— The Ten Commandments
The Eighth Commandment of Christianity but the first of the copyright law. It is believed that the moral basis for copyright law derives its source from this Eighth Commandment1.
Copyright law deals with providing rights in respect of certain works which it recognises as being the intellectual creations of their authors and seeks to protect the rights of the authors and/or the owners in respect of such works. The reason why there is a need for the law of copyright has been succinctly explained by Chinappa Reddy J. in Gramophone Co. v. Birender Bahadur Pandey2, wherein he stated that :
“An artistic, literary or musical work is the brainchild of the author, the fruit of his labour and so, considered to be his property. So highly is it prized by all civilised nations that it is thought worthy of protection by national laws and international conventions.”
Copyright is a statutory right and exists only in the works which qualify for protection under the Copyright Act, 1957 (hereinafter referred to as ‘the Act’). Copyright grants to the owner and/or the author of a work a bundle of rights in respect of the work as are enumerated in S. 14 of the Act.
Relevant provisions of the Act :
At the outset, it would be instructive to note what is meant by the term ‘work.’ As defined in S. 2(y) of the Act, a work means either a literary, dramatic, musical or artistic work or a cinematograph film or a sound recording. Thus, these are the works in respect of which copyright may subsist. It may be noted that each of these kinds of works are further defined and explained in the Interpretation Clause of the Act.
However, not all literary or artistic works can claim to have copyright, but only those which comply with the requirement of S. 13 of the Act.
S. 13 of the Act, inter alia, provides as under :
“Works in which copyright subsist.
(1) Subject to the provisions of this Section and other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say —
(a) original literary, dramatic, musical and artistic works;
(b) Cinematograph films; and
(c) Sound recording.”
In light of the above, it may be appreciated that a literary, dramatic, musical or artistic work to qualify for copyright protection must be original. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author3.
It is in this scenario, that the question arises as to what is the standard of originality required to obtain copyright protection. This has been a vexed question over the years to which the Courts have applied different standards.
At the outset, it may be appreciated that the said question has been recently considered by the Apex Court in Eastern Book Company v. D. B. Modak4 (hereinafter referred to as ‘the Eastern Book case’) wherein the Apex Court was dealing with the issue of copyright in the text of the copy-edited judgments of the Supreme Court as reported in the law report ‘Supreme Court Cases’ and whether the said copy-edited judgments were original literary works entitled to copyright protection. The Apex Court classified the copy-edited judgments as a form of secondary or derivative works, i.e., those literary works which are based on existing subject matter.
It is in this context, that the tests to judge originality are being outlined, as have been applied over the years and as are identified in the Eastern Book Case and what is the test to be applied to judge originality now, has been laid down by the Supreme Court.
Sweat of the brow :
The first test identified before the Supreme Court with respect to identifying which works are capable of copyright protection was the ‘sweat of the brow’ or the ‘industriousness approach’ test. A plethora of judgments were cited in support of this theory by the petitioners, i.e., the Eastern Book Company to support the proposition that copyright does subsist in the copy-edited text of judgments of the Supreme Court. This approach is based on the proposition that a work that has originated from the author, is more than a mere copy of the original work, would be sufficient to generate copyright5. The underlying notion being to reward the hard work that goes into the creation of the work6.
The United States Supreme Court in the Feist Case7 observed that the classic formulation of the sweat of the brow theory is to be found in the following passage from Jeweler’s Circular Publishing Co.
“The right to copyright a book upon which one has expended labour in its preparation does not depend upon whether the materials which he has collected consist or not of matters which are publici juris, or whether such materials show literary skill or originality, either in thought or in language, or anything more than industrious collection.”
Thus, all that was required under this approach was to examine whether any skill, labour and capital had been expended in the creation of the work and that it was not a copy of another work. Once these two criteria were satisfied the work would be entitled to copyright protection.
