As you are aware that ‘Copyright‘ constitutes an essential element in the development of a country. The enrichment if the national cultural heritage depends directly on the level of protection afforded to literary, dramatic, musical and artistic works, cinematographic films and sound recordings. The more the protection provided encourages the authors and creators to produce more work of art, literary etc., and more development of cultural resources of the country and more and more development of country in all aspects.
Copyright is an incorporeal property in nature. The property in the work is justified by the fact that the right owner has created or made it. As he is the owner of the property, he can dispose of it by outright sale (assignment of his right) or by licensing. Since the subject matter of the property is incorporeal, it gives a dominium over the work, a right in the work erga omnes (means “towards all” or “towards everyone”). The property is an Intellectual Property in the sense that it originates in the mind of a person before it is reduced to material form.
Please Note That: that ideas and thoughts are not protected which merely exist in a man’s brain, as ideas and thoughts are not works under a copyright law. But once reduced to writing or other material form, the result becomes a work worthy of protection.
A Copyright is a bundle of exclusive rights. It is called a negative right which means that the right owner can prevent all others form copying his work, or doing any other acts which according to Copyright Law can only be done by the owner. This is also referred as monopoly of the owner in his work and to recognize that the produce of person ‘s skill and labor is his property.
The exclusive rights in copyrighted work are limited in time. Unlike physical property, which lasts as long as the object in which it is vested, copyright subsists for a limited period of time. After expiration of this period, it becomes public property and any person from public can use without permission of the owner.
In India copyright subsists in
i) Original literary, dramatic, musical and artistic works;
ii) Cinematograph films; and
iii) Sound recordings.
Literally works includes computer programmers including databases. The subject matter of copyright includes e.g., poems, novels, music, school textbooks, question papers set for examination, law reports, time tables, catalogues, road book, guide book, dramatic works, choreographic works, acting forms and much more.
The concept of “Copyright” has assumed significance in the context of contemporary scientific, economic, social, political and legal environment not only in India but all over the world. The development of information technology such as internet, computers, sound recordings, phonographs, cable, television etc., enforced government of countries to change their Copyright Laws to stand with developed technology.
The Copyright Law not only protects the rights of the copyright owner but also deals with the subject of the public interest and tries to strike a balance between the two in this digital environment.
As discussed above Copyright subsists in an original literary work. It is not necessary that the work should be the expression of the original or inventive thought, as the Copyright Act is not concerned with the originality of ideas, but with the expression of thought, and in the case of literary work, with the expression of thought in print or writing. Originality for the purpose of copyright law relates to the expression of thought. Such expression need not to be copied from work of another person but should be originates from the author.
The expression “Literary work” means not only such work which deals with any particular aspect of literature in prose and poetry but also indicates work which is literature i.e., anything in writing which could be said to come within the ambit of literary work.
The work should be original, it means it should not be copied from other work. The word “Original” does not mean that the work must be the expression of original or inventive thought. The Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of literary work, with the expression of though in print or writing.
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As per copyright law, an idea is not copyrightable instead it is the expression of idea on which a copyright can be claimed. As per section 13 of the copyright Act, 1957, a copyright subsists in original, literary, dramatic, musical, artistic, cinematography and sound recording subject to the exceptions provided in Sub-sections (2) and (3) of Section 13. For copyright protection, all literary works have to be original as per Section 13 of the Act. Broadly speaking, there would be two classes of literary works: (a) Primary or prior works: These are the literary works not based on existing subject-matter and, therefore, would be called primary or prior works; and (b) Secondary or derivative works: These are literary works based on existing subject-matter. Since such works are based on existing subject-matter, they are called derivative work or secondary work. |
DOCTRINE OF SWEAT OF BROW;
The sweat of Brow is a doctrine that is observed in India as well as other countries to protect the rightful owners of Intellectual property by way of protecting the hard work of the original owner.
“Sweat Of the Brow” is one of the well-known doctrines in Copyright Law. The doctrine protects factual compilations. The origin of this doctrine cannot be acknowledged, but through study this is clear that this doctrine is the result of misinterpretation of earlier statutes. The rationale behind this doctrine was to award the person who expended his sweat and effort in compiling the facts. No one can misuse and take a gain out of it. The principle of Sweat of the brow doctrine can also be stated in the form that one is not at liberty to avail himself of the labor which the other has been at for the purposes of producing his work that is, in fact, merely to take away the result of another man’s labour or in other words, his intellectual property.
Intellectual Property Rights (IPR) law has laid down certain conditions which are necessary while protecting the Copyright of original owners by providing them with essential prerequisites.
Some of these are mentioned down below:
1. It should be Novel and distinct.
2. It should be original and not merely copied.
3. It should not have been published before or in other words be available in the public domain.
India has followed the Doctrine of Sweat of Brow for a long time. But in courts, the law still protects useful addition and any kind of modification by any party.
The term original is not defined anywhere in the Act hence the interpretation for the same would be based on the judicial pronouncement of the term by the Courts. However, the idea of originality of the work has been changing with the passage of time.
Initially it is considered by courts on various occasions that a derivative work need not be original instead it should be expressed in a completely new way in order to be copyrighted.
A person can claim a copyright over a work which cannot be novel in nature but has been expressed differently. The protection for this kind of work is provided according to the doctrine of ‘Sweat of the Brow’ under which an author gains rights through simple diligence during the creation of a work, such as a database, or a directory. Substantial creativity or “originality” is not required.
The Delhi High Court judgment in the case of Burlington Home Shopping v. Rajnish Chibber, where it was held that a compilation may be considered a copyrightable work by virtue of the fact that there was devotion of time, labour and skill in creating the said compilation.
