Analysis of Doctrine of Sweat and Brow and Doctrine of Independent Creation

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Copyright is defined as a bundle of exclusive rights granted to the owner, devoid of others to do or authorize others to do some acts in respect of literary, dramatic, musical, artistic works, including cinematograph film and sound recordings. Originality is the core requirement of copyright protection. A work which is original in terms of its creation is protected under copyright law.

There are few doctrines which are operational in the spear of copyright law to test out the originality of the creative works and authorship like that of doctrine of sweat of the brow and doctrine of independent creation. These doctrines have been adopted by courts of different regions at different points of times in different factual circumstances. But these doctrines have essentially influenced our approach towards the concept of originality. Let us examine these doctrines and their influence on the law of copyright in general and on the concept of originality in particular.

Doctrine of Sweat and Brow

This is one of the famous doctrines used for accessing the originality of a work. One of the reasons that this is encouraged for assessing originality is the goal of this doctrine that bestows and restricts copyright protection and seeks to promote socially beneficial work. According to the believers of this doctrine the goal of copyright law is to safeguard the author’s rights and allow him to enjoy the rewards of his labour and sweat without relying on his vision and aptitude.

Under this concept, a purely mechanical and automated task that lacks creativity is also copyrightable only if the author has put his labour in it. The “sweat of the brow” theory has long been used in the Commonwealth to assess authorship originality for the purposes of copyright law.

This doctrine has been in effect in England for more than two centuries, and it does not appear to be changing anytime soon. One of the oldest rulings on this theory and its use happened in the year of 1776 in the case of Taylor v. Bayne where the issue of piracy of the plaintiff’s road book arose. This claim was upheld by the court and a preliminary injunction was issued. In Sayre v Moor, the judge ruled that “We must care to take guard against two extremes equally prejudicial; the one that men of ability who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour, and the other, that the world may not be deprived of any improvements, nor the progress of the arts be retarded.”

The issue before this court, and copyright law in general, was to strike a fair and acceptable balance that accomplishes both objectives. In the case of Walter v Lane the House of Lords awarded copyright protection to notes of speech of a reporter by treating them as originals because the note-taking procedure required a “industrious collecting” effort. So the major issue that arose was whether a speech report could be deemed an original work and so be protected by copyright.

Copyright law says that a work must be original; this means that the author must have exercised the requisite labour, skill, or judgment in producing the work. The words work, capital, time, effort, industry, knowledge, taste, ingenuity, experience, or investment are sometimes used disjunctively by the courts, referring to labour, skill, or judgement; on other occasions, the words work, capital, effort, industry, knowledge, taste, ingenuity, experience, or investment are also used. This puts the law in limbo, especially when it comes to determining whether works that are solely the result of labour are original. The courts have recognised that a work’s originality might emerge in the processes leading up to its creation. That is, the labour that gives a product its uniqueness may be found in the subject matter choices.

Moreover, whether or not a work is unique is usually influenced by the cultural, social, and political environment in which the decision is made. One of the main reasons for this is the fact that originality is determined by how the courts see the labour and the final output. One of the ramifications of this is that what is considered original may evolve over time. As a result, the originality bar has been set extremely low. The Court said in Macmillan and Co v K and J Cooper that it is the output of one man’s labour, skill, and capital that cannot be taken by another, not the elements, the raw material, on which the first man’s labour, skill, and capital have been invested.

The reasoning behind the sweat of the brow doctrine may be deduced from the decision in University of London Press v University Tutorial Press, which ruled that the term “original” does not imply that the work must be the manifestation of unique or inventive ideas. The work must originate from the author and cannot be reproduced, according to the originality test. The needed uniqueness pertains to the articulation of thought. The legislation specifies that the originality necessary is not that of revolutionary new ideas, but rather the manner in which the notion is presented. The court ruled that “what is worth copying is prima facie worth protecting.” Work is defined in terms of commercial values as a result of this strategy. This method is in line with the sweat of the brow or industriousness’ criterion of originality, which assumes that an author ought to be compensated for his or her efforts in creating a work.


