Originality Test for Copyright Protection

It is known that copyright subsists in literary, dramatic, artistic and musical works including cinematographic films and sound recordings in India. But the requirement for obtaining registration for the above mentioned subject matter is based on the “originality test”. The term originality in this context means that the work must originate from the author and must not be a mere copy of another work. As the saying goes “What is worth copying is worth protecting”, copyright protects the original expressions of the author.

There are two major approaches for considering the originality of a work. These are:

1. “Sweat of the Brow” Approach: According to this approach, the author gains rights through simple diligence during the creation of a work. The energy and labour that the author has invested in the work would ensure copyrights over it.[1]

2. “Modicum of Creativity”: This approach negates the sweat of the brow approach and states that there must be some trace of creativity involved in the work of an author for it to be considered as an original work.[2]

However, another approach or test was devised in order to strike a balance between the above two approaches and this was called the “Canadian test” or the “skill and judgement” test. This test was devised in the landmark case of CCH Canadian vs. Law Society of Upper Canada[3], which categorized sweat of the brow approach to be too low of a threshold for ascertaining the originality and the need for a creative spark to be too high of a threshold .

According to the skill and judgement test, a work must be more than a mere copy but need not be creative, in the sense of being novel or unique. It must be the outcome of exercise of skill and judgement of the author. ‘Skill’ here refers to the use of one’s knowledge, developed aptitude or practiced ability in producing the work and ‘judgement’ refers to the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This approach clarifies that the work must not be so trivial that it would be categorized as a purely mechanical exercise. But the exercise and creation should have a minimum amount of creativity.[4]

• Are Ideas protected under copyrights?

No, mere ideas are not protected under copyrights unless it is brought into the form of an expression. This is termed as “Idea-Expression Dichotomy”. This principle ensures that the law of copyright does not stop the free flow of ideas. However, not all ideas can be expressed creatively often. Certain elements are “scene a faire” (essential) in portraying certain things. In these cases, the ideas and expressions merge, giving rise to the merger doctrine that does not act as copyright infringement.

[1] University of London Press Ltd. v. University Tutorial Press Ltd. (1916) 2 Ch D 601. [2] Feist Publications v. Rural Telephone Service (1991) 499 US 340 (USSC)

[3] [2004] 1 SCR 339, 2004 SCC 13 [4] Eastern Book Company v. D B Modak & Navin Desai, AIR 2008 SC 809