This interpretation of originality was based upon the decision of the Privy Council in the case Macmillan Company v. J.K. Cooper, wherein it was laid down that copyright over a work arises and subsists in that work due to the skill and labour spent on that work, rather than due to inventive thoughts.
LET’S CONSIDER SOME JUDICIAL DECISIONS;
1 Feist Publications Inc. Vs. Rural Telephone Service Co. Inc [499 US 340;113 Led 2d358]
It was held that sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. Original means only that the work was independently created by the author (as opposed copied from the other works), and that it possesses at least some minimal degree of creativity. Originality does not signify novelty, a work may be original even though it closely resembles other works so long as similarity is fortuitous, not result of copying. The court further held that no one claim originality as to the facts. This is because facts do not owe their origin to an act of authorship. The Distinction is one between the creation and discovery is that first person to find and report a particular fact has not created the fact, he/she may merely discover the existence of facts.
The court further held that Factual Compilation, on the other hand may posses’ requisite originality. The compilation Autor typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices of selection and arrangement, so long as they are made independently by the complier and entail a minimum degree of creativity are sufficiently original. Thus, if the compilation author clothes facts with an original collocation of words, he or she may able to claim a copyright in the written expression.
2. Eastern Book Company Vs. D.B. Modak (2008) 1 SCC 1- the apex court held that only complier’s selection and arrangement may be protected. The raw facts may be copied at will. In this case court rejected the “Doctrine of Sweat of brow” as this doctrine had numerous flaws, the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement -the complier’s original contributions -to the facts themselves. A subsequent complier was not entitled to take one word of information previously published, but rather had to independently work out the matter for himself, so as to arrive at the same result from the same common source of information. The “Sweat of brow” courts thereby eschewed the most fundamental axiom of copyright law that no one may copyright facts or ideas. The “Sweat of brow” doctrine flouted basic copyright principles and it creates a monopoly in public domain material without the necessary justification of protecting and encouraging the creation of writing by authors.
Originality requires only that the author makes the selection or arrangement independently and that it displayed some material with minimal level of creativity. While a copy of something in public domain will not, if it be merely a copy, support a copyright, a distinguishable variation will. To support a copyright there must be at least some substantial variation, not merely a trivial variation such as might occur in the translation to a different medium.
The Doctrine of “Sweat of brow”-, rewarded compilers for their efforts in collecting facts with de facto copyright to those facts and this doctrine would prevent, preclude, the author absolutely from saving time and effort by referring to and relying upon prior published materials. It extended copyright protection in compilation beyond selection and arrangement -the compiler’s original contribution- to the facts themselves drawn on “Sweat of brow”. The court discarded “Sweat of brow” notion of copyright law.
3. Emergent Genetics India Pvt. Ltd. Vs. Shailendra Shivam & Others 2011(47) PTC 494(DEL) – the court stated that our law mandated that not every effort or industry, or expending of skill, resulted in copyrightable work, but only those which created works that were somewhat different in character, involved some intellectual effort and involved a minimum degree of creativity. The court further stated that mere labour (sweat of brow) or investment of manpower and resources was not substitute for originality. Sequences obtained from nature (e.g., the sequence for a gene) could not per se original. The microbiologist or scientist involved in gene sequencing “discovers” facts. There was no independent creation of work a work essential for matching the originality requirements. Such a scientist merely copies from nature genetics sequence that contained codes for protein. Therefore, there was no minimum creativity. So long as a researcher constructed a DNA sequence based on a sequence discovered in nature, whether was not independent creation, no minimum creativity and thus no originality.
CONCLUSION: The rationale behind this doctrine of “Sweat of brow” was to award the person who expended his sweat and effort in compiling the facts. No one can misuse and take a gain out of it. The principle of Sweat of the brow doctrine can also be stated in the form that one is not at liberty to avail himself of the labour which the other has been at for the purposes of producing his work that is, in fact, merely to take away the result of another man’s labour or in other words, his intellectual property. We know that Copyright Act protects original and creative works. And thus, this doctrine is in conflict with the core principle of the Copyright Act.
It has led to confusion in order to determine the boundaries of the concept of originality. With the ruling of the Feist Case (1991), this doctrine was totally negated. U.S. Copyright Act allows for the protection of “compilations,” only when there is a “creative” or “original” act involved in such a compilation. The application of Feist case was made in case of directories, catalogues, charts, forms and judicial reports etc. But in India, the lacuna is originality is not defined in the Act. India follows Sweat of the Brow doctrine. In the cases like Eastern Book Company v. D.B. Modak (2002), Indian judiciary showed a shift from the sweat of the brow doctrine. But still in case of database protection, this doctrine is practiced by the judiciary. The doctrine of sweat of the brow should be absolutely made void under copyright law, and Copyright Act should protect creativity and originality rather than labor and sweat. Clear and unambiguous clauses shall be added in the Act to describe ‘originality’ and ‘creativity’.
Footnotes:
1. https://www.researchgate.net/publication/228206893_Doctrine_of_Sweat_of_the_Brow
2. https://www.mondaq.com/india/copyright/272382/sweat-of-the-brow-an-approach-in-contrast-to-minimum-creativity
3. https://blog.ipleaders.in/the-sweat-of-brow-doctrine-contract-for-hire-and-contract-of-hire/
DISCLAIMER: the article produced above is only for knowledge and information of readers. The views expressed here are personal views of the author and same should not be considered as professional advice author. In case of necessity do consult with professional for more clarity and understanding on subject matter.
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