India:: Sweat of The Brow: An Approach in Contrast To Minimum Creativity

India: Sweat Of The Brow: An Approach In
Contrast To Minimum Creativity

04 November 2013
by Himanshu Sharma
Singh & Associates
1 Liked this Article

As per copyright law, an idea is not copyrightable instead it is the expression of idea on
which a copyright can be claimed. As per section 13 of the copyright Act, 1957, a copyright
subsists in original, literary, dramatic, musical, artistic, cinematography and sound recording
subject to the exceptions provided in Sub-sections (2) and (3) of Section 13.
For copyright protection, all literary works have to be original as per Section 13 of the Act.
Broadly speaking, there would be two classes of literary works:
(a) Primary or prior works: These are the literary works not based on existing subject-
matter and, therefore, would be called primary or prior works; and
(b) Secondary or derivative works: These are literary works based on existing subject-
matter. Since such works are based on existing subject-matter, they are called derivative
work or secondary work.
The term original is not defined any where in the Act hence the interpretation for the same
would be based on the judicial pronouncement of the term by the Courts. However the idea
of originality of the work has been changing with the passage of time.
Initially it is considered by courts on various occasions that a derivative work need not be
original instead it should be expressed in a completely new way in order to be copyrighted.
A person can claim a copyright over a work which cannot be novel in nature but has been
expressed differently. The protection for this kind of work is provided according to the
doctrine of 'Sweat of the Brow' under which an author gains rights through simple diligence
during the creation of a work, such as a database, or a directory. Substantial creativity or
"originality" is not required. The Delhi High Court judgment in the case of
Burlington Home Shopping v. Rajnish Chibber, where it was held that a compilation may
be considered a copyrightable work by virtue of the fact that there was devotion of time,
labour and skill in creating the said compilation.
This interpretation of originality was based upon the decision of the Privy Council in the
case Macmillan Company v. J.K. Cooper, wherein it was laid down that copyright over a
work arises and subsists in that work due to the skill and labour spent on that work, rather
than due to inventive thoughts.
DEVIATION FROM THE APPROACH:
In the recent times the courts has deviated from the doctrine of Sweat of Brow rather than
considering only the skill and labour spent on the work the courts has started to take in to
consideration the original thoughts of the author put in the work for considering the same
for the copyright protection.
In Feist Publications Inc. v. Rural Telephone Service Co. Inc , the United States Supreme
Court held that the sine qua non of copyright is originality. To qualify for copyright
protection, a work must be original to the author. Original, as the term is used in copyright,
means only that the work was independently created by the author (as opposed to copied
from other works), and that it possesses at least some minimal degree of creativity. The
requisite level of creativity is extremely low; even a slight amount will suffice. The vast
majority of works make the grade quite easily, as they possess some creative spark, no
matter how crude, humble or obvious it might be. Originality does not signify novelty; a work
may be original even though it closely resembles other works so long as the similarity is
fortuitous, not the result of copying. The Court further held that no one claim originality as
to the facts. This is because facts do not owe their origin to an act of authorship. The
distinction is one between creation and discovery: the first person to find and report a
particular fact has not created the fact; he or she has merely discovered its existence. Factual
compilations, on the other hand, may possess the requisite originality. The compilation
author typically chooses which facts to include, in what order to place them, and how to
arrange the collected data so that they may be used effectively by readers. These choices as
to selection and arrangement, so long as they are made independently by the compiler and
entail a minimal degree of creativity, are sufficiently original. Thus, if the compilation author
clothes facts with an original collocation of words, he or she may be able to claim a
copyright in this written expression. The Court goes on to hold that the primary objective of
copyright is not to reward the labour of authors, but to promote the progress of science and
useful arts. To this end, copyright assures authors the right to their original expression but
encourages others to build freely upon the ideas and information conveyed by a work. Only
the compiler's selection and arrangement may be protected; however, the raw facts may be
copied at will. The Court rejected the doctrine of the "sweat of the brow" as this doctrine had
numerous flaws, the most glaring being that it extended copyright protection in a
compilation beyond selection and arrangement - the compiler's original contributions - to
the facts themselves. A subsequent compiler was not entitled to take one word of
information previously published, but rather had to independently 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" courts thereby eschewed the most fundamental axiom of copyright law
that no one may copyright facts or ideas. The "sweat of the brow" doctrine flouted basic
copyright principles and it creates a monopoly in public domain materials without the
necessary justification of protecting and encouraging the creation of writings by authors.
Similarly the Supreme Court of India in case of Eastern Book Company v. D.B. Modak held
that "collection of material and addition of inputs in the raw text does not give work a
flavour of minimum requirement of creativity, as skill and Judgment required to produce the
work trivial. To establish copyright, the creativity standard applied is not that something
must be novel or non-obvious, but some amount of creativity in the work to claim a
copyright is required - Selection and arrangement can be viewed as typical and at best result
of the labour, skill and investment of capital lacking even minimal creativity, which does not
as a whole display sufficient originality so as to amount to an original work of the author. To
claim copyright, there must be some substantive variation and not just a trivial variation, not
the variation of the type where limited ways of expression available and author selects one of
them. Inputs put by the Appellants in the copyedited Judgments do not touch the standard
of creativity required for the copyright. However inputs and task of paragraph numbering
and internal referencing requires skill and Judgment in great measure having a flavour of
minimum amount of creativity. Further putting an input in form of different Judges' opinion
shown to have been dissenting or partly dissenting or concurring, etc. requires reading and
understanding the questions involved Appellants have a copyright, which nobody can utilize"
The doctrine of Sweat of the Brow which has been an integral part in regards to the
protection to a derivative work earlier has now been looked upon from a different
perspective wherein the courts has taken into consideration the minimal creativity put in by
the creator in regards to the creation of work rather than taking into consideration only
labour, skill and investment of capital.
CONCLUSION:
The derivative works which are in the contemporary times have a major part of the services
industry, are looked from completely different point of view in comparison to the classical
approach. The work need to have some creativity attached to it in order to be eligible for the
copyright protection. Classically the work was only judged on the basis of labour, skill and
investment of capital put in by the creator. As per modern approach in addition to these
elements the work is required to have some creativity attached to it which in itself
differentiates work from any other work.
Footnote
1. 61 (1995) DLT 6
2. (1924) 26 BOMLR
3. MANU/EG/0440/1991,
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