Critical pr0vided in S. 13(1) a Hence appellant

analysis 0f the judgment in Eastern B00k C0mpany…vs…DB M0dhak and its



The case is landmark judgment in the field 0f intellectual pr0perty
particularly 0n the subject matter 0f c0pyright. A paradigm shift was 0bserved
in the appr0ach 0f the c0urts after this judgment. The questi0n bef0re the
Supreme C0urt in this case was whether c0pyright can be c0nferred in the “c0py
edited” judgments 0r the raw judgments/0rders passed by the Supreme C0urt
under the head 0f ‘0riginal literary w0rk’ as pr0vided in the C0pyright Act,



Facts in brief

In this case the appellants were doing publication work of
the law related books and other literature. 0ne 0f very p0pular publicati0n 0f
the appellants was the law rep0rt “Supreme C0urt Cases” “SCC”. This was
prepared by the appellant after pr0curing the certified c0pies 0f the
judgments/0rders 0f the SC fr0m the registry. The w0rk was prepared by the
appellants with the help 0f team 0f assistants by way of vari0us inputs such as
additi0n 0f cr0ss references, f0rmatting 0f the text, numbering the paragraph,
verificati0n etc. are put in the judgements and 0rders t0 make them userfriendly.

Acc0rding t0 the
appellant, “SCC” was  a law rep0rt which
carried case rep0rts c0mprising 0f the appellants’ versi0n after making ab0vementi0ned
changes as ‘0riginal literary w0rk’ as pr0vided in S.13 0f the c0pyright
act 1957 which pr0vides f0r the subject matter f0r the c0pyright 0r in 0ther w0rds,
in what subjects c0pyright subsists. And acc0rding t0 the appellant their w0rk
is 0riginal literary w0rk as pr0vided in S. 13(1) a

Hence appellant s0lely has the exclusive right t0 make
printed and electr0nic c0pies 0f the “c0py edited” w0rk as pr0vided in S. 14
0f the c0pyright act, that pr0vides f0r the meaning 0f the c0pyright and
appellant has the s0le right t0 repr0duce their w0rk in any  material f0rm including scanning, st0ring and
disseminati0n 0f the w0rk.


And any scanning , c0pying 0r repr0ducti0n d0ne 0f 0r fr0m
the rep0rts 0r pages 0r paragraphs 0r p0rti0ns 0f any v0lumes 0f “SCC” by any 0ther
pers0n was an infringement 0f the c0pyright within the meaning 0f S. 51 0f the
C0pyright Act, 1957.

The resp0ndents in the present case were publishing their s0ftware
in the same w0rk by taking the w0rk 0f the appellants verbatim including the
sequencing, selecti0n and arrangements 0f the cases al0ng with style, f0rmatting,
and the c0py edited paragraph numbers, f00tn0te numbers, cr0ss references etc. 0n
the basis 0f which claimed c0pyright pr0tecti0n and restraint 0n resp0ndents.


Here few issues ar0se bef0re the Supreme C0urt t0 decide.

1.      What shall be
the parameters 0f 0riginality in the “c0py edited” judgments 0f the Supreme C0urt
i.e. “derivative w0rk” s0 as t0 c0nsider it as an 0riginal literary w0rk and
aff0rd c0pyright pr0tecti0n t0 the auth0r as pr0vided in c0pyright act, 1957?

2.      W0uld the
investment 0f lab0ur, skill and capital qualify the appellant f0r the c0pyright
pr0tecti0n in the derivative w0rk?

3.      Whether entire w0rk
0f the appellant in the “c0py edited” judgments is entitled t0 be pr0tected
under the c0pyright act 0r 0nly s0me inputs 0r features added 0r changed by
appellant can be c0nsidered as 0riginal literary w0rk?

T0 substantiate their claim appellant
referred vari0us Indian and English judgments

But the primary reliance 0f the
appellant was 0n the English d0ctrine 0f “sweat 0f the br0w”

Relevant p0rti0n 0f s0me imp0rtant
cases are pr0vided hereunder:-

“Walter and the An0ther…vs..Lane”

In this case the issue inv0lved was
whether the rep0rter 0f a newspaper after taking n0tes 0f a speech delivered by
someone in public, publishes in news paper a verbatim rep0rt 0f the speech is
the auth0r 0f the rep0rt within the meaning 0f the C0pyright Act, 1842, and is
entitled t0 the c0pyright in the rep0rt.

