ANALYSIS OF DOCTRINES: ‘SWEAT OF THE

BROW’ & ‘MODICUM OF CREATIVITY’ VIS-

A-VIS ORIGINALITY IN COPYRIGHT LAW
Originality is the basic yardstick used by the copyright regimes in the world to
evaluate the availability copyright protection to a particular work. The
threshold of originality varies from jurisdictions. Section 13(1) of the Indian
Copyright Act 1957[1] states that copyright subsists in “original literary,
dramatic, musical and artistic works.” However, the Act fails to give any
definition or test to determine originality of a work.  This leaves the court with
the duty to decide the amount originality required for a work to claim copyright
protection.
The copyright law does not mean to apply the word ‘originality’ in its literal
sense. In case of any art, or any fruit of human creativity, inevitably there must
be some influence from the works of the predecessors. Copyright law only
requires existence of some creative efforts by the creator.  .

However, the degree of creativity expected to make a work original is still a

grey area. There is no clarity as to when will the work be considered as
original in the eyes of law.  Especially in case of derivative works, it is very
unclear as to when a derivative work can be identified as a separate work of
art and claim legal protection of copyright.

Since there is no definite, single and unified concept of originality, there exist
different doctrines used in different jurisdictions of law, which are analysed
and compared in the following paragraphs.

SWEAT OF BROW DOCTRINE

According to this doctrine, an author gains rights through simple diligence
during the creation of a work. Substantial creativity or “originality” is not
required. The creator is entitled to such rights on account of efforts and
expense put in by him in the creation of such a work. For Example, the creator
of a telephone directory or a database must have a copyright over the product
not because such a compilation of data showcases any creativity, or the
author has expressed anything original, but merely because of the effort, time
and money invested by the creator to collect and organise all the data in a
specific manner. But such a compilation must be the work of the author
himself and must not be copied from another source.[2]
MODICUM OF CREATIVITY DOCTRINE
The concept of “originality” has undergone a paradigm shift from the “sweat of
the brow” doctrine to the “modicum of creativity” standard put forth in Feist
Publication Inc. v. Rural Telephone Service[3] by the United States Supreme
Court. The doctrine of “sweat of the brow” provides copyright protection on
basis of the labour, skill and investment of capital put in by the creator instead
of the originality. InFeist’s case[4], the US Supreme Court totally negated this
doctrine and held that in order to be original a work must not only have been
the product of independent creation, but it must also exhibit a “modicum of
creativity”. The Supreme Court prompted ‘creative originality’ and laid down
the new test to protect the creation on basis of the minimal creativity. This
doctrine stipulates that originality subsists in a work where a sufficient amount
of intellectual creativity and judgment has gone into the creation of that work.
The standard of creativity need not be high but a minimum level of creativity
should be there for copyright protection.
Now, let’s understand the position in different countries with respect to
doctrines adopted by the courts in deciding originality of the work.

POSITION IN ENGLISH LAW (UK)

University of London Press v. University Tutorial Press[5] is a very important
case where the test of “originality” was explained by the Chancery Division of
England which is also commonly cited as an archetypal “sweat of the brow”.
The Facts of the case follows-
A resolution by the University of London stated that the copyright of all the
examination papers set by the examiners employed by the University vested
with the University. Examiners were appointed for the purpose of setting the
examination papers for matriculation examinations. They were free, subject to
a syllabus and having regard to the knowledge expected from students, to
choose their own questions. The University entered into an agreement with
the University of London Press Limited to assign the copyright and all rights to
publish the matriculation examination papers to the later for a consideration.
Later, the University Tutorial Press Limited issued a publication which
included sixteen out of forty-two matriculation papers. The papers were not
copied from the publication of the University of London Press Limited, but
were taken from copies of the examination papers supplied by students. In
addition to the question papers, the publication also contained answers to the
questions in some of the papers and also made some criticism on the way the
papers were set. The plaintiff, University of London Press, sued University
Tutorial Press for infringement of copyright.

The plaintiff contended that the term  “literary work” as used in the Act has a
very broad meaning covering work which are expressed in print or writing,
irrespective of whether the quality or style is high and includes maps, charts,
plans, tables, and compilations. Therefore the examination papers will also fall
under the category of “literary work”. The defendant contended that questions
were of common type and were not unique or distinct enough to claim
copyright.
The Court held that the Copyright Act does not require that expression be in
an original or novel form. It does, however, require that the work not be copied
from another work. It must originate from the author. The question papers are
original within the meaning of copyright laws as they were originated from the
authors . The court held that merely because similar questions have been
asked by other examiners, the plaintiff shall not be denied copyright.

This doctrine “sweat of the brow” was used in Walter v. Lane[6] and later in
the case of Ladbroke (Football) Ltd. v. William Hill (Football) Ltd[7] where the
Court said that it is immaterial whether work is wise or foolish, accurate or
inaccurate, or whether it has or does not any literary merit. The case
reiterated the requirement of ‘labour, skill and judgement’ and the requirement
of originality is limited to the extent that the work originated from the author.
[8] This doctrine is also followed in various other jurisdictions including
Canada, Australia and India.
POSITION IN THE UNITED STATES OF AMERICA
USA has the oldest and the most developed Copyright laws in the world. The
courts have given importance to both the creative and subjective contribution
of the authors since the late 17  century.[9] It also gives emphasis to literary
th

and artistic merits of the work.[10]

In the case of Bleistein v. Donaldson Lithographing Co.[11] decided in 1903,
the United States Supreme Court revisited the questions of originality with
respect to copyright and rejected the notion that originality should be decided
with reference to the artistic merits of the work. The court did not consider the
novelty or creativity of the work, but rather the presence or absence of the
putative artist’s personal expression. If the item exhibits a “distinguishable
variation” from another work, the law presumes that such a variation bears the
imprint of the author’s person, thereby entitling the work to copyright
protection.[12]This Bleistein test was later applied in various other cases
especially the ones relating to copyright of fine arts.[13]
Feist Publications[14] is alandmark judgment in which the US Supreme Court
insisted for a minimum amount of creativity as a prerequisite to claim
copyright protections.  The facts of the case are as follows. Rural Telephone
Service Company was public utility providing telephone services. Under some
local regulation, all telephone companies had to issue annually an updated
telephone directory. Rural Telephone Service published a telephone directory
using this data. Feist Publications Inc. was a publishing company specialized
in area-wide telephone directories. Feist’s directories covered a wide range of
geographical area covering 11 different telephone service areas. Both the
companies distribute the directories free of cost to its subscribers and earn
revenue on the advertisements in yellow pages. Both competed vigorously for
yellow pages advertising. Feist not being a telephone company, lacked
independent access to any subscriber information. To obtain the listings for its
directory, Feist approached each of the 11 telephone companies operating in
the area and offered to pay for the right to use its white pages listings. Rural
refused to license its listings to Feist. Thus Feist used Rural’s listings without
their consent. Feist then hired personnel to investigate and verify the data.
Therefore Feist’s listing had more information that Rural’s. But some of these
listings were identical to that of Rural. Rural telephone Service sued Feist
Publications for copyright infringement.
The major question of law was whether a compilation like that of a telephone
directory is protected under the Copyright law. The court held that the facts
like names, addresses etc are not copyrightable, but compilations of facts are
copyrightable. This is majorly owing to the unique way of expression by way of
arrangement and if it possesses at least some minimal degree of creativity, it
will be copyrightable. The Court held that Rural’s directory displayed a lack of
requisite standards for copyright protection as it was just a compilation of data
without any minimum creativity, which was a requirement for copyright
protection. Hence, Rural’s case was dismissed.. In Key Publications, Inc. v.
Chinatown Today Publishing Enterprises Inc[15], the US Supreme Court
defined creativity negatively by describing how a compiler’s work might fail to
satisfy the requirement; selections and arrangements that are mechanical,
routine, common place, typical, garden variety, obvious, inevitable, time-
honoured, age-old, or dictated by law will fail to pass muster[16] However, the
opinion does not make clear whether originality is to be found by looking at
the work or by evaluating the mental processes that went into producing it.
In this case, the US Supreme Court laid down three requirements for a
compilation to qualify for copyright protection:
1. The collection and assembly of pre-existing data;
2. Selection, coordination or arrangement of the data; and
3. The resulting work that comes into being is original, by virtue of the selection,
coordination or arrangement of the data contained in the work.
POSITION IN INDIA
India strongly followed the doctrine of ‘sweat of the brow’ for a considerably
long time. The Supreme Court of India, following the approach of English
Courts, observed that copyright law does not prevent a person from taking
what is useful from an original work with additions and improvements.  The [17]

