Abstract: The doctrine of Sweat of the Brow, once a cornerstone of copyright law, has undergone significant evolution in English and Indian legal systems. Initially, it granted copyright protection based on the effort, skill, and labour expended in creating a work, rather than its originality or creativity. However, recent jurisprudence has shifted towards a more stringent requirement of creativity for copyright protection.

This shift is evident in cases like Feist Publications Inc. v. Rural Telephone Service Co. Inc. and Eastern Book Company v. D.B. Modak, where courts emphasized that copyright is meant to promote the progress of science and the arts by rewarding original expression, not merely effort or labour. This evolution reflects a broader understanding that copyright is about incentivizing and rewarding creative expression, aligning copyright law more closely with its underlying purpose of promoting progress in science and the arts.

Introduction
"The sine qua non of copyright is originality."1 Originality is a precondition to copyright protection. If the work of a person is not original but a mere copy of someone else`s original work then copyright protection cannot be granted to such a person. Thus, for a work to be original it is important that it should not have been copied from another work. Protection of copyright in a work is necessary for the purpose of protecting a person's creative expression and to encourage creative expression.

Copyright protection should be a form of reward for a person seeking protection of his original work.2 For a work to be protected under the copyright law, it is imperative to ensure that such is an original work and is not copied from any other work of any other person. Such a right is granted in relation to original works since one has the right of protection over the work completed through one`s own efforts.

It is important to note that with regard to R.G. Anand v. Delux Films & Others 3 there can be no copyright in an idea or subject matter but only in the arrangement and expression of such idea. It is not even necessary that the work involve novel expression of a thought. All that is required for originality of expression is that the expression should not be copied from another work. Thus, the work should be composed by the author independently. The agreement on TRIPs provides that the copyright protection shall extend to expressions and not to the ideas, procedures and methods of operations.4

Berne Convention, in context of collection of works, identifies the selection and arrangement as elements of "intellectual creations", which in turn, more broadly characterizes 'literary work and artistic works' protected under that multinational organization. The Trade Related Aspects of Intellectual Property' annexed to the World Trade Organization treaty and the 1996 World Intellectual Property Organization Copyright. Treaty also adopts the "intellectual creation" standard in connection with the compilation.5

The test of Sweat of the Brow Test was originally propounded in University London Press v. University Tutorial Press6 , which conferred copyrights on work merely because time, energy, skill and labour were expended (i.e. originality of skill and labour).7The Privy Council had approved this principle in the case of Macmillan & Company Ltd. v. Cooper,8 wherein it was held that the product of the labour, skill and capital of one man which must not be appropriated by another.

This approach developed in U.K. and had been followed by the Indian Courts before the test of 'modicum of creativity' came into scene. The approach of the courts as above is often referred to as the "sweat of the brow" doctrine where more importance is given as to how much labour and diligence it took to create a work, rather than how original a work is.9 This approach was observed in the case of Burlington Home Shopping v Rajnish Chibber.10 For example, a person collected various poems of a famous poet, whose poems were already in public domain.

He published a book of these poems just by compiling them. He even did not use his own judgment and creativity in this compilation. In this case he cannot claim copyright as the work is not original. If the person had added his own views also in the book, regarding the poems, then copyright could have been given to him. But if doctrine of sweat of the brow has been applied in the abovementioned example, the case would have been different.

The work .i.e. the book of compiled poems would have been subject to copyright protection. The labour spent in compiling the poems in the book, without any creativity, has been enough to get the protection of copyright, under the regime of the doctrine of sweat of the brow. In 1991, the U.S.Court gave a remarkable judgment of Feist Publication v. Rural Publication11 , which flatly rejected the sweat of the brow doctrine and held that expenditure of effort does not, in itself,merit protection. The Supreme Court promoted creative originality theory and tried to abolish this doctrine of sweat of the brow.

Historical Development Of Sweat Of The Brow Doctrine:

• Position In English Law (UK)

  University of London Press v. University Tutorial Press12 the test of "originality" was explained by the Chancery Division of England which is also commonly cited as an archetypal "sweat of the brow". In this case a resolution by the University of London stated that the copyright of all the examination papers set by the examiners employed by the University vested with the University. Examiners were appointed for the purpose of setting the examination papers for matriculation examinations.
  
