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  Originality is the sine qua non of copyrightability. A work must be srcinal to receive copyright protection. Yet, it is a very minimal requirement. 1 To prove srcinality, an author needs to show that the expression for which protection is sought srcinated with her and was not copied from someone else. Copyright law fails to take the next step and calibrate the scope of the copyright protection to the degree of the work's srcinality. Originality under the extant regime is a mere threshold require- ment, and, moreover, one that can  be easily satisfied. 2  The problem with the existing design is that by rewarding minimally srcinal works and highly srcinal works alike, the law incentivizes authors to produce works containing just enough srcinality to receive  protection - but not more. This result is neither efficient nor just. Whether one subscribes to utilitarian theories  of copyright law or to desert-based justifications, it appears that identical treatment of all works, regardless of the level of srcinality, is a misguided idea. From an efficiency perspective , the current approach incentivizes production of too many works at the low end of the srcinality spectrum and a suboptimal number of truly srcinal works. From a fairness perspective , the distortion may be even greater as the just reward of authors who made a significant contribution to society is supposed to be much greater than for those who made a relatively insignificant contribution. Recent discussions have brought forth an unfortunate disharmony in modern copyright law. “Original” is usually understood as something that is new or not done before; a primary type or form, from which others are derived. 3 The only part of a work that is protected by copyright is that which is srcinal to the author. There is no requirement that the idea itself be new in order for copyright protection to be given. An idea can be expressed in a number of ways, and it is only the modes of expressing the idea that are given protection. In copyright law srcinal does not have its ordinary dictionary meaning and courts have interpreted the concept very loosely The basic foundation of our present copyright law 4  lies in the United States Constitution, Article 1, Sec. 8, Clause 8 , wherein it is provided that: It is quite evident from the wording of the Constitution that some degree of srcinality is essential to fulfil the  purpose of promoting the progress of science and the useful arts ; 5   but the courts have yet to agree upon a universal test of srcinality to be applied in all cases. The two extremes of degree seem to be found in those courts which emphasize that there must be an exercise of creativity or skill 6 on the part of one seeking a valid copyright, and 1    Bleistein v. Donaldson Lithographing Co.,  188 U.S. 239, 250 (1903) ( Person- ality expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man's alone. That something he may copyright ) (Holmes, J.). 2  Cf. Douglas Lichtman, Copyright as a Rule of Evidence, 52 Duke L.J. 683, 704-16 (2003) (rationalizing the minimalist srcinality requirement as a cost-saving eviden- tiary device that allows courts to deny protection to works not exhibiting distinctive- ness that makes it easv to establish copying). 3    Key Publ‟ns, Inc. v. Chinatown Today Publ‟g Enters.,   945 F.2d 509, 512 (2d Cir. 1991) (“Simply stated, srcinal means not copied, and exhibiting a minimal amount of creativity.”); WEBSTER’S ENCYCLOPEDIC UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE 1015 (rev.ed. 1994). 4  Title 17, United States Code Annotated. 5    National Comics Publications v. Fawcett Publications,  191 F.2d 594 (2d Cir. 1951);  Forstman Woolen Co. v. J. W.  Mays, Inc.,  89 F. Supp. 964, 971 (E.D.N.Y. 1950) 6    Jackson v. Quickslip Co., Inc.,  27 F. Supp. 338 (E.D.N.Y. 1939);  Norden v. Oliver Ditson Co ., 13 F. Supp. 415 (D.C. Mass. 1936).  other courts that talk in terms of labor, 7 or more vividly speaking, the sweat of the brow. 8  In the middle of this dilemma are decisions that loosely speak of skill, labor and judgment in nebulous terms. As stated in  Emerson v. Davies 9   “In truth, in literature, in science, and in art, there are, and   can be, few, if any, things which, in an abstract sense, are strictly new and srcinal throughout. . . . [I]t is a great mistake to Cain v. Universal Pictures Co 10 .,   Courts have held repeatedly that such similarities and incidental details necessary to the environment or setting of an action are not the material of which copyrightable srcinality consists”.   Adventures in Good Eating v. Best Places to Eat, 11   “Originality in the compilation of a directory does not mean an entirely new conception of a direc tory. Any person may produce a directory of restaurants, but he must start from scratch , do his own collecting, his own appraisal, and his own description and editing”.   JUDICIAL RESPONSE TO CONCEPT OF ORIGINALITY The issue of srcinality was examined in detail in the University of London Press 12  case in 1916   literary works cover work which is expressed in printing or writing, irrespective of the question whether the quality or the style is high.   The court then went into the definition of srcinality and held that an srcinal work must not be copied from another work, but that it should srcinate from the author. The implication of this is that the constituent parts of the work themselves need not be new in any sense and that the work as a whole can be made up from commonplace and  pre-existing materials.   In the present case it was not suggested that any of the [examination] papers were copied [The examiners] proved that they had thought out the question which they set, and that they had made notes of memoranda for future questions and drew on those for the purposes of the questions which they set. The papers which they prepared srcinated from themselves, and were within the meaning of the Act, srcinal 13  Thus, the University of London Press 14  case evolved the principle that the world srcinal requires only that the work should not be copied but should be srcinated from the author.   In the  LB (Plastics) Ltd  15  case the Court held that the question of srcinality depended upon the amount of labour, skill and judgment expended on the creation of the work  16 . the  Bleistein 17  case 7    New Jersey Motor List Co. v. Barton Business Service , 57 F.2d 353 (D.N.J. 1931);  Jeweler's Circular Pub. Co. v.  