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.