January 27, 2022

Concept of Originality and Subject Matter in Copyright

Enactment of Statute of Anne is perhaps the first instance of copyright laws. The statute was passed by the House of Commons to protect the rights and works of authors and publishers and abolish the existing monopoly of the Printing Press[1]. British copyright laws were primarily used as an instrument of censorship[2]. The Monopoly was created when Queen Mary issued a charter to the Stationers ‘Company (printing press) to be the only legal authority to produce and publish books. This was subjected to prior approval from the Crown, i.e. only works that were approved by the Crown were allowed to be printed[3]. Therefore, exclusive rights was vested in said Company and were additionally given the authority to confiscate unauthorized books. This created discontent among many authors and publisher leading to multiple riots. It was only on sanction of Anne (Statute of Anne) that settled this discord, which vested rights to authors to protect their work.

Copyright is that area of IPR that regulates the creation and use of cultural goods like books, songs, films and computer programs[4]. It protects not the idea rather the creative expression of the idea. There are three basic requirements for works to be copyrightable[5]–

1. Must be an original work

2. Must be in a tangible form, and;

3. Must be the work of an author

(For the purpose of this Article, focus will be placed on point 1)

Section 14 of the Copyrights Act, 1957 extensively defines copyright and Section 13(1) lists works where copyrights subsist. In general, these works would include-

  • Original Literary, dramatic, musical and artistic works;
  • Cinematograph films; and
  • Sound recording

Originality in this context would not be something that is novel or having aesthetic appeal, but is an independent creation of the author[6]. This means that the work must be from the authors own thought and must not be influenced by any exterior factor nor must it merely be some copy or minimal variation of an existing work. In this context, even if other similar works exist, the originality of the present work of the author would not be affected as long as it is an independent creation (i.e. not copied)[7].

The criteria of Originality has changed over the course of time, it moved from the doctrine of “Sweat of the Brow” that was established on the case of Walter Vs Lane[8] to the “Modicum of Creativity” doctrine. Sweat of the Brow dictates that a work of the author would be original if his skill and labour has been used. In the case above, the copyright issue was with regard to an oral speech that was verbatim reproduced in a newspaper report. The court here upheld that skill, labour and effort of the reporter was put into making the article, and hence would be copyrightable. Similar standing was also taken in the University of London Press Vs University Tutorial Press[9], wherein the court (also) substantiated the idea of Copyright as the protection of an idea-expression. They reiterated that originality is not a work of novelty or aesthetic appeal, rather a work that originates from the author itself.

This was later modified in the case of Feist Publications, Inc. Vs Rural Telephone Service Co.[10]The Court in this case refused to uphold the above doctrine instead shifted to that of “Modicum of creativity” wherein they stated that originality subsists in works that have exuded minimum creativity. This essentially means that the author must exhibit ample intellectual thought and ingenuity to his work. This shift in many ways protects the authors work from being copied. Sweat of the Brow Doctrine made it easy for people to claim the work of other authors as their own. However, the criteria of minimum creativity allowed unique idea expressions while protecting existing works. This was first introduced in India in the case of EBC Vs D.B Modhak[11].

For the longest time, India followed UK’s Sweat of the Brow rule but transitioned to the current doctrine. Moreover, the court in the present case held that any contributions made by the editors of SCC were copyrightable in nature and further stated that orders and judgements within public domain, hence not copyrightable.

The second and third criteria of criteria of Copyright would be would tangibility (fixation) and work of an author respectively. Fixation is when the work of an author is produced in a tangible form[12]. Tangible here is any expression that can be perceived, reproduced or communicated over a certain period. This further bifurcates tangible expressions into two categories- copies and phone records[13]. Copies here are works that can be perceived, reproduced or communicated through human perception or through machines, however this excludes phone records.[14] Objects in which sounds are fixed and can be perceived, communicated or reproduced through human perception or machines are considered as phone records, this however does not include those works accompanying motion pictures or other audiovisual works[15].

The other aspect of Copyright would be its subject matter. As mentioned, Copyright protects the expression of the idea, and it must be done so in a tangible form. Section 13 of the Copyrights Act, gives a detailed idea of what works can be considered as a copyright. The World Intellectual Property Organization in its handbook has laid down the works are copyrightable, a few examples are given below[16]–

  • Literary work – novels, short stories, poems, dramatic works, etc.
  • Musical works- chorus, operas, musicals, etc.
  • Artistic works- 2 dimensional or 3 dimensional works

These are just few examples of copyrightable works, the handbook and Section 13 of the Act are extensive in identifying these works. Copyright is not only limited to the above-mentioned characteristics, it includes economic and moral rights which have been discussed under Section 14 and 57 of the Copyright Act respectively.

Copyright as such only protects creative expressions but does not extend to generic ideas. The case of RG Anand Vs Delux Films[17] has established that. It also bring to light the idea-expression dichotomy, which has been inferred throughout this article. Copyright is not the only form of intellectual property protection; it can also be regulated through patents and trademark among many others. As seen Copyright is multifaceted and wide in nature, it protects any form of expression as long as it remains original and creative.


[1] Edward G.Hudon, “Mark Twain and the Copyright Dilemma.” American Bar Association Journal, vol. 52, no. 1, 1966, page 56

[2] Siva Vaidhyanathan, “Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity”, New York: New York University Press, 2001, page 37-43

[3] Ibid.

[4] Lionel Bentley, Brad Sherman, “Intellectual Property Law”, (3rd Edition), Oxford University Press, Oxford, 2009

[5] Ibid.

[6] Ibid.

[7] Lionel Bentley, Brad Sherman, “Intellectual Property Law”, (3rd Edition), Oxford University Press, Oxford, 2009

[8] [1900] AC 539

[9] [1916] 2 Ch. 601

[10] 499 U.S 340 (1991)

[11] (2008)1 SCC 1

[12] Lionel Bentley, Brad Sherman, “Intellectual Property Law”, (3rd Edition), Oxford University Press, Oxford, 2009

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] WIPO Intellectual Property Handbook: Policy, Law and Use, Second Edition, 2004, Page 42-43

[17] AIR 1978 SC 1613

Author Details: Janavi Venkatesh (OP Jindal Global University)

The views of the author are personal only. (if any)

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