Keystone Pub. Co.,  281 Fed. 83 (2 8    Dorsey v. Old Surety L. Ins. Co.,  98 F.2d 872, 119 A.L.R. 1250 (10th cir. 1938). 9  8 Fed. Cas. 615 (C.C. Mass. 1845). 10  47 F. Supp. 1013 (S.D. Cal. 1942). 11  131 F.2d 809 (7th Cir. 1942). 12   University of London Press Ltd  . v. University Press Ltd  . (1916)2 ch. 601. 13    Ibid  . at pp. 608-609. This concept has been followed subsequently in Ladbroke (Football) case. Supra note, 37, in  Duriron Company Inc . v.  Hugh Jennings & co. Ltd. (1984) FSR I. 14   Supra note. 38. 15    LB (Plastics) Ltd. v. Swish Products Ltd  . (1979) RPC 551 16  See also,  Biotrading and Financing OY   v.  Biohit Ltd  ., (1998) FSR 109. In thus case the Court of Appeal sand that the question is whether sufficient independent labour, skill and judgment had been expanded in the creation and this is a matter of fact. See also, Guid v. Eskandar Ltd. (2201). 17    Bleistein v.  Donaldson Lithographing Co . 188 US 239 Ct. 298, 47 L. Ed. 460 (2201).  The Court articulated a board concept of srcinality, refusing to weigh the creative or artistic merits or lithographs against their more mundane commercial functions.   Recently, US Supreme Court in the  Feist Publication 18  case in 1991 have applied the minimal degree of creativity in determining the srcinality The Court held that the srcinality requirement in copyright law is some minimal degree of creativity and an author who claims infringement must prove the existence of intellectual production, of thought, and conception. As early as 1924 while interpreting Sec 2 of the Imperial Copyright Act, 1914, in the Privy Council case of Macmillan Company v. J.K. Cooper  19  , the Court held that the word srcinal does not mean that the work must be expressions of srcinal or invented thoughts, but it should not be copied from other works   Indian Scenario  based on University London case holding- a case under the UK Law. In Kartar Singh Giani v. Ladha Singh  20  , it was observed that copyright law does not prevent a person from taking what is useful from an srcinal work with additions and improvements. Under the guise of a copyright the owner of a copyright cannot ask the court to close all the venues of research and scholarship and all frontiers of human knowledge. Later, the Madras High Court in C. Cunniah & Co. v. Balraj & Co  21  , evolved the principle that the use of srcinal skill or labour is essential to acquire copyright in a work as a production of his labour. Again, in Mishra Bandhu v. Shivratan  22  , srcinality and registration was held the  sine qua non  of copyright. In this case it was observed that the real test in adjudging srcinality of the work is whether it involved skill, labour and knowledge of the author. In R.G Anand v. Delux  23    the Supreme Court analyzed the concept of srcinality while deciding whether the film “New Delhi” infringed the copyright in the play “Hum Hindustani”. There were considerable similarities between the play and the film. The Court observed the film as having broader perspective and there was dissimilarities in scenic arrangements and presentation, the work was held srcinal and non violative of copyright in the play. The above cases clearly show that Indian jurisprudence had been relying too heavily on the English understanding of what laws should be like, and this had an adverse effect on the development of Indian jurisprudence in this field. This was brilliantly articulated by Mr. Rajeev This approach underwent a paradigm shift in the EBC case  , where the court departed from the earlier followed approach by its English counterparts (otherwise known as „sweat of the brow‟  ) and tilted towards the new requirement of having some amount of creative spark to confer copyright protection (otherwise known as „modicum of creativity‟  ).   CCH Canadian Ltd. v. Law Society of Upper Canada  24  , which is a mid-way between the two doctrines. The Court noted that the two positions i.e. the “sweat of the brow” and “modicum of    creativity” were extreme positions. The Court preferred a higher threshold than the doctrine of “sweat of the brow” but not as high as “modicum of 18    Feist Publications  v.  Rural Telephone Service , 499 US 340 (1991). 19    Macmillan Company Ltd  . v.  K. & J. Cooper  . AIR 1924 PC 75. 20   AIR 1934 Lah 777   21   AIR 1961 Mad III   22    Mishra Bandhu Karyalaya and others v. Shivratanalal Koshal  ., AIR 1976 MP. 261   23   AIR 1978 sc 1613   24  [2004] 1 SCR 339  creativity”. The Canadian standard of copyright is based on  skill and judgment and not merely labour, and the Indian court too followed the same. However the court also noted that the application of skill and judgment should be substantial and not merely trivial. Court also warned that novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity.    Books ORIGINALITY AS A CONDITION PRECEDENT    Maps  Amsterdam v. Triangle Pub., Inc. 25   [I]n order for a map to be copyrightable its preparation must involve a modicum of creative work.    Advertisements To be entitled to a copyright the article must have by itself some value as a composition, at least to the extent of serving some purpose other than as a mere advertisement or designation of the subject to which it is attached.    Photographs and Works of Art Photographs and works of art both seem to follow the modern trend of copyright thought that srcinality pertains merely to independent work on the part of an author.   In the case of  Burrow-      Music  Northern Music Corp. v. King Record Distributing Co. 26    ; srcinality of rhythm is a rarity, if not an impossibility.    Preemption and Citation There is now a greater expectation of both srcinality and citation. If preemption loosely resembles the paradigm of srcinality in copyright, citation loosely resembles the unsrcinality paradigm of precedential authority in legal argument.    Precedent The peculiar conception of srcinality found in the context of lawyers' own work - arguing through precedent - tends to frame the treatment of literary works under copyright law, and of legal scholarship in law review publishing.    Derivative Work   The srcinality requirement in derivative work is that it should srcinate from the author by application of substantial degree of skill- industry or experience. The copyright in a derivative 25  189 F.2d 104 (3rd Cir. 1951). 26  105 F. Supp. 393 (S.D.N.Y. 1952).
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