Doctrine Of Sweat.docx

THE ICFAI UNIVERSITY DEHRADUN

TOPIC: DOCTRINE OF “SWEAT OF THE BROW”

SUBMITTED BY: XYZ

SUBMITTED TO: XCCC

ABBBB 3RD YEAR, 5TH SEM

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Table of Contents ACKNOWLEDGMENT............................................................................................................................... 3 INTRODUCTION ........................................................................................................................................ 3 SOCIAL BENEFITS, COST RE-COUPMENT, CREATIVE ORIGINALITY, AND SWEAT OF THE BROW .......................................................................................................................................................... 6 ORIGINALITY AND SWEAT OF BROW ................................................................................................. 8 POSITION OF SWEAT OF BROW IN INDIA ......................................................................................... 12 CONCLUSION ........................................................................................................................................... 14 TABLE OF CASES .................................................................................................................................... 15 BIBLIOGRAPHY ....................................................................................................................................... 16

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ACKNOWLEDGMENT I would like to extend my sincere thanks to Samridhi Singh, for having been my supervisor and having given her excellent guidance throughout this work and this work would not have been successfully completed her supervision. Date: 23rd November

INTRODUCTION “The Bread earned by the Sweat of the brow is their blessed bread, and it is far sweeter than the tasteless loaf of idleness earned through dishonesty” [3]

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Crowquill1

The main purpose of copyright law is to promote and protect creative works.2The progress of science and arts is promoted by protecting the work of author for limited period of time in their writings.3 The writing should be original to get a protection under the copyright Act.4 The agreement on TRIPs provides that the copyright protection shall extend to expressions and not to the ideas, procedures and methods of operations.5 Berne Convention, in context of collection of works, identifies the selection and arrangement as elements of “intellectual creations”, which in turn, more broadly characterizes ‘literary work and artistic works’ protected under that multinational organization. The Trade Related Aspects of Intellectual Property’ annexed to the World Trade Organization treaty and the 1996 World Intellectual Property Organization Copyright. Treaty also adopts the “intellectual creation” standard in connection with the compilation.6

The Copyright Clause authorizes Congress to secure to "authors" the exclusive right to their "writings" for a limited time. The Berne convention leaves on the member states to determine-who is author and what amounts to authorship. It provides very less guidance in this regard. The only specification for author provided in Berne convention is the person whose name appears on the work in the usual manner.In Burrow-Giles case , the Court derived the originality requirement from the Constitution's use of the word "authors," defining "author," in the constitutional sense, as "he to whom anything owes its origin; the person who is originator; maker." The Burrow-Giles Court also stressed the creative aspect of originality. The author of the work is provided with the exclusive rights in works and he only has rights regarding reproduction, adaptation, distribution, performance and display of the work.

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Pseudonym of Alfred H. As referred from http://www.clwindia.gov.in/01_RSCR.pdf, last visited on 6/09/08 U.S. Const. art. I, § 8, cl. 8. 3 The term of Copyright as per Copyright Act, 1957 provides protection for authors life time and 60 years. 4 Sec 13 of The Copyright Act, 1957 5 Article 9(2) of the TRIPS Act, 1994 6 Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 Colum. L. Rev. 338, 375 (1992) 2

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Thus originality is the basic requirement for the copyright, even in case of compilation also In order to have originality, there should be “modicum of creativity”. 7 The concept of originality discussed in this project, will reveal the basic requirements of originality.

