‘Originality’ concept under India’s copyright regime

By By Ameet Datta and Suvarna Mandal, Saikrishna & Associates

Under section 13 of India’s Copyright Act, 1957, copyright can subsist only in “original” literary, dramatic, musical and artistic works. The act does not define “original” or “originality” and what these concepts entail has been the subject-matter of judicial interpretations in India and various other jurisdictions.

As copyright law protects only the expression of an idea, and not the idea itself, the “work” must originate from the author and the idea need not necessarily be new. Views diverge with respect to two important doctrines pertaining to how originality accrues in any copyrighted work: the “sweat of the brow” doctrine and the “modicum of creativity” doctrine. These are the two tests on each end of the debate for ascertaining “originality”.

Ameet Datta
Ameet Datta

Divergent doctrines

The “sweat of the brow” doctrine relies entirely on the skill and labour of the author, rendering the requirement of “creativity” in a work nearly redundant. This doctrine was first adopted in the UK in 1900 in the case of Walter v Lane, where an oral speech was reproduced verbatim in a newspaper report and the question was whether such verbatim reproduction would give rise to copyright in the work. The court held that because the reporter expended skill and labour to reproduce the speech, the work merited copyright protection. This is still the position in the UK, and countries such as New Zealand and Australia largely follow in the UK’s footsteps and apply the sweat of the brow doctrine to determine originality in a work.

In contrast, the US Supreme Court in Feist Publications Inc v Rural Telephone Service Company Inc (1991) discarded the sweat of the brow doctrine and held that a “modicum of creativity” or a “creative spark” in the end product is an essential condition for a work to qualify as original, as mandated under the US constitution.

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Ameet Datta is a partner at Saikrishna & Associates, where Suvarna Mandal is an associate. The views expressed in this article are personal.


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