The Concept of ‘Originality’ under Copyright Law – Study of Judicial response

ABSTRACT

Creation of anything is a deed in itself. However, does every creation merit a protection or only some of them are worthy of being granted such a protection. The creations in the Copyright law are called ‘Works’. These ‘Works’ are required to satisfy the test of ‘Originality’ or in other words have to be ‘Original’ to be protected. However, as to what constitutes ‘Originality’ has come to be interpreted and evolved through judicial decisions, where the judges have given the words ‘Originality/Original’ an expanse, into which a work has to fall to claim protection under Copyright law, failing which there is no Copyright in such work. This Article will try to ascertain this expanse, this area, this scope of ‘Originality’ as laid down by the Courts, which as a corollary has shaped the Copyright protection in India.  

INTRODUCTION

The most important tenet of any intellectual property protection is the proving of an existing factor which makes it protectable – For Designs, it is novelty; For Patents it should be a New Invention having Inventive Steps and capable of Industrial Application; For passing off action in trade marks, it should be goodwill. Similarly, when it comes to Copyright protection, the person seeking to protect its Copyright over a ‘work’ must demonstrate that the ‘work’ is original. The term ‘original’ finds its place in the existing Copyright law applicable to India, i.e. Copyright Act, 1957. Section 13, which provides for the ‘Works in which copyright subsists’ requires that every literary, dramatic, musical and artistic work must be ‘original’ for it to have any Copyright. However, this statute does not define ‘original’ and one has to look at the judicial precedents in this area to see as to what is their response to this concept of ‘originality’ in the Copyright law.

In India, the first statutory law protecting Copyright was the Indian Copyright Act of 1847, which was mainly based on the Literary Copyright Act 1842/U.K. Copyright Act of 1842.[1] Then, in 1912, the British Govt. extended the UK Copyright Act, 1911 to India. In 1914, a new Indian Copyright Act was enacted by the British which modified some of the provisions of the 1911 Act and added some new provisions to the 1911 Act to make it applicable in India.[2] In the First Schedule of the 1914 Act, titled ‘The First schedule – Portions of the Copyright Act, 1911, applicable to British India’, Section 1, provided probably for the first time, the term ‘Original’ in a Statue which was prepared for India and not merely extended to India. Otherwise, the UK Copyright Act of 1911m had the requirement of originality.  The term ‘Original’ in the First Schedule of the 1914 Act preceded the words ‘literary dramatic musical and artistic works’ similarly as the currently applicable statute of Copyright in India.

The Copyright Act, 1957 came into force in 1958 and repealed the Indian Copyright Act, 1914 and the Copyright Act of 1911 passed by the Parliament of UK in its application to India by the Indian Copyright Act, 1914.[3]

It is pertinent to mention that it appears that before 1911, there was no requirement of originality in India. A perusal of the 1847 Indian Copyright Act shows that there was no requirement of ‘original’ to be protected under it. This is also corroborated by the fact that when House of Lords decided Walter v. Lane[4], based on Literary Copyright Act 1842, they give protection to a verbatim report of a speech of Lord Roseberry. The Court specifically referred to absence of ‘original’ in the statute as the basis of its decision.[5]

However, since 1911, Copyright subsists only in ‘Original’ works and what is ‘Original’ has now been sort of constructed by the Courts, in which we delve now.

1. JUDICIAL RESPONSE

One of the first decisions on the concept of originality, which really provided the test of originality was University of London Press Ltd. v. University Tutorial Press Ltd.[6] and observed that for a work to be original, it must not be copied from another work – that it should originate from the author. Almost a decade later, the privy council observed that ‘Originality’ is the product of the labour, skill and capital which must not be appropriated.[7]

Thereafter, over the years, a catena of Indian decisions came on concept of ‘originality’ such as Shyam Lal Paharia v. Gaya Prasad Gupta ‘Rasal’[8] which held that if a compilation has been created as a result of labour and industry by a person, he can claim Copyright over it. Similarly, the compiler was given protection in Gopal Das v. Jagannath Prasad[9] on the reasoning of ‘considerable labour’ being applied to create a compilation. In V. Govindan v. EM Gopalakrishna Kone[10], the Madras High Court also protected the compilation on the reasoning of investment of brain, skill or labour. Similarly, in C Cunniah & Co v. Balraj & Co[11], a painting was protected and it was observed that what is required is the expenditure of original skill and not originality of thought.[12]In Agarwala Publishing House v. Board of High School and Intermediate Education UP Allahabad[13], Court held that examination papers are original literary works as the preparation of such papers required selection, judgment and experience, and the author was expected to employ sufficient labour and skill.

A perusal of the above case law makes it clear that majorly the question of whether a work is ‘original’ or not has come for judicial considerations in matters where there can be considered a grey area for protection of Copyright such as compilations, examination papers etc. and in all these cases the, the Court applied the doctrine of labour, skill and judgement, commonly referred to as ‘sweat of the brow’ doctrine.

The reason could be the pre-existing nature of the material used but expression different. For example, in Rai Toy Industries v. Munir Printing Press[14], Hon’ble High Court of Delhi recognised the skill and labour employed in creation of a Tambola tickets and placing them in tables. The Court held that a compilation of Tambola tickets was original enough for being protected as an original literary work. In the Court’s opinion, the arrangement of numbers in tickets is the individual work of the person who prepares it, it bears his individuality and long hours of labour.[15]

Then in Burlington Home Shopping v. Rajnish Chibber[16], Plaintiff who was running a home shopping catalogue business, claimed rights in the database of its customers. Defence taken was that the compilation of addresses did not have sufficient originality. The Court applied the ‘sweat of the brow’ doctrine and held that a compilation of addresses, which was developed by devoting sufficient time, labour and skill would be an original literary work, even though it may have been derived from common sources such as telephone directories and other public sources.