However, according to the US Supreme Court originality is a constitutional condition for copyright application, although it was first established expressly by legislation with the adoption of the 1976 Copyright Act. The criterion for originality is based on the term “Author,” which the Court defined as “to whom anything owes its origin,” “maker” or “one who completes a work of science or literature.” Therefore someone who has slavishly or mechanically reproduced or copied from others cannot call themselves an author according to them.

The sweat of the brow theory was supported by earlier US legislation, but the current Copyright Act of 1976 mandates that a work be original, which is one of the more elusive conditions of copyright protection. The need for originality is included in section 102(a), which states that copyright protection is limited to “original works of authorship.” This explicit statutory requirement of originality is unique to the said 1976 Act.

Doctrine of Independent Creation

Many courts, including those in the United States, France, and Germany, have endorsed the theory of independent creation in determining the originality of creative works. Beginning with the first Copyright Act in the United States, originality was associated with independent production. Works originating from the author’s own labour and talent were usually granted protection by the courts.

The United States Supreme Court justified this view of independent production by inferring “originality” from the word “writers” in the United States Constitution’s Copyright Clause. An “author,” according to the Court, was a creator or the person who gave origin to a work. The only requirement for a work’s originality was that it be the result of the author’s own labour. As a result, early case law in the United States, based on the 1790 Act, emphasised the importance of a protected work being independently created and arising from the author’s labour investment.

Further, in the case of Jeweler’s Circular Pub. Co v Keystone Pub. Co, which is widely regarded as the standard explanation of a compiler’s “industrious collection” copyright protection, the court affirmed a copyright infringement order against a defendant who was found to have duplicated large sections of the plaintiff’s trade directory for use in a rival directory, repeating its view that the work should have been original and developed independently.

Courts and commentators in the mid-to-late nineteenth century shifted their standards of originality and proposed a new justification for copyright protection. The additional idea of creativity was incorporated into the originality requirement by these authorities. Unlike the independent labour requirement, this new test of a work’s originality required the author to inject his or her personality into the subject matter before copyright protection could be granted. As a result, originality evolved to signify that a work had to be both independently generated and contain some modicum of creativity.

The US Supreme Court interpreted the phrase “writings” in the Copyright Clause of the US Constitution to include this creative component of originality. In the year 1982 through the case of Doxv Jones, v Board of Trade of the City of Chicago, the Southern District of New York moved away from using copyright to just protect the compiler’s effort. Due to the “great degree of selectivity and subjective judgement” demonstrated in Dow Jones’ market indexes, the court ruled that they were copyrightable. This subjective judgement and selectivity criteria, rather than “sweat of the brow,” was employed in Eckes v Card Price Updates to determine whether the plaintiff’s listing of baseball card prices warranted copyright protection. According to the court the plaintiff clearly “exercised selection, creativity, and judgement” by picking 5,000 “premium” cards from a collection of around 18,000 cards, according to the court. The court cited the Second Circuit’s evolving case law for rejecting the protection of the sweat of the researcher’s brow, in an attempt to empower a rationale of originality in selection, rather than one of industrious collection.

Furthermore, as discussed earlier the United States Supreme Court made explicit what must have been inferred from previous jurisprudence i.e. in addition to the condition of non-copying, a work must demonstrate some modicum of creativity if it has to be eligible for copyright protection. This condition was defined and applied through the landmark judgement of Feist Publications Inc v. Rural Telephone Service Co. in 1991.

The main issue in this case was whether a telephone company had a legitimate copyright in a white-page directory that showed names in alphabetical order, along with phone numbers and towns. The Court decided that, notwithstanding the plaintiff’s useful efforts and the fact that it did not duplicate its directory from others, the final result is still a generic white pages directory devoid of any innovation or creativity. Hence a copyright cannot be claimed on it.