Court has held neither original thought nor original research are necessary for
claiming copyright and even compilations such as dictionaries, gazettes,
maps, arithmetic, almanacs, encyclopaedias etc. are capable of having
copyright.[18] In the case of Burlington Home Shopping v Rajnish Chibber , [19]

were the facts were similar to that of Feist’s case [20], the court following the
doctrine held that a compilation is copyrightable.
However, the standard of ‘originality’ followed in India is not as low as the
standard followed in England. The Bombay High Court in its judgement
regarding copyright of a news article stated that there is no copyright for
happenings and events which could be news stories and a reporter cannot
claim any copyright over such events because he/she reported it first.[21]The
ideas, information, natural phenomena and events on which an author spends
his/her skill, labour, capital, judgment and literary talents are common property
and are not the subject of copyright. Hence, there is no copyright in news or
information per se. However, copyright may be obtained for the form in which
these are expressed because of the skill and labour that goes into the writing
of stories or features and in the selection and arrangement of the material.[22]
The most important Indian Case on this subject is Eastern Book Company v.
D.B. Modak[23], where the Supreme Court discarded the ‘Sweat of the Brow’
doctrine and shifted to a ‘Modicum of creativity’approach as followed in the
US. The dispute is relating to copyrightability of judgements. The facts of the
case is that SCC, the Supreme Court Case reporter, was aggrieved by other
parties infringing their copyright and launching software containing the
judgements edited by SCC along with other additions made by the editors of
SCC like cross references, head notes, the short notes comprising of lead
words and the long note which comprises of a brief description of the facts
and relevant extract from the judgments of the court and standardisation and
formatting of text, etc. The notion of “flavour of minimum requirement of
creativity” was introduced in this case. It was held that to establish copyright,
the creativity standard applied is not that something must be novel or non-
obvious, but some amount of creativity in the work to claim a copyright is
required. The Court held that these inputs made by the editors of SCC can be
given copyright protection because such tasks require the use of legal
knowledge, skill and judgement of the editor. Thus, this exercise and creation
thereof has a flavour of minimum amount of creativity and enjoy the copyright
protection.
Accordingly, the Court granted copyright protection to the additions and
contributions made by the editors of SCC. At the same the Court also held
that the orders and judgments of the Courts are in public domain and
everybody has a right to use and publish them and therefore no copyright can
be claimed on the same.

In subsequent cases, the Indian courts followed this approach and completely
rejected the plea to protect mere works of compilation under copyright.
[24] Copyright is conferred on those works which has originated from author
and which is not merely a copy of the original work. This does not push the
standard of originality expected to a considerably high level, but brings in a
subtle balance between ensuring reward for the efforts of an author while also
maintaining a reasonable standard in the materials protected under law.
CONCLUSION
The primary objective of copyright is not to reward the labour of authors but
rather to protect expression while encouraging others to build freely upon the
ideas and information conveyed in the expression.  But the standard of
originality cannot be placed at a high threshold since majority of the work
would fall out of the preview of copyright, at the same time it should not be so
low that the degree of protection of work conferred by law degrades to a
position where any derivative work with just trivial modifications from that of
the original work will be brought under the purview of protection.

This balance is very crucial and is to some extend achieved by the US

jurisprudence, which follows the criterion of ‘Modicum of Creativity’ which has
a slightly higher expectation of originality from the authors as compare to  the
jurisprudence in UK, which  follows the doctrine of ‘Sweat of the Brow’.
The jurisprudence relating to ‘Originality’ of copyright in India is developing in
the right direction. Since the Modak Case[25], we have deviated from the UK
jurisprudence and are coining our own checks and balances so that the
literature and other works, with a degree of originality,are properly brought
under copyright protection while denying such protection to  mere  compilation
without any degree of creativity from such privileges.