  They were free, subject to a syllabus and having regard to the knowledge expected from students, to choose their own questions. The University entered into an agreement with the University of London Press Limited to assign the copyright and all rights to publish the matriculation examination papers to the later for a consideration. Later, the University Tutorial Press Limited issued a publication which included sixteen out of forty-two matriculation papers.
  
  The papers were not copied from the publication of the University of London Press Limited, but were taken from copies of the examination papers supplied by students. In addition to the question papers, the publication also contained answers to the questions in some of the papers and also made some criticism on the way the papers were set. The plaintiff, University of London Press, sued University Tutorial Press for infringement of copyright.
  
  The plaintiff contended that the term "literary work" as used in the Act has a very broad meaning covering work which are expressed in print or writing, irrespective of whether the quality or style is high and includes maps, charts, plans, tables, and compilations. Therefore the examination papers will also fall under the category of "literary work". The defendant contended that questions were of common type and were not unique or distinct enough to claim copyright.
  
  The Court held that the Copyright Act does not require that expression be in an original or novel form. It does, however, require that the work not be copied from another work. It must originate from the author. The question papers are original within the meaning of copyrightlaws as they were originated from the authors.
  
  The court held that merely because similar questions have been asked by other examiners, the plaintiff shall not be denied copyright. This doctrine "sweat of the brow" was used in Walter v. Lane13 and later in the case of Ladbroke (Football) Ltd. v. William Hill (Football) Ltd14 where the Court said that it is immaterial whether work is wise or foolish, accurate or inaccurate, or whether it has or does not any literary merit. The case reiterated the requirement of 'labour, skill and judgement' and the requirement of originality is limited to the extent that the work originated from the author.15
   

• Position In The United States Of America

  USA has the oldest and the most developed Copyright laws in the world. The courts have given importance to both the creative and subjective contribution of the authors since the late 17th century.16 It also gives emphasis to literary and artistic merits of the work.17 In the case of Bleistein v. Donaldson Lithographing Co. 18 decided in 1903, the United States Supreme Court revisited the questions of originality with respect to copyright and rejected the notion that originality should be decided with reference to the artistic merits of the work.
  
  The court did not consider the novelty or creativity of the work, but rather the presence or absence of the putative artist's personal expression. If the item exhibits a "distinguishable variation" from another work, the law presumes that such a variation bears the imprint of the author's person, thereby entitling the work to copyright protection. This Bleistein test was later applied in various other cases especially the ones relating to copyright of fine arts.19

Feist Publications20 is a landmark judgment in which the US Supreme Court insisted for a minimum amount of creativity as a prerequisite to claim copyright protections. The facts of the case are as follows. Rural Telephone Service Company was public utility providing telephone services. Under some local regulation, all telephone companies had to issue annually an updated telephone directory. Rural Telephone Service published a telephone directory using this data. Feist Publications Inc. was a publishing company specialized in area-wide telephone directories. Feist's directories covered a wide range of geographical area covering 11 different telephone service areas.

Both the companies distribute the directories free of cost to its subscribers and earn revenue on the advertisements in yellow pages. Both competed vigorously for yellow pages advertising. Feist not being a telephone company, lacked independent access to any subscriber information. To obtain the listings for its directory, Feist approached each of the 11 telephone companies operating in the area and offered to pay for the right to use its white pages listings.

Rural refused to license its listings to Feist. Thus Feist used Rural's listings without their consent. Feist then hired personnel to investigate and verify the data. Therefore Feist's listing had more information that Rural's. But some of these listings were identical to that of Rural. Rural telephone Service sued Feist Publications for copyright infringement.

