Author: Anshika Tiwari, IV year of B.A.,LL.B(Hons.) From Hidayatullah National Law University Raipur.
DOCTRINE OF SWEAT OF THE BROW TO DOCTRINE OF MODICUM OF CREATIVITY
ABSTRACT
Copyright is a bundle of exclusive legal rights accruing to any person who is a creator of literary, dramatic, artistic and musical works. These rights enable the originator to protect his work from unauthorised reproduction, duplication and use by others.
Section 13 of the Copyright Act of 1957 categorically states that copyright shall subsist in ‘original’ literary, dramatic, musical and artistic works; cinematograph films and sound recording. The aforesaid categories of works have been qualified by the word ‘original’ meaning thereby originality is the sine qua non of copyright protection under the act.
Originality requirement is thus an inseparable part of copyright protection and the former and latter go hand in hand.
While the act does lay down what are the kinds of original works eligible for protection, it nowhere does provide what is the quantum of originality that would suffice to obtain protection. Since the legislation remains silent on the question of how much original a work ought or ought not to be, this vital question has mostly been left to be decided by the courts throughout jurisdictions.
INTRODUCTION
Originality in the context of copyright protection is not construed in its literal sense. It does not mean something unique or unheard of. A work, in order to be original under the copyright realm need not be the first of its kind. Intellectual Property law recognises the fact that each work is bound to have some degree of influence from the earlier works of the same kind.
The only originality expected for copyright protection is some element of human endeavour or creativity. The work should not be something novel but the only thing expected of it is that it should not be a mere copy of another work. What will be the extent of this creativity was a hazy area and there still is no definite standard of originality. Different countries follow different doctrines to assess originality in a work. The two most common ones are the Doctrine of Sweat of the Brow and The Doctrine of Modicum of Creativity.
DOCTRINE OF SWEAT OF THE BROW
Stated simply, this doctrine gives due credit and protection to a creator’s work as long as he as toiled over it in some or the other way. This doctrine recognises the labour both human and material put in by the author in his work irrespective of any ingenuity his work may or may not contain.
According to the sweat of the brow doctrine, simple diligence exercised in the course of creating the work is sufficient for granting copyright protection. It dispenses with the creativity requirement altogether.
Mere industrious gathering or putting together of data or facts even when such compilation lacks any imagination or judgement entitles the compiler to copyright protection under this approach. Going by this doctrine, dictionaries, encyclopedias, almanacs and gazettes are as much a subject of copyright protection as any other creative work notwithstanding the fact that they are mere compilations of pre-existing facts without any creative thought process involved.
Origin of the Doctrine
This doctrine took birth in UK in the 1900 in the famous case of Walter vs. Lane.
In this case, the oral addresses given by the then Prime Minister of UK, Earl of Rosebery, were jotted down by the reporters of The Times newspaper in the form of short notes. Later, these speeches were reproduced verbatim in the form of newspaper reports. Thereafter the respondents also published a book containing the speeches, the content of which was sourced from the newspaper reports. The proprietors of the newspapers sued the publisher John Lane for copyright violation. The litigation concerned a book published by Lane entitled “Appreciations and Addresses delivered by Lord Rosebery” in which allegedly a series of reports formerly published in The Times was copied word by word.
The question before the court in this case was whether the reporters who reproduced the speeches word to word would be qualified as authors under the Copyright Act 1842?
The Court of Appeal initially said that since the reproduction contained nothing original, it will not entail copyright protection. However the House of Lords reversed the previous decision. The House of Lords held that the reporters were authors of these speeches within meaning of Copyright Act 1842. It found that the process of creating the reports involved efforts, skill and judgement which were sufficient to make the reporters’ work original. This is still the position in UK and the decision in Walter v Lane [1900] is considered as the authority for the notion of “originality” in the UK copyright law.
The doctrine of sweat of the brow protects any form of factual compilation, the only requirement being that it should not be a borrowed effort. This school of thought altogether discards creativity as a requirement for copyright protection. Thus, the doctrine holds that labour or industry per se is sufficient to make the work original and hence copyrightable. Any work which is original in the sense that it is not copied from that of another is copyrightable even though it may be just a mechanical work.
