Originality in Copyright Law

Originality Requirement
in Copyright Law
Mr. Pratyush Kumar

National Law University, Delhi
Learning Objectives
To understand the need and
nature of the requirement of
originality in copyright law
The concept of
originality
The legal tests for

originality
To understand the
position in India
CONTENTS:-
Introduction
Originality:
Meaning
Originality:
Tests
The Position in
India
Conclusion
INTRODUCTION
Invention of the
Printing Press in the
fifteenth century
The Licensing
act, 1662
Lord Justice
Mansfield’s words in
Millar versus Taylor
[(1769) 4 Burr. 2303]:
Originality: Meaning
• The ingenuity of an author lies in his

expression of the known ideas.
• The way in which an author chooses to

arrange the known forms of expression
(words, musical notes, objects, et. al.) is
unique for each author and that
uniqueness is what we call Originality.
ORIGINALITY: IT’S REQUIREMENT
 Lockean Theory of Property

 Personhood Theory
 Incentive Theory of Intellectual Property
 Promoting the Progress of Science and useful
Arts
ORIGINALITY: TESTS
QUALITY OF A WORK
IRRELEVANT
Bleistein v. Donaldson Lithographing Co.

188 US 239 (1903):
› “The copy is the personal reaction of an
individual upon nature. Personality always
contains something unique. It expresses its
singularity even in handwriting, and a very
modest grade of art has in it something
irreducible which is one man's alone. That
something he may copyright unless there is
a restriction in the words of the act”
ORIGINALITY: TESTS
DERIVATIVE WORKS: THE
BIGGER ISSUE
THE ‘SWEAT OF THE BROW’ DOCTRINE:
Walter v. Lane [1900] A.C.

539 can be said to be the
paradigmatic “Sweat of
the Brow” doctrine case.
Lord Halsbury laid down that

there is considerable labour
involved in “reproducing spoken
words into writing or print and
first publishing it as a book”.
And so, if a telephone

directory can be a protected
by Copyright, so can a
verbatim report of public
speeches.
ORIGINALITY: TESTS
THE ‘CREATIVITY STANDARD’ BIGGER
DOCTRINE:ISSUE
In Financial Information, Inc. v.

Moody's Investors Service 751 F2d
501, The Second Circuit affirmed
that “a compilation may receive a
valid copyright only if something has
been added to the data: the
"authorship" of the compiler in
making the requisite selection,
coordination, or arrangement of the
data.
Lord Robertson’s in his dissenting

judgment in the landmark case of
Walter v. Lane highlights the nature
of reporting a speech verbatim,
which is reporting it as it is. On this
premise, he further states that a
copyright cannot subsist in such a
verbatim reporting of a speech
because there is no scope of any
“construction” on the part of the
maker.
ORIGINALITY: TESTS
BIGGER
FEIST PUBLICATIONS: A SOLUTION ISSUE
ONCE AND FOR ALL?
In Fiest Publications v. Rural Telephone Service Co., 111 S Ct

1282 (1991), on the question of copyrightability of compilations,
the Supreme Court of United States emphatically laid down the
following dictums:
1. "author" is "he to whom anything owes its origin; originator;
maker”
2. “Facts do not owe their origin to an act of authorship... the
first person to find and report a particular fact has not created
the fact; he or she has merely discovered its existence.”
3. The choices undertaken by the compiler as to selection and
arrangement, “so long as they are made independently by
the him/her and entail a minimal degree of creativity, are
copyrightable”. “Copyright protection may extend only to
those components of a work that are original to the author.”
ORIGINALITY: TESTS
BIGGER
FEIST PUBLICATIONS: A SOLUTION ISSUE
ONCE AND FOR ALL? CONTD.
4. “...Originality is not a stringent standard; it does not require

that facts be presented in an innovative or surprising way. It
is equally true, however, that the selection and arrangement
of facts cannot be so mechanical or routine as to require no
creativity whatsoever. The standard of originality is low, but it
does exist ....”
5. The “Sweat of the brow” doctrine is rejected by the Copyright
statute as it requires selection, coordination and arrangement
of facts in such a way that it “as a whole constitutes an
original work of authorship.”
THE POSITION IN INDIA
• R.G. Anand versus Delux Films and Ors, AIR1978SC1613
• “Where the same idea is being developed in a different manner…
similarities are bound to occur. In such a case the courts should
determine whether or not the similarities are on fundamental or
substantial aspects of the mode of expression adopted in the
copyrighted work. If the defendant's work is nothing but a literal
imitation of the copyrighted work with some variations here and there
it would amount to violation of the copyright.…..in order to be
actionable the copy must be a substantial and material one.”
• “One of the surest and the safest test to determine whether or not
there has been a violation of copyright is to see if the reader, spectator
or the viewer after having read or seen both the works is clearly of the
opinion and gets an unmistakable impression that the subsequent
work appears to be a copy of the original.”
THE POSITION IN INDIA CONTD…
• Eastern Book Company and Ors. versus D.B. Modak and Anr., AIR2008SC809,
(2008)1SCC1
• The touchstone of Law relied on by the Court:
1. Section 52(1)(iv)(q) excludes the reproduction or publication of any

judgment or order of a Court, Tribunal or other judicial authority from
copyright unless the Court, Tribunal or any other judicial authority
makes it copyrightable.
2. The Copyright Act is not concerned with the originality or literary merit.
3. A copyrightable derivative work should be original in the sense that by
virtue of selection, co-ordination or arrangement of pre-existing data
contained in the original work, the new derivative work is somewhat
different in character.
4. To secure a copyright in the judgments delivered by the court, it is not
sufficient to show that the author has produced the material with merely
labour and capital.
5. Derivative work produced by the author must have some distinguishable
features and add flavour to raw text of the judgments delivered by the
court.
CONCLUSION
The present Law: Fiest
Publications or CCH Canadian Ltd.
or Eastern Book Company case;
“minimal amount of
originality” test applied by
most courts
Encouragement and promotion of

Intellectual Property, one
originating anew from the human
intellect and
Discouragement of free
riding on someone else’s
intellectual property
Thank You

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Originality Requirement

Mr. Pratyush Kumar

The legal tests for

• The ingenuity of an author lies in his

• The way in which an author chooses to

 Lockean Theory of Property

Bleistein v. Donaldson Lithographing Co.

Walter v. Lane [1900] A.C.

Lord Halsbury laid down that

And so, if a telephone

In Financial Information, Inc. v.

Lord Robertson’s in his dissenting

In Fiest Publications v. Rural Telephone Service Co., 111 S Ct

4. “...Originality is not a stringent standard; it does not require

1. Section 52(1)(iv)(q) excludes the reproduction or publication of any

Encouragement and promotion of

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