The article 'Originality under the Copyright Law - A Conceptual Framework' by Snehil Sharma discusses the concept of originality in copyright law and retraces its evolution with the advent of intellectual property rights.

The article 'Originality under the Copyright Law - A Conceptual Framework' by Snehil Sharma discusses the concept of originality in copyright law and retraces its evolution with the advent of intellectual property rights. It tends to highlight the Indian scenario relating to originality and statutory provision relating to the same. The role of the judiciary in the evolution of originality shall also be analyzed in this article. Originality is the fundamental yardstick set by copyright...

The article 'Originality under the Copyright Law - A Conceptual Framework' by Snehil Sharma discusses the concept of originality in copyright law and retraces its evolution with the advent of intellectual property rights. It tends to highlight the Indian scenario relating to originality and statutory provision relating to the same. The role of the judiciary in the evolution of originality shall also be analyzed in this article. Originality is the fundamental yardstick set by copyright regimes around the globe to assess whether copyright protection shall be offered to a particular work or not. The concept of "Originality" in layman's terms refers to an author's original intellectual work. Copyright protects the public domain by enforcing the originality doctrine, which prevents anybody from claiming ownership of an expression.


Intellectual property rights are those rights that allow you to create an exclusive monopoly over your creation, though there is a certain restriction to such exclusive rights. Hence, it is very crucial to make sure prior to granting such rights that there is no restriction on the components that foster creativity, such as ideas, details, and abstract knowledge. Apart from this, there are certain minimum standards that are supposed to be fulfilled in order to seek intellectual property protection. One such requirement is the "originality" of creation.[1]

Originality in works protected by copyright is a criterion of every copyright regime in existence. The definition of "original" as it is generally understood is "novel" or "not done before." The key to gaining copyright protection is a novelty. Nonetheless, an "idea" and "an expression of the idea" have been distinguished. A unique expression of an idea qualifies for copyright protection even while the idea itself does not.

Historical Background

According to conventional wisdom, the emergence of modern copyright law took place in Europe during the fifteenth century through the advent of printing, which made it possible to disseminate ideas and information contained in the literary form widely and inexpensively. Because of the increased demand for printed books brought about by the rise in literacy, it become more and more apparent that the work of writers and publishers should be safeguarded from unauthorized copying. The first copyright law was passed as a result of the same.[2]

Statute of Anne

The first ever copyright law in the world was the Statute of Anne, which was passed by the British Parliament in 1710. It granted copyright protection to the author of the work. The primary objective of the Act was to identify and advance the public interest and it intended the demise of the printing monopoly and improve accessibility to literature.[3]

The Statute of Anne recognized the author as the owner of the right to allow copying and worked to promote competition in publishing houses by prohibiting monopolies. The eighteenth century also saw ideological disagreements about the propriety of treating artistic creations as property, how to discern between tangible and intangible goods, and how to preserve the free exchange of ideas for the benefit of the general populace.[4]

Other copyright legislations based on the Statute of Anne progressively emerged in other nations as well, but such copyright legislations were not coordinated internationally until the 19th century. However, the Berne Convention was adopted in the year 1886 to facilitate the creation of worldwide norms for copyright protection and to allow reciprocal recognition of copyright across member states.

Berne Convention & Originality

The Berne Convention broadened the definition of exclusivity by introducing the concept of "originality" for the first time as the bar for identifying the protected subject matter. The "originality" requirement included protection against "reproduction" acts, such as picking specific passages from the artistic work or creating other adaptations like translations for which the simple protection against duplication was not considered sufficient.

According to the Berne Convention, there are two fundamental components of protection: first, "national treatment," which states that works created in one of the Member States must be protected in all Member States in a manner similar to how those States protect the work of their own citizens, and second, minimum rights, which states that the Member States' legal systems must provide the minimum levels of protection stipulated by the Convention.[5]

TRIPS Agreement

Berne convention was followed by the TRIPS which also had a focal view toward copyright protection. It was signed in the year 1994 as a result of the Uruguay Round of negotiations under the former GATT (now the World Trade Organization). It states that all signatory nations must abide by the substantive requirements (Articles 1 to 21) of the Berne Convention's 1971 Paris Act which is also inclusive of the "originality" mandate of the Berne convention.

An Overview of the Indian Copyright Act, 1957

India has had copyright laws since the British Empire colonized the country. India's first copyright law after independence was the Copyright Act of 1957. This Act was enacted, and it came into effect in January 1958. Since then, it has undergone five revisions in the years 1983, 1984, 1992, 1994, and 1999. This Act intends to fulfill its twofold objective i.e. ensuring that writers, musicians, artists, designers, and other creative people have the freedom to express their creativity, and the second objective to give others the opportunity to freely build on the ideas and knowledge made available by a work. The Indian Copyright Act, of 1957, as amended from time to time, and the Indian Copyright Rules, of 1958, govern the idea of copyright in India (Rules).[6]

The most recent modification was made in the year 2012 with the passage of the Copyright (Amendment) Act. This was an attempt to modify the framework based on the needs of the present-day scenario. Bringing the Copyright Act of 1957 into compliance with WCT and WPPT and expansion of copyright protection in the digital world are some of the significant changes made to the Act in 2012.

The Concept of Originality of Copyright In India

The Indian Copyright Act of 1957, through its section 13(1), specifically stipulates that only those literary, dramatic, musical, and aesthetic works which inhabit "original" characters shall be vested with copyright protection. This Act, however, doesn't prescribe any specific definition or methodology for the purpose of judging a work's originality. Therefore, the amount of originality that shall be necessary for a work to claim copyright protection is left at the discretion of the Court to decide. Courts often interpret originality based on the contention of parties and the facts of cases that are brought before the court.[7]

Two criteria must be applied while determining the "Originality" of a work. The first is the No-copying prerequisite which is a completely objective test and the second is the degree of Originality which is determined by the court and usually varies from case to case. Hence, it can be construed that Court's interpretation has a crucial role to play as far as determining the originality of work is concerned.