Creativity standard/non-obviousness:
The other test identified by the Apex Court in the Eastern Book case is the creativity standard or the non-obviousness standard whereby a Court would be called upon to inquire whether the work possesses a certain degree of creativity and non-obviousness and is therefore novel so as to be entitled to copyright protection.8 This approach, however, seems to raise the bar of originality to an extremely high level, which is more befitting of patent law rather than copyright law.
Skill and judgment test:
In light of the said divergent approaches, the Supreme Court in the Eastern Book 9 case, after analysing, inter alia, the United States Supreme Court’s judgment in Feist Publications Inc. v. Rural Telephone Seroices10 and the Canadian Supreme Court’s judgment in CCH Canadian Ltd. v. Law Society of Upper Canada11 has propounded a middle path, consistent with the view of the Canadian Supreme Court, to judging originality which is not as low as the sweat of the brow standard, nor as high as the creativity standard. The Apex Court held that,
“Thus, the Canadian Supreme Court is of the view that to claim copyright in a compilation, the author must produce a material with exercise of his skill and judgment which may not be creativity in the sense that it is not novel or non-obvious, but at the sametime it is not the product of merely labour and capital.12”
Thus, according to the Supreme Court the test for judging originality would be to enquire whether the work has been created by skill and judgment and has the flavour of the minimum requirement of creativity. The work should not be produced merely by labour and capital but by skill and judgment and must have a minimal degree of creativity. Applying this test the Supreme Court in the instant case, held that the copy-edited judgments did not touch the standard of creativity required for copyright.”
Conclusion:
There was a need to reconsider the tests to be applied since, by applying the sweat of the brow test, Courts were recognising copyright in almost every work. Therefore, a slightly higher standard was required, for in essence, copyright being a part of intellectual property laws seeks to protect the intellectual creations and inputs and not every input. Hence, to that extent replacing of the words ‘skill, labour and capital’ with ‘skill and judgment’ seems to denote a paradigm shift from mere physical or mechanical exercise to a more mental exercise.
However, the test raises several new questions such as what is the minimum level of creativity that is now to be found to show that a work is copyrightable? what exactly is meant by the words skill and judgment, etc. ? The Courts will have to evolve further sub-rules or sub-tests to fortify and clarify the ‘skill and judgment’ test laid down by the Apex Court.
To highlight the Apex Court’s own interpretation of this test, it may be noted that the Apex Court held that the copy-edited judgments did not meet the standard of creativity and hence, were not capable of copyright creation. However, the Apex Court also held that the inputs of segregating paragraphs and numbering them as also indicating which judges have concurred and/or dissented were copy-rightable as these changes required the input of skill and judgment and they had a flavour of a minimum amount of creativity.
However, the Apex Court may want to reconsider some of its findings such as, for example, its finding that insertion of details as to consenting and dissenting judges has a minimum amount of creativity and that copyright would subsist in the same. For in such a case, the creativity could at the most be said to lie in the idea to identify and alter the text of the judgment to show where a judge has dissented or concurred, whereas the expression thereof is in terms of phrases commonly used such as ‘concurring’ or ‘partly concurring’, etc. It is well-settled law as has been laid down since 1978, by the Apex Court in R. G. Anand v. Delux Films14 that copyright only exists in the expression and not in the idea. Therefore, my view would be that the phrases used i.e., the expression of the idea are standard phrases used commonly, which subject to other factors such as whether a word or two words can be a literary work in itself or even qualify as a derivative work, cannot be said to possess any level of creativity and cannot be copyrighted by anyone person.
The phrases ‘concurring’ and/or ‘partly concuring’, etc. would not, despite the possibility of a high level of skill and judgment in deciding where to insert these phrases, meet the test of the minimum amount of creativity, as in judging the originality of a work what must be looked at is the expression and not the idea.
Thus, to conclude, I would submit that the test as laid down is a positive step forward and was required to raise the standard beyond the mere sweat of the brow test. However, it is essential that Courts interpret it in the true sense by applying all the factors involved as have been identified by the Canadian Supreme Court and not in the manner as interpreted by our Apex Court primarily identifying only skill and judgment. In order to enable to the new approach to work effectively, the creases will need to be ironed out.
