File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Test Of Originality In Copyright

What Is Originality?

The general meaning of "Originality" is something newly developed or recently discovered which didn't happen previously. The term "originality" is often applied as a compliment to the creativity of artists, writers, and thinkers. SECTION 13(1)(a) of the Copyright Act, 1957 states that copyright shall exist in all original literary, dramatic, musical & other artistic works done by people across india. The aspect of Originality in the Copyright Act, 1957 prevents the new creation, artistic work, or inventions from forgeries, reproducing similar creations, or other unoriginal works. Originality in the art form inspires artists, creators, inventors to do more and people take it as a compliment for their creative work.

The Act does not state what 'original' means. In law, more stress is laid on how an idea had been expressed. There is no definite and single, unified concept of "originality" and there have been different doctrines which have tried to define the concept.

These different doctrines are:
  1. Doctrine of Sweat of the Brow
  2. Civil law approach
  3. Modicum of Creativity
  4. Skill and Judgment test
  5. Doctrine of Mergers

Doctrine Of Sweat Of The Brow

The Doctrine of Sweat of the Brow refers to where more importance is given as to how much labour and diligence it took to create a work, rather than how original a work is.


The Doctrine of Sweat of the Brow is referred to when the court gives more emphasis on the efforts and labour that was put in to make that product rather than the originality in the product or how original is the product in that sense.

The "Sweat of the Brow" doctrine can hence be thought to be one which does not distinguish between an author and a publisher.

University of London Press Ltd. V. University Tutorial Press Ltd.
In University of London Press Ltd. V. University Tutorial Press Ltd., the court held the word 'original' must be construed to mean as originality of expression. There is no requirement for revolutionary and unprecedented new ideas but the way thought is expressed must be original. In order for a work to gain copyright protection, it must originate from the author � the legal meaning given to 'original'.

Civil Law Approach

Civil law approach accord more importance to the rights of the author/composer and have more stringent criteria on originality. These rights are known as the Authors' rights or droit d'auteur. It is an essential feature of authors' rights that the object which is protected must arise from the creativity of the author rather than from his or her simple effort or investment.

Modicum Of Creativity

This doctrine requires a minimal level of creativity in the artistic work to make their product copyrightable. The courts have given importance to the creative and subjective contribution of the author. It also laid emphasis on the literary and artistic merit of the work.

Bleistein V. Donaldson Lithographing Co.
In Bleistein v. Donaldson Lithographing Co., decided in 1903, the court rejected the notion that originality should be decided with reference to the artistic merits of the work. The grounding criterion for originality in this case was an irreducible, unique personality in the person; in creating a work, even a mere "copy" of an object, the artist projects that irreducible core onto nature, such that the work necessarily bears the imprint of the artist, and no one else. 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.

Alfred Bell & Co. v. Catalda Fine Arts, Inc.
In the case of Alfred Bell & Co. v. Catalda Fine Arts, Inc., US Courts observed that the test is valid when the author is trying to create some additions or advancement in other artist's work instead of working on something original of his own. The Bleistein test can be satisfied even if the author was attempting to perfectly reproduce another work, rather than create an original work of his or her own. 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. Even if the variation is accidental, the court held, the copier is still the origin of that variation.

Skill And Judgment Test

The Canadian Supreme Court has developed a mid-way approach between the two doctrines. The skill and judgment required to produce the work must not be so trivial that it could be characterized as purely mechanical exercise. This approach is sometimes known as the "Skill and Judgment" test.

C.C.H Canadian Ltd. v. Law Society
C.C.H Canadian Ltd. v. Law Society of Upper Canada by holding that the two positions i.e. the "Sweat of the Brow" and "Modicum of Creativity" are extreme positions. The Court preferred a higher threshold than the doctrine of "sweat of the brow" but not as high as "Modicum of Creativity". The Canadian standard of copyright is based on Skill and Judgment and not merely labour.

Doctrine Of Merger

Apart from the "Sweat of the Brow", "Modicum of Creativity" and the mid-way approach towards the concept of originality under copyright regime, there is also a doctrine of "Merger" which propounds that that where the idea and expression are intrinsically connected, and that the expression is indistinguishable from the idea, copyright protection cannot be granted.

Baker v. Selden
The case of Baker v. Selden was the first US Supreme Court case to explain this doctrine, holding that exclusive rights to the "useful art" described in a book was only available by patent; the description itself was protectable by copyright. US courts are divided on whether merger doctrine constitutes a defence to infringement or prevents copyrightability in the first place, but it is often pleaded as an affirmative defence to copyright infringement.

The various approaches mentioned above which make an attempt to define the concept of originality show that there is no single, unified concept of originality. The threshold of originality has changed from "sweat of the brow" to "modicum of creativity" and also different jurisdictions have different criteria for originality.

The term "Originality" has no specific meaning but has several arenas with which courts determine the originality in the issues of a particular concerned person. The originality hence is understandable differently in different countries in different jurisdictions.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly