Over the years, two main principles of Copyright law have emerged as decisive tools for determining the copyrightability of works with. In the near past, a great number of cases have relied upon the Sweat of the Brow principle to ascertain whether copyright subsisted in a work. While, the comparatively stricter principle of, Modicum of Creativity also found use in an increasing number of precedents. In an interesting development, Courts have now begun to recognize that an amalgamation of both these principles leads to a better test for copyrightability.
In the past, Courts in the U.S developed the doctrine of Sweat of The Brow as a yardstick to measure copyrightability. Based entirely on the amount of effort put in to create it, this doctrine made the requirement of creativity in a work, almost irrelevant. It ascribed copyrightability of, say, a work of compilation to the labor and sweat of the compiler, and not the use of his vision and aptitude. A merely mechanical and automatic task which did not involve any creativity could be considered copyrightable under this doctrine. In a slight digression from the topic it is important to remind you that, compilations of facts may be copyrightable depending upon the work in which they are compiled, however one cannot copyright facts themselves.
This principle became the basis for Courts to decide on various occasions, that a derivative work need not be completely original, instead, it should be expressed in an entirely new manner in order to be copyrighted. Adaptations are an example of this. This kind of protection gives an author rights, through simple diligence during the creation of a work, to make sure that what he was creating was, in some way or the other substantially different from the original work.
The Hon’ble Delhi High Court in the case of Burlington Home Shopping v/s Rajnish Chibber, 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 relied upon, in the decision of Macmillan Company v/s 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.
Then in 1991, the U.S. Courts, in a remarkable judgment of Feist Publication v/s Rural Publication, flatly rejected the Sweat of The Brow doctrine and held that; ‘expenditure of effort does not, in itself, merit protection’. The proponents of the Sweat of Brow school criticized the judgment stating that labour or industry, even in the absence of creativity, may be sufficient to make out a finding of originality for copyright purpose. The labour invested in collection of facts is enough for being copyrightable.
This case led to the advent of the Modicum of Creativity principle which laid a larger emphasis on creativity. According to this school, a minimal amount of creativity was a must for any work seeking copyright protection; only labour was not sufficient. The partisans of ‘creativity school’ hold that originality is impossible in the absence of creativity. The standard of originality requires at least minimal creativity and labour as such is not sufficient. This school of thought stresses that, the standard of creativity need not be high but it should be there nevertheless. Copyright law protects creations, not mere productions. Accordingly, ordinary phone directories are ‘produced’ not ‘created’ and do not deserve copyright protection.
At one end lay the Sweat of The Brow approach to originality, which was too low a standard. Such a standard shifted the balance of copyright protection too far in favour of the owner, and fails to allow copyright to protect the public’s interest in maximizing the production and dissemination of intellectual works. And on other end, lay the Modicum of Creativity standard, which implied that a work had to be novel or non-obvious – a concept more properly associated with patent law than copyright law.
The Indian Supreme Court, following the approach laid down by the Canadian Supreme Court in CCH Canadian Ltd v/s Law Society of Upper Canada, has generally rejected the Sweat Of The Brow doctrine and has held that a work must be original ‘in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author’.
It is noteworthy, that the Supreme Court (in keeping with India’s approach of balancing out the extreme stands taken by developed nations) noticed that the two positions i.e. the Sweat Of The Brow on one hand, and Modicum Of Creativity were extreme in themselves; a higher threshold than the doctrine of Sweat of the Brow was required but the same mustn’t be as high as Modicum of Creativity.
In light of the above principle, in Eastern Book Company v/s D.B. Modak, the Apex Court held that; ‘Addition of inputs in the raw text does not give a work a flavour of minimum requirement of creativity, as, skill and judgment required to produce the work is trivialized. To establish copyright, some amount of creativity in the work claiming copyright must be shown – selection and arrangement can be viewed as typical and at best, a result of 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 are available and the author selects one of them. Inputs put by the Appellants in copyedited judgments do not touch the standard of creativity required for copyright. However, inputs such as paragraph numbering and internal referencing require skill and judgment and in great measure, have a flavour of minimum amount of creativity. Further, inputs in the form of referring to different Judges’ opinions, shown to have been dissenting or partly dissenting or concurring, etc., requires reading and understanding the questions of law involved…”
The doctrine of Sweat of the Brow, which has played a vital role in the protection of derivative works earlier, has now been looked upon from a different perspective, wherein the Courts have 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.
The Supreme Court therefore, in Eastern Book Company v/s D.B. Modak adopted a ‘middle path’ approach by enunciating a ‘exercise of skill and judgment’ standard. In essence, the Court held that, to claim copyright in a compilation, the author must produce a material which reflects ‘exercise of his skill and judgment’ which may, on one hand, not be creativity in the strictest sense of the term but at the same time, is not the product of mere clerical labour and capital.