In general rule, compilations of facts are copyrightable, but facts are not. In due course of time, there developed a doctrine of “Sweat of The Brow”. This doctrine made the requirement of the creativity, in works, irrelevant. It protected the labour and sweat of the compiler, without the use of his vision and aptitude. Merely mechanical and automatic task which is not having any creativity is also copyrightable under this doctrine. For example, a person collected various poems of a famous poet, whose poems were already in public domain. He published a book of these poems just by compiling them. He even did not use his own judgment and creativity in this compilation. In this case he cannot claim copyright as the work is not original. If the person had added his own views also in the book, regarding the poems, then copyright could have been given to him. But if doctrine of sweat of the brow has been applied in the abovementioned example, the case would have been different. The work .i.e. the book of compiled poems would have been subject to copyright protection. The labour spent in compiling the poems in the book, without any creativity, has been enough to get the protection of copyright, under the regime of the doctrine of sweat of the brow. This study deals with the doctrine of the Sweat of The Brow and how it led to a confusion in order to determine the boundaries of the concept of originality. A person other than the one, who compiled the creation, may originate another work in the same general form, provided he does so from his own resources and makes the work he so originates a work of his own, by his own labour and industry bestowed upon it. This doctrine was in application for a long time and it escorted various factual compilations, totally negating the essence of creativity in copyright law, and just awarding the labour done to compile a work. In 1991, the U.S.Court gave a remarkable judgment of Feist Publication v. Rural Publication8, which flatly rejected the sweat of the brow doctrine and held that expenditure of effort does not, in itself, merit protection. The Supreme Court promoted creative originality theory and tried to abolish this doctrine of sweat of the brow.

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Navin. J.desai vs. Eastern Book Company (2002) 25 PTC 641 499 U.S. 340, 342 (1991)

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This study deals with applicability of the doctrine and protection of factual compilation before 1991 in chapter I, then in chapter II, the Social benefit, cost recoupment and creative originality and Sweat of brow are relatively analyzed. Chapter III deals with the findings of Feist case. Then application of the Feist case is discussed in Chapter IV. Chapter V analyses the relationship between originality and sweat of the doctrine. And finally the last chapter elucidates the position and applicability of the doctrine of sweat of the brow in India.

SOCIAL BENEFITS, COST RE-COUPMENT, CREATIVE ORIGINALITY, AND SWEAT OF THE BROW  Social Benefits – one of the basis due to which the doctrine of the sweat of the brow can be promoted is that the policy of the doctrine that bestows and confines the copyright protection should encourage the socially beneficial work. As the main purpose of the act is to promote and protect the artistic and literary works in the public . This is contended that the factual compilations are beneficial for the society as it amplify the awareness and knowledge of the common man. The compiler work is for valuable with respect to the social benefit and hence it should be protected.  For applying this rationale, the court will have to determine the social value of individual works. The main problem is that the social worth may vary from case to case basis, from one locale to another.  Secondly, when the second person comes, who is alleged as the infringer of compilation, the court will have to assess the social worth of that person also, and this will depend on whether first –comer’s work is protected or not. The social benefit approach would also require courts to consider the potential social benefits of future compilations that a second-comer might or might not choose to create, depending on whether the first work was protected.9

Polivy Denise R.’s Feist applied: imagination protects, but perspiration persists—the bases of copyright protection for factual compilations, Fordham Intellectual Property, Media and Entertainment Law Journal Spring ,1998, 8 Fordham Intell. Prop. Media & Ent. L.J. 773) 9

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 Cost Recoupment – Factual compilations are good for public use. Copyright should encourage the production of original work. For the labour and skill, which the author deposits in making or compiling a work, he expects something in return also for that. The author will make any work only when he will have some hope of getting any benefit from it. And this cost recoupment, he will get only when his work is protected by copyright. If the compiled work will produced by the free market, then it will fall short of society’s need. Free riding of the compilation of the compilation, will interfere with the cost recoupment by the developer  But other then selling the compilation so as to attain cost recoupment, other methods are suggested to original compiler to recoup cost,10 such as recouping some costs from sponsoring government or non-profit organizations, and exploiting the natural monopoly that follows initial publication of the data and include charging parties for inclusion of their information in the compilation and discriminating in the prices charged to different customers. A factual analysis would require courts to separate cases of "legitimate" failure to recoup costs, i.e., useful compilations heavily used by free riders, from those where the failure to recoup costs was caused by mismanagement and poor marketing.   Creative Originality- This doctrine can be used instead of social benefits doctrine. The main requirement of this doctrine is originality. The compilation done should offer something new, .i.e. something original to the world. A “modicum of creativity” should be there. The main point is that the compiler should create the compilation himself, and not just rehash the pre- existing public domain information. The compiler is needed to use his knowledge in addition to the facts available so as to have protection of copyright. Facts are not copyrightable and the compiler should select and arrange the factual information in a unique way along with his subjective knowledge with it. The motive behind this is that the compiler should add to the knowledge of the world. They should increase the public domain knowledge. by limiting protection to compilations displaying a modicum of creativity, the doctrine promotes progress by allowing 10