The H0use 0f L0rds held that “each rep0rter is entitled t0 rep0rt and
each und0ubtedly w0uld have a c0pyright in his 0wn published rep0rt…., but it
is a s0und principle that a man shall n0t avail himself 0f an0ther’s skill, lab0ur
and expense by c0pying the written pr0duct there0f and c0pyright has n0thing t0
d0 with the 0riginality 0r the literary merits 0f the auth0r 0r c0mp0ser”

An0ther case 0n the subject 0f 0riginality
is the

“University L0nd0n Press Ltd. …vs.…
University Tut0rial Press Ltd”

Where “0riginality was held t0 be n0t
required t0 be n0val f0rm but the w0rk sh0uld n0t be c0pied fr0m 0ther w0rk”
means, it sh0uld be 0riginal

After c0nsidering these cases c0urt 0bserved

“The decisi0ns are the auth0rity 0n the pr0p0siti0n
that the w0rk that has been 0riginated fr0m an auth0r and is m0re than amere c0py
0f the 0riginal w0rk w0uld be sufficient t0 generate c0pyright. This appr0ach
is c0nsistent with the ‘sweat 0f the br0w’ standards 0f 0riginality. The creati0n
0f the w0rk which has resulted fr0m little bit 0f skill, lab0ur and capital are
sufficient f0r a c0py right in derivative w0rk 0f and auth0r”

T0 the c0ntrary 0f the d0ctrine 0f
‘sweat 0f the br0w’ the resp0ndents referred few judgements 0f the American C0urts.

“Feist  Publicati0ns
Inc. …vs…. Rural Teleph0ne Service C0. Inc.”

“The United States Supreme C0urt held
that the pre requisite  0f c0pyright is 0riginality.
T0 qualify f0r c0pyright pr0tecti0n, a w0rk must be 0riginal t0 the auth0r. 0riginal,
as the term us used in c0pyright, means 0nly that the w0rk was independently
created by the auth0r (as 0pp0sed t0 c0pied fr0m 0ther w0rks), and that is p0ssesses
at least s0me ‘minimal degree 0f creativity’. The requisite level 0f creativity
is extremely l0w; even a slight am0unt will suffice.

The c0urt rejected the d0ctrine 0f
the sweat 0f the br0w as this d0ctrine had numer0us flaws, the m0st
glaring  being… it extended c0pyright
pr0tecti0n in a c0mpilati0n bey0nd selecti0n and arrangements ‘ the c0mpiler’s 0riginal
c0ntributi0n’ t0 the facts themselves. A subsequent c0mpiler was n0t entitled t0
take 0ne w0rd 0f inf0rmati0n previ0usly published, but rather had t0 independently
w0rk 0ut the matter f0r himself, s0 as t0 arrive at the same result fr0m the
same c0mm0n s0urce 0f inf0rmati0n.

‘Sweat 0f the br0w’ C0urts thereby
eschewed the m0st fundamental axi0ms 0f c0pyright law that n0 0ne may c0pyright
facts 0r ideas. “The ‘sweat 0f the br0w’ d0ctrine fl0uted basic c0pyright
principles and it creates a m0n0p0ly in public d0main materials with0ut the
necessary justificati0n 0f pr0tecting and enc0uraging the creati0n 0f writings
by auth0rs.”

Theref0re, the American C0urts ev0lved
the d0ctrine 0f ‘minimal level 0f
creativity’ t0 aff0rd c0pyright pr0tecti0n.

Als0 in an0ther case 0f Key
Publicati0ns In. …vs… Chinat0wn T0day Publishing Enterprises Inc.

The United States C0urt 0f appeal held that individual c0mp0nents 0f c0mpilati0n
are generally within the public d0main and thus available f0r public. There are
three requirements f0r a c0mpilati0n t0 qualify f0r c0pyright pr0tecti0n: (1)
the c0llecti0n and assembly 0f pre-existing data: (2) selecti0n, c00rdinati0n 0r
arrangements 0f the data; and (3) the resulting w0rk that c0mes int0 being is 0riginal,
by virtue 0f the selecti0n, c00rdinati0n 0r arrangement 0f the data c0ntained
in the w0rk. F0r 0riginality, the w0rk is n0t required t0 c0ntain n0velty.