Role of Judiciary

The role of the judiciary in gathering clarity regarding "originality" has been commendable. The judiciary is solely responsible for introducing the parameters through which it can be determined what would be deemed to be an original work. Copyright is only granted if the work is original. Therefore, the applicant's work must be "original" and not have been plagiarized in any way in order to be eligible for copyright protection.[8]

Different doctrines have evolved through the judiciary of different jurisdictions for determining the originality of any work. However, divergent opinions exist about the two most crucial doctrines i.e. the "sweat of the brow" and the "modicum of creativity" doctrine, which describes how originality develops in any protected work.[9]

The "sweat of the brow" doctrine depends entirely on the talent and labour of the author, making the need for "creativity" in a work nearly unnecessary. In the case of Walter v. Lane[10], where an oral statement was verbatim duplicated in a newspaper article, this theory was first established in the jurisdiction of the UK. At issue was whether such verbatim copying would lead to copyright in the work. The court determined that the work deserved copyright protection since the reporter put out labor and expertise to recreate the speech.

This is still the scenario in the UK, and nations like New Zealand and Australia primarily adopt the UK's approach and use the notion of the "sweat of the brow" to establish a work's originality. In contrast, the US Supreme Court rejected the "sweat of the brow" doctrine in the case of Feist Publications Inc v Rural Telephone Service Company Inc[11]  and held that a "modicum of creativity" or a "creative spark" in the final product is a necessary requirement for a work to qualify as original'.

In another case of Theberge v. Galerie D'Art du Petit Champlain[12], the Canadian Supreme Court devised a middle-ground strategy where it articulated the need to strike a balance between the rights of artists and users. The Court evolved skill and judgment tests where it preferred a threshold that was higher than the doctrine of "sweat of the brow" but at the same time not as high as "modicum of creativity.

Apart from the doctrines discussed above, the merger doctrine was established for the first time by US Supreme Court in the case of Baker v. Selden[13], which held that copyright could be used to protect both the description of the "useful art" in a book and the exclusive rights to it.

Role of Indian Courts

For a very long time, India adhered fervently to the "sweat of the brow" doctrine. The criterion of "originality" observed in India, however, is not as low as the one observed in England. The Supreme Court abandoned the "Sweat of the Brow" doctrine and adopted the US-based "Modicum of creation" approach in Eastern Book Company v. D.B. Modak[14]. The issue is whether or not the judgments can be copyrighted. In this case, the idea of "flavour of the minimum requirement of creativity" was introduced. The Court granted copyright protection to the SCC editors' modifications and contributions.

The court observed that Section 13(1)(a) protects Originality in an artist's work, whereas Section 13(1)(b) and Section 13(1)(c) protect other unoriginal works, in the case of Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd.[15] Section 14(1)(a) of the Copyright Act of 1957 discusses original work created by individuals, whereas S. 14(1)(e) deals with films and recordings, a field that is subject to restrictions under the copyright act and to which this section is applied.

The Delhi High Court ruled in Polo/Lauren Company LP v. Sandeep Arora & Ors that in order to obtain registration from the Registrar of Copyrights for an artistic work mentioned in Section 13(1)(a) of the Copyright Act, the application must also include a certificate from the Registry under Section 3 of the act stating that the artistic work subject to protection is not deceptive.

In another case of Chancellor Masters of Oxford v. Narendra Publishing House[16], the Supreme Court of India held that mathematical problems are manifestations of natural laws. Such natural rules can only be conveyed in a few different ways because language is a finite medium. Therefore, extending copyright protection to questions would prevent people from accessing the concepts they contain. This would defeat one of the main goals of copyright legislation, namely the encouragement of creativity. The Court determined that copyright could not be applied to the questions for these reasons.


Understanding originality in copyright law is difficult since, on the one hand, it refers to the novelty of creating an artistic work from nothing, and on the other, it refers to the author's original ideas as well as his talent and labor. There is no single, unified definition of originality, as demonstrated by the various approaches discussed above that seek to define it. The standard for originality has evolved from "sweat of the brow" to "modicum of creativity," and various legal systems have distinct standards, criteria, and requirements for determining originality.


[1] Madhu Noonia, Doctrine of Originality in Copyright, Available Here

[2] A Brief History of Copyright, Available Here

[3] Evolution of copyright laws, Available Here

[4] V.K. Ahuja, Law relating to Intellectual Property Rights, Available Here

[5] Charul Tripathi, Historical Development of Law of Copyright, Available Here

[6] Shalu Gothi and Daisy Jain, Copyright Act, 1957, Available Here

[7] Meaning and Subject matter of Copyright Law, Available Here

[8] Originality under copyright law – what do the courts say, Available Here

[9] 'Originality' concept under India's copyright regime, Available Here

[10] [1900] AC 539

[11] 499 U.S. 340 (1991)

[12] 2002 SCC 34

[13] 101 U.S. 99 (1879)

[14] Appeal (civil) 6472 of 2004

[15] AIR 2004 Delhi 326, 112 (2004) DLT 549

[16] 2008 (38) PTC 385 (Del) at Para 23

Important Links

Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams

Law Aspirants: Ultimate Test Prep Destination

Snehil Sharma

Snehil Sharma

Snehil Sharma is an advocate with an LL.M specializing in Business Law. He is a legal research aficionado and is actively indulged in legal content creation. His forte is researching on contemporary legal issues.

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