Alfred C. Yen, The Legacy of Feist: Consequences of the Weak Connection Between Copyright and the Economics of Public Goods, 52 Ohio St. L.J. 1343, 1344 n.3 (1991).

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compilers to use freely any material that does not meet Feist's threshold originality requirement. Feist impels compilers to add value in the form of subjective information to their compilations. Under merger doctrine, choice of universe is unprotectable being an idea. So information easily available in universe is unprotectable. As this result to a situation that the public at large would be discouraged from making compilation of the universe. This doctrine allows the judges to assess compilations according to a set of objective characteristics, rather than determining the value of each case. The concept of the creative originality is criticized as it does not recognize the inherent subjective and creative judgment while collection of data for compilation.11 It is not necessary that the creativity which is put in the compiled data which is valuable by the compiler according to creative originality doctrine always make that ultimate compilation also valuable. Rewarding the creativity inherent in the collection process focuses not on the compilation produced but on the compiler's effort in producing it, as did the sweat of the brow doctrine .

ORIGINALITY AND SWEAT OF BROW The Sweat of brow doctrine, which undermines the fact/ expression dichotomy, emerged in U.K., U.S.A and Canada. It emerged as a basis for finding the requisite originality in works that are of a mundane, commercial and often essentially factual nature. This doctrine protects the substantial portion of factual compilation, and the labour used to compile it. Originality is not required. The rationale of the doctrine of sweat of the brow can be determined by considering what was held in University of London Press v. University Tutorial Press12, the word original does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are 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 in writing. The originality which is required relates to the expression of the thought.

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Leo J. Raskind, Assessing the Impact of Feist, 17 U. Dayton L. Rev. 331, 333 (1992), pg. no.336 [ 1916] 2 Ch 610

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But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work- that is it must originate from the author. It was held that “what is worth copying is prima facie worth protecting.” Due to this doctrine, work is defined in terms of commercial values.68

As discussed in earlier chapters, Fiest totally disregarded Sweat of brow doctrine as a basis for a finding of originality. With respect to compilations of facts, the Court emphasized the need to find originality in the selection and arrangement of the facts, and opined that a “creative spark” would be required to distinguish a routine selection and arrangement from one in which copyright resided.69 Original literary, dramatic, musical and artistic works accorded copyright by the Act are further defined to some extent by statutory provisions or case law. Behind this lies the root requirement that sufficient “skill, judgment and labour”, or “selection, judgement and experience”, or “labour, skill any capital”, be expended by the author in creating the work. The creative intellectual property must produce the right kind of work, but the input must satisfy a certain minimum standard of effort. Otherwise there is nothing that can be treated as a work; or the work will not be treated as original. The copyright protects the expression of idea and not the idea itself. Literary work is copyrightable, irrespective of the question whether the quality or style is high or not. Works representing the fruits of considerable creative or intellectual endeavor, copyright has been allowed in such compilations of information’s such as timetable index, trade catalogues, examination papers, street directories, football fixtures list, a racing information service and the listing of programmes to be broadcast. There should be sufficient ‘skill, judgement and labour” accordingly operates as a proviso de minimis. Originality is synonymous with authorship. The requisite level of originality may differ according to the nature of the work. The strictly limited level “original” achievement that is required in order to attract literary copyright can be explained in two ways-

1) it reduces to minimum element of subjective judgment in deciding what qualifies for protection. 2) It allows protection for any investment of labour and capital that in some way produces a literary result [9]