The d0ctrine 0f “sweat 0f the br0w”, rewarded c0mpilers f0r their eff0rts
in c0llecting facts with a de fact0 c0pyright t0 th0se facts and this d0ctrine
w0uld prevent, preclude the auth0r abs0lutely fr0m saving time and eff0rt by
referring t0 and relying up0n pri0r published material. It extended c0pyright
pr0tecti0n in c0mpilati0ns bey0nd selecti0n and arrangement- the c0mpiler’s 0riginal
c0ntributi0n- t0 the facts themselves drawn 0n “sweat 0f the br0w”. The c0urt
discarded “sweat 0f the br0w” n0ti0ns 0f the c0pyright law.

Macmillan and C0mpany…vs…K. and J. C00per

T0 secure c0pyright f0r this pr0duct,
it is necessary that the lab0ur, skill and capital expended sh0uld be
sufficient t0 impart t0 the pr0duct s0me quality 0r character which the raw
material did n0t p0sses and which differentiates the pr0duct fr0m the raw
material. The c0urt appr0ved the princpiples enunciated in the case 0f
University 0f L0nd0n Press,  dealing with
the meaning 0f the w0rds ‘0riginal literary w0rk’ that the 0riginal d0es n0t
mean expressi0ns 0f 0riginal 0r inventive th0ught. The c0pyright act is n0t c0ncerned
with the 0riginal ideas, but with the expressi0n 0f th0ught.

C0mpilati0n t0 be s0mewhat different and n0t mere pr0duct 0f lab0ur and

CCH Canadian Ltd. …vs.… Law S0ciety 0f Upper Canada

In this case the Canadian supreme c0urt
was 0f the view that t0 claim c0pyright in a c0mpilati0n, the auth0r must pr0duce
a material with exercise 0f his skill and judgment which may n0t be creativity
in the sense that it is n0t n0vel 0r n0n-0bvi0us but at the same time it is n0t
the pr0duct 0f merely lab0ur and capital. Further the exercise 0f skill and
judgment required t0 pr0duce the w0rk must n0t be s0 trivial that it c0uld be
characterised as a purely mechanical exercise.

Based 0n the view taken by the
Canadian Supreme C0urt the c0urt 0bserved and held:-

“The sweat 0f the br0w appr0ach t0 0riginality
is t00 l0w a standard which shifts the balance 0f c0pyright pr0tecti0n t00 far
in fav0ur 0f the 0wner’s right, and fails t0 all0w c0pyright t0 pr0tect the
public’s interest in maximising the pr0ducti0n and disseminati0n 0f
intellectual w0rks. 0n the 0ther hand the creativity standard 0f 0riginality is
t00 high. A creative standard implies that s0mething must be n0vel 0r n0n 0bvi0us-
c0ncepts m0re pr0perly ass0ciated with patent law than c0pyright law. By way 0f
c0ntrast, a standard requiring the exercise 0f skill and judgement in the pr0ducti0n
0f a w0rk av0ids these difficulties and pr0vides a w0rkable and appr0priate
standard f0r c0pyright pr0tecti0n that is c0nsistent with the p0licy 0f the 0bjectives
0f the c0pyright act.”

“T0 secure a c0pyright f0r the
judgments delivered by the c0urts, it is necessary that the lab0ur, skill and
capital invested sh0uld be sufficient t0 c0mmunicate 0r impart t0 the judgment
printed in “SCC” s0me quality 0f character which the 0riginal judgment d0es n0t
p0ssesses and which differentiates the 0riginal judgments fr0m the printed 0ne.”

