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  • Writer's pictureOishika Banerji

The doctrine of sweat of brow to the flavor of creativity: who yields better protection

The essence of copyright law lies with originality. With the growing dynamics in the world, the determination of originality of a particular creation has gone through a sea of changes starting with the doctrine of sweat of brow to that of the flavor of creativity. While the former places skill, capital, and labor as the criteria of adjudicating copyright, the latter ensures a minimal degree of creativity in the concerned work as a requirement to claim copyright protection.

As we delve deep into the doctrine of sweat of brow to figure out its roots, what can be discovered is that the doctrine comes from the United Kingdom in the year 1990 by means of the notable case, Walter v. Lane. Applying the ingredients of the doctrine namely labor, skill, and capital, the court had ruled a verbatim reproduction in a newspaper report will hold copyright protection. Applying the same doctrine, a year later the Chancery Division of England in the landmark case of University of London Press v. University Tutorial Press where the issue revolved around a mathematics question paper as to whether it amounts to original literary work or not, drew down two notable points;

  • The requirement of originality does not seek the expression to be in a novel form, instead what it called for is an original product of the author's creation.

  • The skill, labor, and the author's judgment acquire a greater place than creative input.

The metamorphosis

It was in 1991 when the Supreme Court of the United States rejected the doctrine with a promising judgment in the case of Feist Publication v. Rural Telephone Service. Rural Telephone Service claimed to have invested a considerable amount of time and energy in collecting data for its telephone listings which Feist had copied on the refusal of granting license by the former. Overruling the doctrine of sweat of the brow, the court ruled out that time and money spent on data collection is immaterial to receive copyright protection when work is not a consequence of creative expression.

While I have already mentioned some internationally acclaimed cases, a look into our domestic scenario is equally necessary. When we talk about the test of originality, the case of Eastern Book Company & Ors. v. D.B. Modak & Anr cannot simply be left ignored. While the Apex Court of India enforced the principle of the minimum degree of creativity, the English test of Sweat of the Brow was getting dimmer. Creativity took over the three major elements of labor, skill, and capital. This principle is flexible to fit in various dynamics, for it nowhere mandates novel or non-obvious expression of creativity. In order to locate creativity in a piece of work and determine infringement, the Supreme Court of India placed seven guidelines that were the consequence of the judgment delivered in the case of R.G. Anand v. Delux Film. The seven guidelines have been briefly placed below;

  • Copyright does not subsist in ideas.

  • Similarities in two distinct sets of work with the same roots can be differentiated by the court of law applying fundamental and substantial aspects of similarities present in the work.

  • Determination of copyright violation exists majorly in the hands of the readers and spectators of the work.

  • Perception about a specific theme in a distinct way in comparison to what is existing will not amount to infringement of copyright.

  • Broad similarities in the work will not be a ground for copyright violation.

  • The need for clear and convincing evidence is a must in proving copyright.

  • For cinematographic works, it is the viewers who are left to determine whether the projection reflects originality or copying. If the latter takes place, copyright violation has also taken place.

While these seven guidelines provide a structural framework towards determining original work, the transition from highlighting labor, skill, and capital to that of minimal creativity has served the copyright regime with immense nutrition. More than comparing between the two principles of determination, it is fundamentally important to locate the need to replace one with the other. The precedent judgments have served as an example to mobile our thoughts regarding copyright protection and originality towards a better direction. These being some of the landmark judgments which every internet site and intellectual property sources and books tends to cover, this article incorporates the same with an aim to put forth the differences between the two noteworthy principles of determination. If we sit to figure out the loopholes between the two, the discussion might not end with these limited case laws. It will be therefore much more intelligent of us to look into the purpose with which these two principles were brought and later replaced one with the other in few countries across the globe.


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