“UNIVERSITY OF LONDON PRESS LIMITED vs. UNIVERSITY TUTORIAL PRESS LIMITED”
The University of London appointed two examiners and they were entrusted with the task of setting papers for matriculation examinations. They were at liberty to choose their questions given the syllabus and the knowledge expected from students. The University of London issued a resolution to the effect that the copyright of all papers set by the examiners employed by them shall vest with the university itself. The University entered into an agreement with the University of London Press Limited whereby the copyright and all rights to publish the matriculation examination papers were assigned to the latter in lieu of a consideration. Later, a publication was made by the University Tutorial Press Limited 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 those questions and it criticised the manner in which the questions were framed. The plaintiff, University of London Press, brought a suit against University Tutorial Press for copyright infringement.
The question before the court was whether the question papers were an ‘original literary work’ within the meaning of the act?
The stand of the plaintiff was that the term “literary work” as used in the Act covered a broad ambit and included all works 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, on the contrary contended that the questions were of a common category and there was nothing unique or distinct enough to attract copyright protection.
The Court held that,
“Copyright Act does not require that expression be in an original or novel form; the only condition is that it should originate from the author”. The plaintiffs had already proved to the satisfaction of the court that they had thought out the questions themselves. “The question papers are original within the meaning of copyright laws as they originated from the authors.” The court held that the plaintiff’s claim for copyright cannot be dismissed merely because similar questions have been asked by other examiners as well.
Thus, the court made it clear that originality cannot be equated with novelty.
“LADBROKE vs. WILLIAM HILL”
This case arose in Britain in the early sixties and the dispute was concerned with infringement of copyright vested in the football betting coupons issued by the respondents, William Hill Football Ltd. The respondents had been using the coupons since the early 1950s. Subsequently, in 1969, the appellants decided to enter the field and began sending out coupons substantially similar to those of the respondents.
The respondents brought a copyright claim against the appellants, Ladbroke (Football) Ltd. Ladbroke admitted the fact that they had copied the material of William Hill but said that they were mere compilations and had no protection on them.
The House of Lords ruled in favour of William Hill and held that the betting coupons were “original” if not artistic compilations and were subject to copyright protection.
Rationale
In delivering their judgment, the Lords emphasised the amount of work, money and ingenuity or uniqueness that the plaintiff’s work bore of which the defendants carried out a substantial copying. The decision cemented the centrality of the requirement of “labour, skill and/or judgment” to any finding of originality.
“BURLINGTON HOME SHOPPING PVT LTD vs. RAJNISH CHIBBER”
The plaintiff in this case was in the business of direct mail marketing under which his company used to offer consumer merchandise by publishing catalogues in newspapers/magazines which were posted to a select list of clients who used to then place orders by email. For the purpose of the business, the plaintiff had compiled a customer database or clientele by investing substantial amount of money and efforts.
The defendant used to work with the plaintiff’s company but had no role in the compilation business. After severing ties with the plaintiff company, he started his own business in the same field as a competitor of the plaintiffs. He caught hold of the customer database of the plaintiffs and used the same to contact the clients of the former and establishing business relations with the plaintiff’s customers.
The plaintiff contended that the defendants have infringed their copyright in the database. The question here was whether a compilation of mailing addresses of customers amounted to original literary work and whether any copyright subsisted in such a work. The court inter alia relied upon the judgments of the William Hill case and that of Govindan vs Gopalakrishna and answered the question in the affirmative.
It held,
“Compilation of addresses developed by any one by devoting time, money labour and skill though the sources may be commonly situated amounts to a `literary work' wherein the author has a copyright.” “The determining factor in finding whether another person's copyright has been infringed is to see whether the impugned work is a slavish imitation and copy of another person's work or it bears the impress of the author's own labours and exertions.”
DOCTRINE OF MODICUM OF CREATIVITY
There has been a paradigm shift in the standard of originality and there has been an inclination to move towards a more wholesome, inclusive and logical approach which does not merely reward diligence but also looks for traces of intellect, creative endeavour and judgement in the work.
This doctrine stipulates that, in addition to being an independent creation, the work must also exhibit a modicum of creativity. Labour or toil by the author does not guarantee artistic merit and therefore it is necessary to look beyond the efforts and see if the work has any traces of creativity or not. The threshold of creativity required is not too high but only a minimum amount of creative effort in the work is sufficient.
The Supreme Court of USA straightaway rejected the doctrine of Sweat of the Brow in the case of Feist Publications, Inc. v. Rural telephone Service Co.