Thus, ‘sweat of the brow’ doctrine continued to govern the test of originality for decades. However, the test changed, in 2008, when Eastern Book Company, owner of Supreme Court Cases sought to protect its arrangement of content and inputs of its team.

In SCC, the original Judgments were copy-edited by a team of assistant staff and various inputs were put in the judgments and orders to make them user friendly by making an addition of cross-references, standardization or formatting of the text, paragraph numbering, verification and by putting other inputs. The Plaintiff also prepared the headnotes comprising of two portions, the short note consisting of catch/lead words written in bold; and the long note, which is comprised of a brief discussion of the facts and the relevant extracts from the judgments and orders of the Court.

Respondents had launched softwares published on CD-ROMs. As per the Plaintiffs, all the modules in the Respondents’ software packages have been lifted verbatim from Plaintiff’s work. The Plaintiffs alleged that the Respondents had copied the sequencing, selection and arrangement of the cases coupled with the entire text of copy-edited judgments, along with and including the style and formatting, the copy-editing paragraph numbers, footnote numbers, cross-references, etc.

The matter reached the Supreme Court which went through the jurisprudence on ‘originality’ till then with a fine tooth comb and observed that earlier decisions are the authority on the proposition that the work that has been originated from an author and is more than a mere copy of the original work, would be sufficient to generate copyright. The Court further observed that this line of thought is consistent with the “sweat of the brow” standards of originality.[17] However, the Supreme Court did not follow this test, i.e. test of trivial variation be employing skill and labour but following Canadian Supreme Court decision in CCH Canadian Ltd. v. Law Society of Upper Canada[18] held that ‘originality’ requires some amount of of creativity, a minimal degree of creativity. As per the Court, to support copyright, there must be some substantive variation and not merely a trivial variation.

Keeping in light the aforesaid, the apex Court did not find inputs put by the Appellants in the copy-edited judgments to be worthy of Copyright protection. However, the inputs in the original text being (i) segregating the existing paragraphs in the original text by breaking them into separate paragraphs; (ii) adding internal paragraph numbering within a judgment after providing uniform paragraph numbering to the multiple judgments; and (iii) indicating in the judgment the Judges who have dissented or concurred by introducing the phrases like ‘concurring’, ‘partly concurring’, ‘partly dissenting’, ‘dissenting’, ‘supplementing’, ‘majority expressing no opinion’, etc., were protected.

Thus, the Supreme Court shifted the test from ‘sweat of the brow’ to ‘modicum of creativity’ to claim originality. The test laid down by DB Modak (Supra) lead to a lot of claims being denied on the ground of originality, which may have been granted in the ‘sweat of the brow’ doctrine. For example, in Dr. Reckeweg Co, GMBH v. Adven Biotech Pvt. Ltd.[19] sequencing of medicines series was not given Copyright protection following DB Modak (Supra). Similarly, in Mattel v. Jayant Aggarwala[20]the components of the game Scrabble were not given protection since they lacked creative input or independent expression. In University of Oxford v. Narendra Publishing House[21], the Court held that the maths questions did not meet the test of originality.

Recently, in Hulm Entertainment Pvt. Ltd. & Ors. v. Fantasy Sports MyFab11 Pvt. Ltd. & Ors.[22] the Single Judge of the Hon’ble High Court of Delhi did not find much merit in the contention of the Plaintiff that its mobile application has elements of originality. As per the Court, the Plaintiff was not able to show that despite the existence of earlier apps containing the stock market/trading feature, its gaming mobile app was developed in a manner that the expression of the idea made it distinct from the rest. The Court also observed that the Graphical User Interface was not distinct enough to be protected under Copyright Act. The matter is currently pending before the Division Bench of the Hon’ble High Court of Delhi.

CONCLUSION

After having charted the course of judicial response on the concept of originality in decisions which have a difference of century between them, we have now come to concepts which were not even envisaged; from compilations and papers to Mobile Apps and GUI. However, this particular jurisprudence has seen a see change from protecting labour to trenching on creativity. What we have realised is that there is no single straightjacket formulae and every work will be tested on its own merits in this standard of originality. The ‘sweat’ has given way to ‘minimal creativity’. However, it will always be unclear as to what is minimum creativity and would obviously depend on the relevant judge hearing the matter. While, we have developed a test, the expanse of the same will always be debated. The standard definitely has been set higher, but the standard gives a lot of room for making persuasive arguments on either side depending upon the nature of the work sought to be protected.  

[1] Dr. Raghavender GR, A brief History of Evolution and Development of the Copyright Law of India (67th Anniversary of Enactment of the Copyright Act,1957 on 4th June 2023), Available at: https://www.linkedin.com/pulse/brief-history-evolution-development-copyright-law-india-gr/

[2] VK Ahuja, Intellectual Property Rights in India, Vol. I, page 18, (Lexis Nexis, 2009)

[3] Section 79, Copyright Act, 1957

[4] [1900] AC 539

[5] Ibid, p. 549

[6] (1916) 2 Ch D 601

[7] Macmillan v. Cooper, AIR 1924 PC 75

[8] AIR 1971 All 192

[9] AIR 1938 All 266

[10] AIR 1955 Mad 391

[11] AIR 1961 Mad 111

[12] Supra note 3 at 33

[13] AIR 1967 All 91

[14] 1982 PTC 85

[15] Supra note 3 at 35

[16] 1995 SCC Online Del 746

[17] Eastern Book Company and Ors. v. D.B. Modak and Anr.; (2008) 1 SCC 1

[18] 2004 (1) SCR 339 (Canada)

[19] (2008) 38 PTC 308

[20] (2008) 38 PTC 416

[21] 2008 SCC Online Del 1058

[22] 2023 SCC Online Del 6891