Requirements of protection: originality, fixation and the idea-expression divide

1. The statutory starting point

Section 13(1) says copyright subsists in original literary, dramatic, musical and artistic works, and in cinematograph films and sound recordings. The word “original” is attached only to the first four. Films and sound recordings are protected as investments, but section 13(3) denies protection to a film if a substantial part of it infringes another work, and to a sound recording made in breach of copyright in the underlying work.

The Act does not define originality. The meaning was left to the courts, and three answers have been given.

2. Three tests of originality

(a) Sweat of the brow: labour and capital are enough

In University of London Press v. University Tutorial Press (Chancery, 1916), Peterson J. held that examination papers were original literary works. Originality, he said, relates to the expression of thought, and the Act does not require the expression to be in an original or novel form; it requires only that the work not be copied and that it originate from the author. English law long protected directories, timetables and compilations on the strength of the skill, labour or capital invested. Walter v. Lane (House of Lords, 1900) even gave copyright to reporters in their verbatim reports of speeches by Lord Rosebery.

Indian courts followed. Burlington Home Shopping v. Rajnish Chibber (Delhi High Court, 1995) protected a customer database compiled through labour.

(b) Modicum of creativity: the US rejection of sweat

In Feist Publications v. Rural Telephone Service (US Supreme Court, 1991), the white pages of a telephone directory were held unprotectable. O’Connor J. treated originality as a constitutional requirement: the work must be independently created and possess at least some minimal degree of creativity. Labour alone does not qualify, however great. Alphabetical arrangement of names is too obvious to be creative.

(c) Skill and judgment: the Canadian middle course

In CCH Canadian Ltd. v. Law Society of Upper Canada (Supreme Court of Canada, 2004), McLachlin C.J. held that an original work must be the product of an exercise of skill and judgment that is more than purely mechanical. That excludes mere copying and mere labour, but does not demand creativity in the sense of novelty.

(d) The European standard

The CJEU in Infopaq International v. Danske Dagblades Forening (2009) held that a work is original if it is the author’s own intellectual creation, and that even an extract of eleven words could qualify. Football Dataco v. Yahoo! UK (CJEU, 2012) added that skill and labour in compiling data are not enough; there must be free and creative choices. After Brexit, the UK courts have continued to apply this standard for now.

3. Eastern Book Company v. D.B. Modak (2007)

In Eastern Book Company v. D.B. Modak, 2007 INSC 1266, (2008) 1 SCC 1, the publishers of the Supreme Court Cases reports sued the makers of software that reproduced judgments as published in SCC, with the publishers’ copy-editing. Judgments themselves are not protected: section 52(1)(q) allows their reproduction. The question was whether the editorial inputs made the reported version an original literary work.

The Court surveyed the English, American and Canadian positions and adopted the CCH approach. It rejected sweat of the brow, because protecting mere labour would let a publisher monopolise public material, and it declined to go as far as Feist. The standard is a minimal degree of creativity arising from skill and judgment. Applying it:

• Not protected: correcting spellings and typographical errors, adding citations and standard formatting, and similar inputs any skilled editor would make in the same way. These involve labour but no creative choice.
• Protected: headnotes and editorial notes (as the High Court had already held), and in addition the segregation of paragraphs, internal paragraph numbering, and indication of which judges concurred or dissented. These involve judgment about the structure of the text.

4. Idea and expression

Copyright protects the expression of an idea, never the idea itself. This is the principle behind Article 9(2) of TRIPS and Article 2 of the WIPO Copyright Treaty, which say protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts.

In Baker v. Selden (US Supreme Court, 1879), a book explaining a bookkeeping system did not give its author rights over the system or the ruled forms needed to use it. In India the leading case is R.G. Anand v. Delux Films, 1978 INSC 138, AIR 1978 SC 1613. The appellant’s play “Hum Hindustani” and the film “New Delhi” both dealt with provincialism in a marriage between families from different regions. Fazal Ali J. laid down propositions that are still recited:

1. There is no copyright in an idea, subject matter, theme, plot or historical or legendary facts; protection is confined to the form, manner and arrangement of their expression.
2. Where the same idea is developed differently, similarities are bound to occur, and the court must see whether the similarity is in fundamental or substantial aspects of the expression.
3. A sure test is whether the reader or viewer, after seeing both works, gets an unmistakable impression that the later work is a copy of the earlier.
4. Where the theme is the same but presented differently, so that the later work is a new work, there is no infringement.
5. Broad dissimilarities that show the defendant introduced changes negative an intention to copy.

The film was held not to infringe: the theme was common, the treatment different.

Merger and scenes a faire

• Merger. Where an idea can be expressed in only one or a few ways, the expression merges with the idea and is not protected, otherwise the idea would be monopolised. Rules of a contest and simple functional instructions are typical.
• Scenes a faire. Incidents, characters or settings that follow necessarily from a theme (a chase in a thriller, a villain in a revenge story) are not protected.

Titles are generally treated as too short to be works. Krishika Lulla v. Shyam Vithalrao Devkatta, 2015 INSC 781, held that there is no copyright in the title of a film ((“Desi Boys”)ldquo;Desi Boyz(“Desi Boys”)rdquo;) and that a synopsis, which was not shown to have been copied in expression, gave no claim.

5. Fixation and other requirements

• Fixation. The Indian Act does not state a general fixation requirement as the US Act does, but most definitions imply it: a sound recording is a recording, a film a visual recording, and a dramatic work excludes a film. Berne Article 2(2) leaves fixation to national law.
• Connection with India. Section 13(2) requires first publication in India, or Indian citizenship or domicile of the author; the International Copyright Order, 1999 extends protection to works of Berne, UCC and WTO countries.
• Lawfulness and morality. Courts have occasionally refused relief for works that are obscene or fraudulent, though the Act contains no express bar.

How this is examined

For the 2025 question on basic requirements, organise the answer as statute, the three tests of originality, Modak, idea-expression with R.G. Anand, and fixation. Comparative cases (Feist, CCH, Infopaq) are expected at LL.M. level. The same material answers questions on infringement, where the R.G. Anand test decides substantial copying, and on databases and AI outputs, where originality decides protection.