Author’s rights systems take as their starting point the intellectual act of formulating a “work” and therefore, tend to maintain in their law some initial criterion relating to creative expression. This differs in intent from the common law test that what is not copied is original. It is, moreover, an issue which does not merely divide “copyright” and the “author’s rights” systems, since the U.S. Supreme Court has been sufficiently moved by notions of “authorship” to hold that a “white Pages” telephone book cannot be copyrightable. Feist publication case did not establish a new originality paradigm as such but only ended a long division among federal circuits concerning the protection under copyright of factual compilations. A compilation containing the same facts or non- copyrightable elements is not infringed, unless it features the same selection and arrangements as the original compilation. The mere fact that a work is copyrightable does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright, so copyright protection may be to the extent the work of the author is original. The manner, in which the compiler has selected and arranged the facts, is only believable expression in this. The plaintiff must prove substantial similarity between the defendant’s compilation and the original elements of the of the plaintiff’s compilation, since the copyright in a factual compilation is thin.78 If the selection and arrangement are original, the elements of the work are eligible for copyright protection and the raw facts may be copied at will. The court will find infringement of compilation only when the compilations compared have a very similar literal ordering or format. No one can take advantage of the effort expended in compiling facts appearing in a copyrighted compilation by publishing any of those facts without discovering or collecting them anew., this the standard required by the doctrine of Sweat of the brow or industrious collection. An author may avail himself of the common sources of information on a subject but he is not entitled to save himself of pain and labour by adopting a predecessor’s work with colorable variations even though such predecessor’s work is based on materials which are common property. Along with skill, discretion, judgment and knowledge, labour is also a major requirement for copyright protection under this doctrine. 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, [10]

merely to take away the result of another mans labour or in other words, his intellectual property. Any skill, labour or judgement used merely in the process of copying an existing work cannot be sufficient to make a work original. The requirement of skill, labour and judgment is a test to be used to determine whether the thing concerned is a work rather than a test of originality and is more concerned with questions of adequacy and the de minimis principle. There are competing views on the meaning of original' in copyright law as some courts have held that a work which has originated from an author and is more then a mere copy of a work, is sufficient to give copyright. This approach is consistent with the sweat of the brow' or industriousness' standard of originality on the premise that an author deserves to have his or her efforts in producing a work rewarded. Whereas the other courts have held that a work must be creative to be original and thus protected by the copyright Act, which approach is consistent with a natural rights theory of property law; however, it is less absolute in that only those works that are the product of creativity will be rewarded with copyright protection and it was suggested in those decisions that the creativity approach to originality helps ensure that copyright protection is extended to the expression of ideas as opposed to the underlying ideas or facts. To be original under the Copyright Act the work must originate from an author, and should not be copied from another work, and must be the product of an author's exercise of skill and judgment. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. Creative works by definition are original and are protected by copyright, but creativity is not required in order to render a work original. The original work should be the product of an exercise of skill and judgment and it is a workable yet fair standard. The sweat of the brow approach to originality is too low a standard which shifts the balance of copyright protection coo far in favour of the owner's right, and fails to allow copyright to protect the public's interest in maximizing the production and dissemination of intellectual works. On the other hand, the creativity standard of originality is too high. By way of contrast, a standard requiring the exercise of skill and judgment in the production of a work avoids these difficulties and provides a workable and appropriate standard for copyright protection that is consistent with the policy of the objectives of the Copyright [11]

Act. Thus, in the case of CCB Canadian Ltd. v. Law Society of Upper Canada 13 the court is of the view that to claim copyright in a compilation, the author must produce a material with exercise of his skill and judgment which may not be creativity in the sense that it is not novel or non-obvious, but at the same time it is not the product of merely labour and capital.