The major question of law was whether a compilation like that of a telephone directory is protected under the Copyright law. The court held that the facts like names, addresses etc are not copyrightable, but compilations of facts are copyrightable. This is majorly owing to the unique way of expression by way of arrangement and if it possesses at least some minimal degree of creativity, it will be copyrightable. The Court held that Rural's directory displayed a lack of requisite standards for copyright protection as it was just a compilation of data without any minimum creativity, which was a requirement for copyright protection. Hence, Rural's case was dismissed.

In Key Publications, Inc. v. Chinatown Today Publishing Enterprises Inc 21 , the US Supreme Court defined creativity negatively by describing how a compiler's work might fail to satisfy the requirement; selections and arrangements that are mechanical, routine, common place, typical, garden variety, obvious, inevitable, time-honoured, age-old, or dictated by law will fail to pass muster22 However, the opinion does not make clear whether originality is to be found by looking at the work or by evaluating the mental processes that went into producing it.

In This Case, The US Supreme Court Laid Down Three Requirements For A Compilation To Qualify For Copyright Protection:

1. The collection and assembly of pre-existing data;
2. Selection, coordination or arrangement of the data; and
3. The resulting work that comes into being is original, by virtue of the selection, coordination or arrangement of the data contained in the work.

Position In India

India strongly followed the doctrine of 'sweat of the brow' for a considerably long time. The Supreme Court of India, following the approach of English Courts, observed that copyright law does not prevent a person from taking what is useful from an original work with additions and improvements.23 In the case of Burlington Home Shopping v Rajnish Chibber24, were the facts were similar to that of Feist's case 25, the court following the doctrine held that a compilation is copyrightable.

However, the standard of 'originality' followed in India is not as low as the standard followed in England. The Bombay High Court in its judgement regarding copyright of a news article stated that there is no copyright for happenings and events which could be news stories and a reporter cannot claim any copyright over such events because he/she reported it first.26 The ideas, information, natural phenomena and events on which an author spends his/her skill, labour, capital, judgment and literary talents are common property and are not the subject of copyright.

Hence, there is no copyright in news or information per se. However, copyright may be obtained for the form in which these are expressed because of the skill and labour that goes into the writing of stories or features and in the selection and arrangement of the material.27

The most important Indian Case on this subject is Eastern Book Company v. D.B. Modak28 , where the Supreme Court discarded the 'Sweat of the Brow' doctrine and shifted to a 'Modicum of creativity' approach as followed in the US. The dispute is relating to copyrightability of judgements. The facts of the case is that SCC, the Supreme Court Case reporter, was aggrieved by other parties infringing their copyright and launching software containing the judgements edited by SCC along with other additions made by the editors of SCC like cross references, head notes, the short notes comprising of lead words and the long note which comprises of a brief description of the facts and relevant extract from the judgments of the court and standardisation and formatting of text, etc.

The notion of "flavour of minimum requirement of creativity" was introduced in this case. It was held that 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 a copyright is required. The Court held that these inputs made by the editors of SCC can be given copyright protection because such tasks require the use of legal knowledge, skill and judgement of the editor. Thus, this exercise and creation thereof has a flavour of minimum amount of creativity and enjoy the copyright protection.

Accordingly, the Court granted copyright protection to the additions and contributions made by the editors of SCC. At the same the Court also held that the orders and judgments of the Courts are in public domain and everybody has a right to use and publish them and therefore no copyright can be claimed on the same.

In subsequent cases, the Indian courts followed this approach and completely rejected the plea to protect mere works of compilation under copyright.29 Copyright is conferred on those works which has originated from author and which is not merely a copy of the original work. This does not push the standard of originality expected to a considerably high level, but brings in a subtle balance between ensuring reward for the efforts of an author while also maintaining a reasonable standard in the materials protected under law.

DEVIATION FROM THE DOCTRINE OF SWEAT OF BROW
In the recent times the courts has deviated from the doctrine of Sweat of Brow rather than considering only the skill and labour spent on the work the courts has started to take in to consideration the original thoughts of the author put in the work for considering the same for the copyright protection. n Feist Publications Inc. v. Rural Telephone Service Co. Inc , the United States Supreme Court held that the sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author.

Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. The requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.

The Court further held that no one claim originality as to the facts. This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence.

Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original. Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression.

The Court goes on to hold that the primary objective of copyright is not to reward the labour of authors, but to promote the progress of science and useful arts. To this end, copyright assures authors the right to their original expression but encourages others to build freely upon the ideas and information conveyed by a work. Only the compiler's selection and arrangement may be protected; however, the raw facts may be copied at will.

The Court rejected the doctrine of the "sweat of the brow" as this doctrine had numerous flaws, the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement - the compiler's original contributions - to the facts themselves.

A subsequent compiler was not entitled to take one word of information previously published, but rather had to independently work out the matter for himself, so as to arrive at the same result from the same common sources of Information. "Sweat of the brow" courts thereby eschewed the most fundamental axiom of copyright law that no one may copyright facts or ideas. The "sweat of the brow" doctrine flouted basic copyright principles and it creates a monopoly in public domain materials without the necessary justification of protecting and encouraging the creation of writings by authors.

Similarly, the Supreme Court of India in case of Eastern Book Company v. D.B. Modak held that "collection of material and addition of inputs in the raw text does not give work a flavour of minimum requirement of creativity, as skill and Judgment required to produce the work 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 a copyright is required - Selection and arrangement can be viewed as typical and at best result of the labour, skill and investment of capital lacking even minimal creativity, which does not as a whole display sufficient originality so as to amount to an original work of the author.

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. Inputs put by the Appellants in the copyedited Judgments do not touch the standard of creativity required for the copyright. However inputs and task of paragraph numbering and internal referencing requires skill and Judgment in great measure having a flavour of minimum amount of creativity.

Further putting an input in form of different Judges' opinion shown to have been dissenting or partly dissenting or concurring, etc. requires reading and understanding the questions involved Appellants have a copyright, which nobody can utilize"

The doctrine of Sweat of the Brow which has been an integral part in regards to the protection to a derivative work earlier has now been looked upon from a different perspective wherein the courts has taken into consideration the minimal creativity put in by the creator in regards to the creation of work rather than taking into consideration only labour, skill and investment of capital.

Conclusion:
In copyright law, the doctrine of Sweat of the Brow has undergone significant evolution, particularly in English and Indian legal systems. Initially, this doctrine granted copyright protection based on the effort, skill, and labor expended in creating a work, rather than its originality or creativity. However, recent jurisprudence has shifted towards a more stringent requirement of creativity for copyright protection.

The doctrine was prevalent in English law, as seen in cases like University of London Press v. University Tutorial Press, where the court emphasized the effort and labor put into creating examination papers. The court held that the papers were original as they originated from the examiners, even though similar questions may have been asked by other examiners before. Similarly, in Indian law, the doctrine was followed, as seen in Burlington Home Shopping v. Rajnish Chibber, where a compilation was deemed copyrightable based on the effort put into compiling it.

However, this approach has evolved over time. In the United States, the landmark case of Feist Publications Inc. v. Rural Telephone Service Co. Inc. rejected the Sweat of the Brow doctrine. The court held that to qualify for copyright protection, a work must be original to the author and possess at least some minimal degree of creativity. The court emphasized that copyright is meant to promote the progress of science and the arts by rewarding original expression, not merely effort or labor.

Similarly, in India, the Supreme Court in Eastern Book Company v. D.B. Modak discarded the Sweat of the Brow doctrine. The court held that to establish copyright, a work must display a minimum amount of creativity, not just labor, skill, or investment of capital. The court emphasized that copyright protection is meant to incentivize creative expression, not just the expenditure of effort.

This shift reflects a broader understanding that copyright is not just about rewarding labor but encouraging innovation and creativity. Courts now require a substantive variation, not just a trivial one, for a work to be eligible for copyright protection. This change aligns copyright law more closely with its underlying purpose of promoting progress in science and the arts.

In conclusion, the doctrine of Sweat of the Brow, which once granted copyright protection based on effort and labor, has evolved to require a minimum degree of creativity for a work to be eligible for protection. This shift reflects a recognition that copyright is meant to incentivize and reward creative expression, not just the expenditure of effort.