“Explain the doctrine of the ‘Sweat of the Brow’. Is it different from ‘Minimal degree of creativity’ for copyright protection? Discuss in detail with the help of case laws.”
QUESTION 2
“Explain the doctrine of the ‘Sweat of the Brow’. Is it different from ‘Minimal degree of creativity’ for copyright protection? Discuss in detail with the help of case laws.”
⟡ INTRODUCTION
Copyright law protects original works of authorship. But the meaning of “originality” has been interpreted differently in different jurisdictions.
Two major approaches developed:
- Sweat of the Brow Doctrine
- Minimal Degree of Creativity Standard
Both deal with how much effort or creativity is required to get copyright protection.
⟡ DOCTRINE OF SWEAT OF THE BROW
Meaning
The “Sweat of the Brow” doctrine means that copyright can be granted on the basis of labour, effort, skill, and time spent, even if there is little or no creativity.
This doctrine focuses on:
- Effort
- Labour
- Skill
- Time devoted
- Investment
Under this doctrine, if a person spends time and labour compiling information, they may get copyright protection.
Why was it developed?
Because courts felt that the person who invests his labour should get reward and protection from free-riding.
This doctrine mainly originated in UK and India (earlier judgments).
⟡ IMPORTANT CASE LAWS ON SWEAT OF THE BROW
1. University of London Press v. University Tutorial Press (1916)
- British court held that exam question papers were “original”.
- Not because of creativity, but because they involved labour, skill and judgement.
- Established Sweat of the Brow in copyright law.
2. Macmillan v. Cooper (AIR 1924 PC 75)
- Privy Council held that a compilation is protected when it involves time, labour, and skill, even if the material was not creative.
3. Burlington Home Shopping v. Rajnish Chibber (Delhi HC, 1995)
- Held that a “customer list” is copyrightable because it involved labour, skill, and careful arrangement.
- A classic example of Sweat of the Brow approach in India.
⟡ LIMITATIONS OF SWEAT OF THE BROW
- Encourages monopoly over facts.
- No requirement of creativity.
- Anyone who collects public facts could claim protection.
- U.S. Supreme Court rejected this doctrine.
⟡ MINIMAL DEGREE OF CREATIVITY (MODERN TEST)
Meaning
This doctrine means:
A work must show at least a small (minimal) amount of creativity to get copyright protection.
Even a tiny amount of creativity is enough — but mere labour or hard work is not enough.
Key Features
- Requires creativity, even if very low.
- Protects the expression, not facts.
- Prevents monopoly over public information.
IMPORTANT CASE LAWS ON MINIMAL CREATIVITY
1. Feist Publications Inc. v. Rural Telephone Services (U.S. 1991)
Landmark judgment.
The U.S. Supreme Court held:
- Facts are not copyrightable.
- A telephone directory is not original because it lacks creativity.
- “Sweat of the brow” is not the correct test.
- Minimal creativity is necessary.
This case changed global copyright understanding.
2. Eastern Book Company v. D.B. Modak (2008, Supreme Court of India)
This is the most important Indian case.
Held:
- India will not follow Sweat of the Brow alone.
- India adopts the middle path: “modicum of creativity” test.
- Headnotes in law reports require skill, judgment + some creativity.
- Purely mechanical compilation is not copyrightable.
Impact:
India moved away from protecting mere labour and accepted the creativity requirement.
⟡ DIFFERENCE BETWEEN SWEAT OF THE BROW & MINIMAL CREATIVITY
| Basis | Sweat of the Brow | Minimal Creativity |
|---|---|---|
| Requirement | Labour + skill + effort | At least some creativity |
| Origin | UK, early India | USA (Feist), later adopted partly by India |
| Protects | Even factual compilations | Only creative expression |
| Monopoly | Can create monopoly over facts | No monopoly over facts |
| Indian Position | Earlier followed | Now follows “modicum of creativity” after DB Modak |
⟡ INDIAN POSITION TODAY
After EBC v. Modak (2008), India follows the “modicum of creativity” test, which means:
- Labour alone is not enough.
- Creativity + intellectual effort required.
- A balance between sweat of the brow and Feist standards.
⟡ CONCLUSION
The doctrine of “Sweat of the Brow” historically gave protection based on labour and effort, but modern copyright law demands at least a minimal degree of creativity. India now follows a balanced approach after the DB Modak case.
Thus, the protection of copyright today is not based solely on effort, but on creative expression, even if minimal.
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