POSITION OF SWEAT OF BROW IN INDIA Section 13 of Indian Copyright Act, 1957 provides, inter alia, that copyright shall subsist in every original literary, dramatic, musical and artistic works. Thus originality is the cardinal requirement for getting protection of copyright. But the term “original” is nowhere defined in the Act; hence it is uncertain what amounts to originality. According to section 14 of the Act, only author of the work, subject to sec.17 of the Act is entitled to have copyright protection and can enjoy the exclusive rights therein. So the person who devotes his labour, skill and judgment can have an monopoly right over the work. In respect of compilations, the Copyright Act, 1957 does not limit protection only to compilations which “by reason of the selection or arrangement of their contents constitute intellectual creations”. Nor does it mandate supplementary criteria to selection and arrangement expressly. India is a commonwealth country and therefore follows the “sweat of the brow” doctrine. It was held that a compilation of addresses developed by any one by devoting time, money, labour and skill though the source may be commonly situated amounts to a ‘literary work’ wherein the author has a copyright. In the case of Indian Express Newspaper (Bombay) Pvt Ltd v Jagmohan14, the Bombay High Court has emphatically stated that there is no copyright for happenings and events which could be news stories, and a reporter cannot claim any copyright over such events because he/she reported it first. The Court said that the ideas, information, natural phenomena, and events on which an author expends his/her skill, labour, capital, judgment and literary talents are common property and are not the subject of copyright. Hence, there is no copyright in news or information per se. However, copyright may be obtained for the

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2004 (1) SCR 339 (Canada) ( AIR 1985 Bom 229)

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form in which these are expressed because of the skill and labour that goes into the writing of stories or features and in the selection and arrangement of the material Again in the case of RG Anand v Delux Films and Others15, it was held that there can be no copyright in ideas, subject matter, themes, plots, or historical or legendary facts and where the same idea is developed by different people in different ways it is obvious that similarities are bound to occur since the source is common. In order to be actionable the copy must be substantial and material. In the case of Eastern Book Company v. D.B. Modak16, the court gave the judgment which was different from the leak which is followed by Indian judiciary. Supreme Court took a tentative step in altering the jurisprudential surrounding in Indian Copyright with regard to the concept of Sweat of the brow. The court leant towards the “modicum of creativity” arguments followed in America. The judgment given by court is mesmerizing as it showed the inclination on the part of our Judiciary to move away from the close association that Indian copyright law shares with its English counterpart. The basic fact situation was that SCC and SCC – Online were aggrieved by individuals who launched a software package entitled "The Laws" and "Jurix". Allegedly they infringed the copyright of the copy-edited judgments published by SCC .The said suits were filed, inter alia, on infringement of copyright and unfair competition. The issue was Whether the copy-edited judgments reported by SCC were entitled to copyright protection as derivative works and what standard of originality is required by derivative works to evoke that protection; The notion of “flavour of minimum requirement of creativity” was introduced in this case, being required with regard to derivative works. This was an attempt to reconcile the sweat of the brow doctrine with the notion of modicum of creativity. It was held that “The derivative work produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author.” Novelty or invention or innovative idea

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(AIR 1978 SC 1614) 2002 PTC 641

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is not the requirement for protection of copyright but it does require minimal degree of creativity.” The recent judgment dealing with this doctrine of sweat of the brow was the Dr. Reckeweg and Co. Gmbh. and Anr. Vs.Adven Biotech Pvt. Ltd17, the contention of the plaintif was rejected as their work was held to be mere compilation. And in this case Delhi High court completely rejected the phenomena of the doctrine of sweat of the brow.

These decisions are the authority on the proposition that the work that has been originated from an author and is more than a mere copy of the original work would be sufficient to generate copyright. This approach is more or less consistent with the "sweat of the brow" standards of originality. The creation of the work which has resulted from little bit of skill, labour and capital are sufficient for a copyright in derivative work of an author. An author deserves to have his or her efforts in producing a work, rewarded. The originality requirement in derivative work is that it should originate from the author by application of substantial degree of skill,- industry or experience. Precondition to copyright is that work must be produced independently and not copied from another person. Where a compilation is produced from the original work, the compilation is more than simply a rearranged copyright of original, which is often referred to as skill, judgment and or labour or Capital.. The courts have only to evaluate whether derivative work is not the end-product of skill, labour and capital which is trivial or negligible but substantial. The courts need not go into evaluation of literary merit of derivative work or creativity aspect of the same.

