Editing Originality (section)

== Originality under Indian copyright law ==
[https://indiankanoon.org/doc/4010217/ Section 13(1)(a) of the Indian Copyright Act, 1957] mentions 'originality' as a requirement for copyright protection to literary, dramatic, musical and artistic works. Courts have interpreted this requirement of 'originality' in different ways. This has given rise to various doctrines/tests that can be helpful in determining whether a work meets the threshold of originality. The most prominent case with respect to 'originality' under the Indian Copyright Law is the ''[https://indiankanoon.org/doc/1062099/ Eastern Book Company v DCB Modak]''.<ref>Appeal (civil)  6472 of 2004</ref> This judgment gave rise to two doctrines i.e. ''modicum of creativity'' and the ''skill and judgment test''. This remains the accepted and current position of law in India as of now. However, prior to this, the Indian Courts used to follow the [[Sweat of the brow|Sweat of the Brow]] approach.

=== "Sweat of the brow" doctrine ===
{{Main|Sweat of the brow}}
This theory bases the grant of copyright protection on the effort and labour that an author puts into their work as opposed to the creativity involved. [[Labor theory of property|Locke's theory of labour as property]] has often been extended to give jurisprudential basis to this theory of copyright law. In the case of ''[https://indiankanoon.org/doc/1836871/ V. Govindan v E.M. Gopalakrishna Kone],''<ref>AIR 1955 Mad 391</ref> it was held that compilations of information would meet the threshold of 'originality' under the Indian Copyright Act since it involves some level of 'skill, labour and brain'.<ref>¶8, V. Govindan vs E.M. Gopalakrishna Kone And Anr. (AIR 1955 Mad 391)</ref> A similar line of reasoning was adopted in the case of ''[https://indiankanoon.org/doc/130087/ Burlington Home Shipping Pvt Ltd v Rajnish Chibber]''<ref>1995 IVAD Delhi 732</ref> where a database was held to be original enough to be protected by copyright under Indian law. However, like in other jurisdictions, this theory was discarded by the Indian Courts also and the focus was shifted to the creativity involved in any work.

=== EBC Modak case (modicum of creativity and skill and judgment test) ===
The EBC Modak case is the Indian counterpart of the [[Feist Publications, Inc., v. Rural Telephone Service Co.|Feist Publications case]] in terms of the test it laid down. It concerned the copyrightability of Supreme Court judgments that were copy-edited and published by Eastern Book Company. These judgments were published along with 'headnotes' that were written by the Company itself. While explicitly discarding the Sweat of the Brow theory, the Court held that simply copy editing would not meet the threshold of originality under copyright law since it would only demonstrate an "''amount of skill, labour and capital put in the inputs of the copy-edited judgments and the original or innovative thoughts for the creativity would be completely excluded.''".<ref name=":0">¶37, ''Eastern Book Company v DB Modak''</ref> Thus, it introduced the requirement of 'creativity' under originality. With respect to the level of creativity involved, the court adopted the 'minimal degree of creativity' approach. Following this standard, the headnotes that did not copy from the judgment verbatim were held to be copyrightable.

Finally, the Court also gave way to the 'Skill and Judgment Test' which is more or less a compromise between the sweat of the brow theory and the modicum of creativity test. While relying on the [[CCH Canadian Ltd v Law Society of Upper Canada|CCH Canadian Case]],<ref>[2004] 1 SCR 339</ref> the Court essentially held that a work would meet the originality standard as long as there is labour or effort involved but not ''only'' labour.<ref name=":0" /> It must involve some level of skill and judgment as well. However, this approach mirrors the Sweat of the Brow theory more closely and is therefore a difficult theory to defend. Further, the Court held the division of a judgment into paragraphs and numbering them was enough to meet this standard of 'Skill and Judgment'. Whether this is the correct interpretation of the test as given in the CCH Canadian Case<ref>¶16, CCH Canadian ''Ltd v Law Society of Upper Canada'', [2004] 1 SCR 339</ref> remains debatable.