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10. In the present case, the questions which require determination by the Court are : (1) What shall be the standard of originality in the copy-edited judgments of the Supreme Court which is a derivative work and what would be required in a derivative work to treat it the original work of an author and thereby giving a protected right under the Copyright Act, 1957 to the author of the derivative work ? and (2) Whether the entire version of the copy-edited text of the judgments published in the appellants law report SCC would be entitled for a copyright as an original literary work, the copy-edited judgments having been claimed as a result of inextricable and inseparable admixture of the copy-editing inputs and the raw text, taken together, as a result of insertion of all SCC copy-editing inputs into the raw text, or whether the appellants would be entitled to the copyright in some of the inputs which have been put in the raw text ?

14. In many cases, a work is derived from an existing work. Whether in such a derivative work, a new copyright work is created, will depend on various factors, and would one of them be only skill, capital and labour expended upon it to qualify for copyright protection in a derivative literary work created from the pre-existing material in the public domain, and the required exercise of independent skill, labour and capital in its creation by the author would qualify him for the copyright protection in the derivative work. Or would it be the creativity in a derivative work in which the final position will depend upon the amount and value of the corrections and improvements, the independent skill & labour, and the creativity in the end-product is such as to create a new copyright work to make the creator of the derivative work the author of it; and if not, there will be no new copyright work and then the original author will remain the author of the original work and the creator of the derivative work will have been the author of the alterations or the inputs put therein, for their nature will not have been such as to attract the protection under the law of copyright.

30. 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 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. Decisions propounded a theory that an author deserves to have his or her efforts in producing a work, rewarded. The work of an author need not be in an original form or novel form, but it should not be copied from anothers work, that is, it should originate from the author. 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 re-arranged copyright of original, which is often referred to as skill, judgment and or labour or capital. The copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his skill, labour and investment of capital, maybe it is derivative work. 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.

32. It is submitted by Ms. Pratibha M. Singh, learned counsel for the respondents in C.A. No. 6905/2004, that in the present case, the journals of the appellants, including SCC, are printed and published on the basis of pre- existing judgments. Journals are, therefore, a derivative work. There is a distinction between a `law report as understood in England and a `law journal as printed in India. The appellants journal `SCC is not a law report in the strict sense, inasmuch as the appellants journal reproduces the judgments of the court verbatim along with inputs. However, a law report known in the traditional English sense is when a law reporter present in the court would record in his own words and language the arguments of the counsel on both sides, give a summary of the facts and incorporate into the said report his transcript of the speech of the Judge. Thus, the appellants work could only be a law journal and not a law report. The judgments were specifically made a part of the exception to copyright infringement and thus find place in Section 52(1)(q) of the Act. The underlying purpose is that it is in public interest to place judgments in public domain. The work for which the copyright protection is claimed is a derivative work. For claiming protection of copyright in a derivative work, under the Indian law originality is a pre-condition and originality means only that the work was independently created by the author as opposed to copied from other works, and that it possesses at least some minimal degree of creativity. There is a distinction between creation and discovery. The first person to find a particular fact has not created the fact, he or she has merely discovered its existence. Reporting of the judgments of the Supreme Court with certain inputs could only be said to be a discovery of facts already in existence. Though for the purposes of creativity neither novelty nor invention is requisite for copyright protection, but at least some minimal creativity is a must. To create a copyright by alterations of the text, these must be extensive and substantial practically making a new version. The English decisions relied upon by the appellants would not apply to the facts of the present case as all the said authorities are under the old 1842 Act in U.K. wherein the word `original was conspicuously missing in the statute. It is further urged that the copy-editing inputs of the appellants are only discoveries/facts and there are limited ways/unique of expressing the various copy-editing inputs and thus no copyright can subsist in such limited/unique expressions. The facts which are discovered could be expressed in limited ways and as such ways adopted cannot give copyright protection to the inputs or the judgments as a whole. It is urged that recognizing the copyright in the copy-edited version of the law reports would amount to giving the appellants a monopoly in the judgments of the courts which is against the intendment of Section 52(1)(q)(iv) and would defeat the purpose of putting judgments in the public domain. It is submitted by the learned counsel for the respondents that for a derivative work, the originality test as applied in United States Supreme Court should be made applicable whereby the author of a derivative work would satisfy that the work has been produced from his 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 a purely mechanical exercise. The work should be independently created by the author as opposed to copied from the other works and that it possesses at least some minimal degree of creativity. The case law relied upon by the learned counsel for the respondents is considered hereinafter.