“The c0pyright act is n0t c0ncerned
with the 0riginal idea but with the expressi0n 0f th0ught. C0pyright has n0thing
t0 d0 with 0riginality 0r literary merit. C0pyrighted material is that what is
created by the auth0r by his 0wn skill, lab0ur and investment 0f capital, may
be it is a derivative w0rk which gives a flav0ur 0f creativity. The c0pyright w0rk
which c0mes int0 being sh0uld be 0riginal in the sense that  by virtue 0f selecti0n, c00rdinati0n 0r
arrangement 0f pre-existing data c0ntained in the w0rk, a w0rk s0mewhat different
in character is pr0duced by the auth0r. 0n the face 0f the pr0visi0ns 0f the
Indian C0pyright act, 1957, we think that the principle laid d0wn by the
Canadian C0urt w0uld be applicable in c0pyright 0f the judgments 0f the apex c0urt.
We make it clear that the decisi0n 0f 0urs w0uld be c0nfined t0 the judgments 0f
the c0urt which are in the public d0main as by virtue 0f S. 52 0f the act there
is n0 c0pyright in the 0riginal text 0f the judgments. T0 claim c0pyrights in a
c0mpilati0n, the auth0r must pr0duce the material with exercise 0f his skill
and judgment this may n0t be creativity in the sense that it is n0vel 0r n0n-0bvi0us,
but at the same time it is n0t a pr0duct 0f merely lab0ur and capital. The
derivative w0rk repr0duced by the auth0r must have s0me distinguishable
features and flav0ur t0 raw text 0f the judgments delivered by the c0urt. The
trivial variati0n 0r inputs put in the judgment w0uld n0t satisfy the test 0f c0pyright
0f an auth0r”.

“N0velty 0r inventi0n 0r inn0vati0n
idea is n0t the requisites f0r affording the pr0tecti0n 0f c0pyright but the
minimal degree 0f creativity… the af0resaid inputs put by the appellants in
the c0pyedited judgments d0 n0t t0uch the standards 0f creativity required f0r
the c0pyright.”

“H0wever, making paragraph in the
judgment c0uld n0t be termed as mechanical pr0cess as It requires considerable legal
acumen, discernment and ch0ice and thus it can be called as a w0rk 0f an auth0r.
The creati0n 0f paragraphs w0uld 0bvi0usly require extensive reading, careful
study 0f subject and exercise 0f judgment t0 make a paragraph which has dealt
with particular aspect 0f the case and separating intermixing 0f a different
subject. Creati0n 0f paragraphs by separating them fr0m the passage w0uld
require kn0wledge s0und judgment and legal skill”


C0ncluding remarks

The Supreme C0urt 0f India ad0pted
the middle path between tw0 extremes that is “sweat 0f the br0w” and “m0dicum 0f

The English c0urts t0 reward the lab0ur
0f the auth0r and t0 prevent an0ther pers0n fr0m benefitting fr0m the fruits 0f
his lab0ur. In d0ing s0, c0urts have g0ne bey0nd the limits 0f c0pyright law
and c0nsequently unwittingly, extended pr0tecti0n t0 material 0utside the d0main
0f c0pyright law, such as ideas, data
and facts. This c0ncept is fundamentally flawed and is n0t based up0n s0und
principles 0f c0pyright laws. C0pyright pr0tects the 0riginal expressi0n, 0riginated
fr0m the auth0r. The ‘sweat 0f the br0w’ principle is an aberrati0n 0f the
requirement 0f 0riginality and vi0lates the fundamental axi0m 0f c0ncept 0f c0pyright
i.e. c0pyright cann0t subsist in ideas 0r facts. The inherent pr0blems with
these d0ctrine is that the c0urts will end up c0nferring c0pyright 0n all w0rks
based 0n lab0ur and skill empl0yed in the w0rk thereby, creating m0n0p0ly and 0bstruct
disseminati0n 0f kn0wledge.

C0pyright law in India has been
shaped by English jurisprudence. This appr0ach underwent a paradigm shift in
this case, where the c0urt departed fr0m the earlier f0ll0wed appr0ach by its
English c0unterparts and tilted t0wards the new requirement 0f having s0me am0unt
0f creative spark t0 c0nfer c0pyright pr0tecti0n.


























1.      Dr. V K Ahuja: Law
relating t0 Intellectual Pr0perty Rights, Sec0nd Editi0n (Lexis Nexis 2015)

2.      Delhi University
Faculty 0f Law Case material 0n Intellectual Pr0perty Law-II

3.      Vari0us
judgments 0f Supreme C0urt 0f India, Supreme C0urts 0f USA and vari0us English