CONCLUSION The primary objective of copyright is not to reward the labour of authors but rather to protect expression while encouraging others to build freely upon the ideas and information conveyed in the expression. Copyright law is about expression, not about ideas. The amount of creativity needed to meet the originality requirement should not be extraordinary, but creativity should be prominent. According to Fiest, nothing substitutes for creativity. The author cannot win protection by showing that he invested considerable resources. But even 17

MANU/DE/0961/2008

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after coming of Feist, the degree of originality is not fixed and still the doctrine of the sweat of the brow is prevailing either directly or under the disguise of other name. Still, there are cases which protect the labour of the compiler who took pain in doing collection. In U.S. as the legislature is clear about the compilation definition, Feist can be easily applied in the cases arising there. But in other countries Like Canada, and India, the notion of Sweat of the Brow is still a matter of confusion. In India, the legislature does not outline the boundary of the originality. The need of creativity is there, but what is the amount of creativity required is not clear. Many of the cases have affirmed the doctrine of the sweat of the brow, with no regard to the importance of creativity. Although the court in some of the cases have rejected the sweat of brow doctrine lack of certainty with regard to the degree of originality required – the ambiguous nature of the terms “flavour” and “substantive variation” seem to leave the Courts with an exit option in terms of allowing interpretation which could tend towards either of the doctrines of originality. Even if a ‘sweat of the brow’ doctrine for copyright protection of databases were accepted across many jurisdictions, is this really what copyright law was designed to protect? This should be made clear in mind that purpose of copyright is protection of the creative work and not to entertain the person who just compile the already known fact. The legislature of the country should take an initiative, in this regard, to sketch the boundary by defining the term compilation, so that it can be useful for the court to determine what amount of originality is required in a work, to make it copyrightable.

TABLE OF CASES       

Feist Publication v. Rural Publication University of London Press v. University Tutorial Press CCB Canadian Ltd. v. Law Society of Upper Canada Indian Express Newspaper (Bombay) Pvt Ltd v Jagmohan RG Anand v Delux Films and Others Eastern Book Company v. D.B. Modak Dr. Reckeweg and Co. Gmbh. and Anr. Vs.Adven Biotech Pvt. Ltd [15]

BIBLIOGRAPHY Bibliography here entails a list in references to all the law books, dictionaries, commentaries, journals, articles, online data bases, websites, conventions, treaties, etc. which have been followed, relied upon, quoted and referred to in the project report.

Primary Sources: [16]

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Clark A.D. Wilson, The TRIPs Agreement: Is it beneficial to the Developing World, or simply a tool used to protect Pharmaceutical Profits for Developed World Manufacturers?, 10 Journal of Technology Law and Policy 243 (2005) Divya Murthy, The Future of Compulsory Licensing: Deciphering the Doha Declaration on the TRIPs Agreement and Public Health, 17 American University International Law Review 1299 (2002) Duncan Matthews, From the August 30, 2003 WTO Decision to the December 6, 2005 Agreement on an Amendment to TRIPs: Improving Access to Medicines in Developing Countries, Intellectual Property Quarterly 2006 (2) 91-130 Grace K. Avedissian, Global implications of a potential U.S. Policy shift toward Compulsory Licensing of Medical Inventions in a New Era of "Super-Terrorism", 18 American University International Law Review 237 (2002)

Secondry Sources:  Daniel Gervais, The Trips Agreement: Drafting History and Analysis, (London: Sweet & Maxwell, 1998)  Numo Piresde Carvalno, TRIPs Regime of Patent Rights, (Netherlands: Kluwer, 2nd edition, 2005)  Philip W. Grubb, Patent for Chemical Pharmaceuticals & Bio-technology, (London: Oxford, 2nd edition, 2003)  UNCTAD & ICTSD, Resource Book on TRIPS and Development, (May 2005) I hereby state that the information contained herein is updated, true and correct to the best of my knowledge.

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