Indian Kanoon - Search engine for Indian Law

―Our Supreme Court has also signified a shift; in Eastern Book Company v. D.B. Modak 2008 (1) SCC 1..... it rejected the sweat of the brow doctrine (which conferred copyright on works merely because time, energy, skill and labour was expended, that is, originality of skill and labour), and held that work must be original in the sense that by virtue of selection, co-ordination or arrangement of pre- existing data contained in the work, a work somewhat different in character is produced by the author....In education, the dictates of the ―learning content‖ are such that each level demands a ―curve‖. These ―learning content‖ and ―learning curve‖ elements are inherent n the syllabi evolved by examination bodies such as J & K Board or the CBSE. The plaintiff therefore, had to show how it evolved an arrangement so unique that the scheme is entitled to copyright protection, independent of the dictates of the Board. The involvement of the Board, in the creation of the syllabus, negates such originality. This is not to suggest that there can be no creativity such schematic arrangement; the court merely infers that prima facie there is no material in support of it; the plaintiffs have made no attempt to show this creativity, apart from placing the textbooks on the record. For those reasons, this Court prima facie is of the opinion that the plaintiffs' claim of copyright in questions, answers, and their requiring or arrangement, is insubstantial.‖ The same observation has been rendered by this Court in the case of Mattel Inc. & Ors. Vs. Mr. Jayant Agarwalla & Ors. 2008 (38) PTC 416 (Del). It was also submitted by the learned counsel for the respondents that in the present case the learned Single Judge was seized of appellants claims of copyright protection over grammatical questions and answers and the same was answered in the negative against the appellants in view of the law of the land stated in all the abovementioned cases. The learned Single Judge observed that the grammatical use of tenses, words, etc., do not constitute original literary work. Admittedly, the subject work of the appellant, i.e., ―Advanced English Grammar by Martin Hewings‖ was composed of exercises based on day-to-day use of simple English Language and therefore the learned Single Judge correctly observed that no originality was displayed in the same. It is submitted that in view of settled law on the subject, the contention of the appellants of mere schematic arrangement and selection of exercises leading to copyright protection does not measure up to the test of originality, post the Eastern Book Company (supra) case and the other cases cited above. Even otherwise, the creative expression, if any, is minimal and does not warrant copyright protection. The case of University of London Press Vs. University Tutorial Press Ltd. (1916) 2 SC 601 repeatedly cited by the appellant in the appeal holds no good law. The law on principle of originality has undergone a sea change which is reflected by the decisions cited above.

―13. The exercises and answers thereto, which have been copied are to teach grammatical use of words, tense etc. Sentences, sometimes with blanks have been framed for the said purposes. The same, in my opinion also do not constitute original literary, dramatic or artistic works. No originality or invention is displayed in composing the said exercises based on day to day use of simple English language and meant for learning thereof. The plaintiffs' cannot claim any monopoly in the same. The Apex court in Eastern Book Company (supra) (though confining to the decision to judgment of courts only) has held that collection of material and addition of inputs in the raw text does not give work a flavor of minimal requirement of creativity, as skill and judgment required to produce the work are trivial. To establish copyright, the creativity standard applied is not that something must be novel or non obvious, but some amount of creativity in the work to claim copyright is required. In that case selection and arrangement was viewed as typical and at best result of labour, skill and investment of capital, lacking even minimal creativity, which did not as a whole display sufficient originality so as to amount to an original work of the author. It was further held, to claim copyright there must be some substantive variation and not just a trivial variation, not the variation of the type where limited ways of expression available and author selects one of them. The court held the inputs by publishers of Supreme Court cases in copy edited judgments to be minimal. The Apex court in that case also applied the principle/test of public domain and reiterated that once the work is in public domain, its reproduction or publication would not constitute infringement of copyright.‖