Rural Telephone Service Company was in the service of providing telephone services. A local law required all telephone service providers to issue an up to date telephone directory on a yearly basis. Using the available data Rural Telephone Co. published its directory. Feist Publications Inc. was a publishing company whose directories covered a wide geography and included 11 different telephone service areas. Both the companies used to earn revenue from yellow page advertising. Feist did not have an independent access to any subscriber information and thus it used to approach telephone companies in its area for getting listings. Rural Telephone Co refused to license its listings to Feist after which the latter used them without permission. Feist then hired personnel to investigate and verify the data. Therefore Feist’s listing had more information than those of Rural’s. Since some listings of Feist were identical to that of Rural Telephone Co, the latter brought an action against Feist for violation of copyright in its compilations. The question was whether a compilation akin to a telephone directory is a subject to copyright protection.
The Court held that facts per se are not copyrightable but compilations of facts are. This was due to the fact that compilations demonstrated a unique way of representing facts, used different ways of arranging them. They possessed a minimal degree of creativity and were hence copyrightable. The Court held that Rural’s directory failed to meet the required minimum benchmark of creativity as it was just a compilation of data. A work, in order to be protected must possess something more than a de minimis quantum of creativity which Rural’s work fell short of.
Arranging telephone numbers and basic subscriber information in alphabetical order was nothing novel and was a common practice in telephone directories. Copyright rewards creativity and not effort and since Rural’s work itself lacked originality, there was no way Feist’s work could be said to be infringing it. Hence, their case against Feist was dismissed.
WHAT IS THE INDIAN SCENARIO?
In India, the doctrine of Brow sweat was followed for a considerably long period of time. However, it was in the case of Eastern Book Company vs. D.B. Modak that the court discarded it and moved to the modicum of creativity standard as followed in the US.
The question before the court in this case was,
What is the standard of originality required in a derivative work to render it fit for copyright protection?
The appellant (s) EBC and Eastern Publishers Pvt Ltd were in the business of publishing law books. They published a law report by the name of SCC which contained all the supreme court cases procured from the apex court’s register.
The judgements were edited to make them user oriented and for this fonts and paragraph formatting were changed and head notes and foot notes inserted.
The respondents created a software and copy pasted the entire report of the plaintiffs on a CD ROM. In particular, EBC alleged that the defendants’ have copied EBC’s sequencing, selection and arrangement of the cases along with the entire text of the edited judgements verbatim.
The Court held, “The derivative work produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court”. The judgements of the courts are in public domain therefore free to be used by anyone so there cannot be any copyright over them. However, the appellants had expended considerable skill and intellect in editing the judgements. The way the judgments are presented in the reports; includes footnoting, editorial notes, cross-referencing, selection, sequencing, and arrangement of the judgments, making it the original work of art in itself; entirely different from the actual raw data collected from the register of the supreme court. This by no means is merely a mechanical process, but also a skilful use of personal brain, the court said.
The rationale behind the verdict was that any derivative work should substantially differ from the original work and must add some value to it. This decision was a path breaking judgement in the course of jurisprudential development of copyright law in India.
The court, instead of relying on any one doctrine solely, found a middle ground and attempted to harmoniously reconcile the persistent conflict between the doctrine of sweat of the brow and modicum of creativity.
By the judgement the court made it clear that the standard of originality is not so steep that the work needs to be extremely innovative or unconventional but at the same time it is also not so low that mere application of labour and capital would render it copyrightable. What is required is ‘Exercise of one’s skill and judgement’ in the work.
CONCLUSION AND SUGGESTION
The aim of copyright law is to maintain an equilibrium between granting copyright protection as a form of incentive for the author and at the same time restricting overprotection which may result in monopolisation of a an author over a particular work/genre of work. For this very reason the cardinal principle followed is that only expression is copyrightable and not the idea itself. Copyright subsists over an original expression and originality is the sine qua non of copyright protection. Law has been practical enough to hold that this originality does not mean novelty or uniqueness; it only means that the work should originate from the author and not just be an imitation of previous works. The doctrine of sweat of the brow believes that mere industry or labour is sufficient to grant protection. While this is still the norm in most common law countries, including UK, the United States transitioned to the modicum of creativity approach which gives primacy to some amount of creative effort. This approach is more plausible and logical as in my opinion it fulfils better the underlying motive behind copyright law. Every work claiming copyright protection must bear an imprint of the author’s personality, must be substantially different from what is already available.
The threshold of creativity cannot be too high as it will lead to majority of works falling outside copyright purview and the same time it cannot be so low so as to offer protection to every copied work having just trivial modifications. The balance between the two approaches is the key so that every genuine effort is rewarded and at the same time no one can enjoy protection riding upon the work of another.