine of Sweat of the Brow refers to 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.
The Doctrine of Sweat of the Brow is referred to when the court gives more
emphasis on the efforts and labour that was put in to make that product rather
than the originality in the product or how original is the product in that
The "Sweat of the Brow" doctrine can hence be thought to be one which does not
distinguish between an author and a publisher.
University of London Press Ltd. V. University Tutorial Press Ltd.
In University of London Press Ltd. V. University Tutorial Press Ltd., the court
held the word 'original' must be construed to mean as originality of expression.
There is no requirement for 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
Civil Law Approach
Civil law approach 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. 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.
Modicum Of Creativity
This doctrine requires a minimal level of creativity in the artistic work to
make their product copyrightable. 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.
Bleistein V. Donaldson Lithographing Co.
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.
Alfred Bell & Co. v. Catalda Fine Arts, Inc.
In the case of Alfred Bell & Co. v. Catalda Fine Arts, Inc., 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 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
Skill And Judgment Test
The Canadian Supreme Court has developed a mid-way approach between the two
doctrines. 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.
C.C.H Canadian Ltd. v. Law Society
C.C.H Canadian Ltd. v. Law Society of Upper Canada by 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.
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.
Baker v. Selden
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. 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.
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 term "Originality" has no specific meaning but has several arenas with which
courts determine the originality in the issues of a particular concerned person.
The originality hence is understandable differently in different countries in