The word original has been mentioned in Section 13(a) of the Indian Copyright Act, 1957 and has been prefixed before literary, dramatic, musical and artistic works. The common notion of original is new or never done before. In law originality is interpreted as to how an idea is expressed. ‘Originality’ is the key factor in determining whether a work can be protected under Copyright law but the term has not been defined under copyright law of any country be it UK, USA or India. Different doctrines have been used over the world to assess originality.
Various Copyright Acts around the world are not concerned about originality of ideas, rather about the originality in expression of thought. For example, the Ramayana lies in the public domain and cannot be copyrighted. A number of authors can write original stories revolving around the facts of the Ramayna and these stories will be copyrightable. Therefore, it can be said that for a work to be original, the expression must have originated from the author and must not have been copied from any other work.
The scenario of originality is slightly different in copyright law, as compared to patent or trademark law where the question is of absolute novelty of the idea. In copyright, the work will be considered original if it bears intellectual conception by the author. Since original means in the sense of originating from the author, if a work if found to be similar to an earlier work it would still remain copyrightable so long as the author is able to show that he has created the work independently to the earlier work.
In determining the originality of the work, a number of considerations are made such as, what kind of work it is, whether fiction or non-fiction, primary or secondary. Along with this, considerations are also made that what is the medium of the work whether print, audio and visual. All these considerations are made because there is no defined formula to determine originality and the law is also under development. It is so that there is no single, definite and unified concept of originality.
To try to define the concept different doctrines have been developed like ‘Sweat of the Brow doctrine’ that grants rights by simple diligence during the creation of work and creativity is not given much importance. According to this doctrine the creator of a work is entitled to the effort and expense incurred by him. Alternatively, according to the ‘Modicum of Creativity Doctrine’, for a work to be copyrightable it must not only be original but have a certain amount of intellect and creativity involved in its’ making. The creativity is not expected to be high but a minimum creativity limit is set by law for a work to be copyrightable. In certain scenarios, according to ‘Doctrine of Merger’ there can be instances where idea and expression are inseparable and they are interconnected intrinsically. In such cases where idea and expression are so intermingled that the idea becomes the expression and vice-versa, copyright protection cannot be provided. It is so because providing copyright protection under such circumstances would lead to suppression of creativity which is not the objective of copyright law.
Apart from this, in 2004 in the case of CCH Canadian Ltd. v. Law Society of Upper Canada the Canadian Supreme Court found a mid-way between the approach of Sweat of the Brow approach and the ‘Modicum of creativity approach’ using Skill and Judgement Test. The Court was of the opinion that it was neither willing to set the standards of creativity too low nor too high. According to this approach the author must produce work involving his skill and judgement. The work need not be novel or non-obvious but must also not be a mere result of mechanical exercise i.e., labour and expense. This view of the court created a balance between right of the author to protect his work and reap benefits and also led to making the copyrightable work accessible to general public. This approach was considered to be the most neutral approach and the threshold of originality was also set at mid-level, i.e., neither too high nor too low. Indian Supreme Court also later followed a similar approach to strike a balance between two extreme positions that were traditionally being followed. This approach also supported the motive of existence of Copyright law as it is balanced approach.
The term originality has not been defined under the copyright law of any country therefore different approaches have been used by different courts of different jurisdictions to determine originality. To determine originality, the factors used in all jurisdictions are independent labour and extent of creativity. There are different standards of creativity set by different countries around the globe, ranging from minimal to very high. Many, including India, have settled on a moderate path.
Author: Imran Rizvi, Legal Intern at PA Legal.
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