Position in India

In India, the journey of these two doctrines is similar to what it was in the United States. For a long time, India was a firm believer in the ‘sweat of the brow’ doctrine. Following the strategy of English courts, the Supreme Court of India held that copyright law does not preclude a person from taking what is beneficial from an original work and improving it with additions. The Court has ruled that neither creative ideas nor original study are required for copyright claims, and that even collections such as dictionaries, gazettes, maps, arithmetic, and encyclopedias can be granted copyright.


In case of Burlington Home v Rajnish Chibber which was identical to those in Feist’s case, the court used the said doctrine and determined that a compilation is very well copyrightable. Although the criteria of ‘originality’ in India is not as low as it is in England. In its decision on the copyright of a news article, the Bombay High Court held that there is no copyright for occurrences and events that may be news articles, and that a reporter cannot claim a copyright over such events just because of the fact that he or she reported it first. Ideas, information, natural occurrences, and events on which an author spends his or her skill, labour, capital, judgement, and literary abilities are not protected by copyright since they are said to be a common property.

Therefore there is no copyright for news or information in general. However, because of the skill and labour that is required for writing of tales or features, as well as the selection and organization of the material, copyright may be secured for the form in which they are expressed.

The most significant Indian case on this topic is Eastern Book Company v. D.B. Modak, where the ‘Sweat of the Brow’ doctrine was rejected by the Supreme Court in favor of a shift towards ‘Modicum of creativity’approach, as it was done in the United States. The case was related to copyright of judgements. The facts of the case are that SCC, the Supreme Court Case reporter, was harmed by third parties infringing on their copyright and launching software containing SCC’s edited judgments, as well as other additions made by SCC’s editors such as cross references, head notes, short notes containing lead words, and long notes containing a brief description of the facts and relevant extract from the judgments of the court and standardisation and formatting of text, etc.

In this situation, the concept of a “minimum requirement of creativity” was introduced and it was held by the court that the creativity criteria used to establish copyright is not that anything must be original or non-obvious, but that the work must have some level of creativity in order to claim copyright. The Court ruled that the inputs provided by the editors of SCC can be accorded copyright protection since such responsibilities need the application of legal knowledge, skill, and judgement by the editor. Hence this judgement production indeed has a flavour of minimum amount of creativity and is thus protected by copyright.

In the light of the same the Court awarded copyright protection to the editors’ modifications and contributions to SCC but at the same time also decided that the Court’s orders and decisions are subject to public domain that anybody has the freedom to use and publish and hence they can’t be copyrighted. A similar stance was taken by Indian Courts in subsequent decisions, rejecting the claim that simple compilations should be protected by copyright.

Copyright is granted to works that have been created by the author and are not just copies of the original work. This does not raise the anticipated degree of originality, but rather strikes a balance between guaranteeing a compensation for an author’s efforts while still maintaining a fair standard in the items protected by law.


From all these discussions about the two doctrines we can make out that the fundamental goal of copyright is not to reward the labour of authors but instead to safeguard expression while allowing others to freely build upon the ideas and information contained in that expression.

However, we also have to keep in our mind that the standard of originality cannot be set too high because then a vast majority of works would be excluded from copyright protection and at the same time we also have to see that it is not set too low because the degree of protection conferred by law would deteriorate to the point where any derivative work with only minor differences from the original work would be protected.

This balance is critical, and it is accomplished to some extent by US law, which follows the ‘Modicum of Creativity’ standard, which has a somewhat greater expectation of originality from writers than UK jurisprudence, which follows the ‘Sweat of the Brow’ concept.

In India, the jurisprudence on copyright’s “Originality” is progressing in the correct path. We have deviated from UK jurisprudence since the D.B. Modak Case and are inventing our own checks and balances to ensure that literature and other works with a degree of originality are properly brought under copyright protection while denying such protection to mere compilations with no degree of creativity.

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