This article has been written by Amit Kumar, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws and has been edited by Oishika Banerji (Team Lawsikho). 

It has been published by Rachit Garg.


Copyright, known as the bundle of rights, provides the proprietor of the copyrightable subject-matter an exclusive right over his original works, to use them to earn profit as well as protect them from authorised uses. Any original, not necessarily novel work is protected under this form of intellectual property if the same abides by the conditions laid down by the Copyright Act of 1957 or is falling within the ambit of such legislation. It is ideal to note that in the case of copyright, an idea cannot be safeguarded for it is only the expression that can be protected. Copyright protection ideally according to the mentioned legislation, subsists for a period of 60 years. But, for the same to apply, there are certain tests that need to be taken into consideration. This article is owed to the same. 

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Tests of copyright

As such no test or criteria are given in the Copyright Act, 1957. But, it is the Indian judiciary that has over time taken reference from foreign courts and has also based its reasoning in such a way that the same developed as tests for identifying whether copyright protection will subsist on such matters or not.   

Doctrine of originality

The concept of ‘originality’ as provided under the Copyright Act, 1957 has been introduced to safeguard new work or creation or inventions from that of unauthorised uses, reproduction that has been done without consent or inventions from forgeries, or other unoriginal works. The concept is considered to be the yardstick of the copyright law, which determines the applicability of the same.  According to the doctrine of originality, the work seeking copyright protection has to be of the author’s own intellectual creation and not a copied version of an already published original work. Section 13 (1) of the Act of 1957 uses the word “original” but does not define it. So, work has to be original for getting protection under the Act. 

The yardstick can be presented in the form of two tests, that helps in determining whether the concerned work is original or not, namely,

  1. Non- copying requirement (completely objective test):

As can be understood by the very heading, this part of the originality test basically requires the work seeking copyright protection to not be a copied material, instead objectively be an original one. 

  1. Threshold/degree of originality(varies from court to court):

In case of this part of the originality test, no appropriate explanation can be attached, instead what can be kept open for the readers to understand is that this part of the test rests its identity to be defined by the courts. It is the court of law who is left to determine the degree of originality in the matter seeking copyright. 

The doctrine of Sweat of Brow

The sweat of the brow doctrine is a famous doctrine developed in the English land with the intent to determine whether the subject-matter is eligible for copyright protection or not. Work to be copyrightable requires it to be the result of simple diligence, as per the sweat of the brow doctrine of the United Kingdom. Reliance is put more towards labour and time invested in creating the invention instead of the level of creativity it holds. 

In the case of University of London Press v. University Tutorial Press (1916), the court applied the test and held that it does not require expression to be in original or novel form but what should be abided by is that the work is not a copied one. It held that questions are original work and the mere creation of the same question by another author does not lead to infringement.

USA’s Modicum of creativity doctrine

In the landmark case of Feist Publication Inc v. Rural telephone service Co (1991), the court of law had observed that work that has been applied for copyright protection must be an independent creation and modicum of creativity must be present, which signifies that there must be minimum or sufficient intellectual creativity and judgement in work and degree of creativity need not be high but a minimum level of creativity should be there. This very decision is what can be termed as the doctrine of modicum of creativity. This doctrine finds its place in the United States of America. 

The doctrine of merger in India

When it comes to India, the doctrine of merger deserves an explanation. As a common saying we have previously noted that copyright subsists in expression of ideas and not ideas itself. Taking the same into consideration, the doctrine of merger states whenever there is an expression seeking copyright protection and the expression is same as the idea it has emerged from, or vice-versa, it will be the idea which will be emerging as an expression thereby making the same as non-copyrightable. Thus, if the idea and expression are not distinguishable, then the expression in that case will not be subjected to copyright protection. 

While deciding the case of Eastern Book Company v. D.B. Modak (2007), the Supreme Court of India has discarded the sweat of brow doctrine and has shifted to the doctrine of modicum of creativity thereby allowing addition and contribution made by Supreme Court Cases (SCC) in their judgement, although as such judgments are not copyrightable. Hence flavour of minimum creativity was accepted to create a balance between reward for effort and reasonable standards.

Copyright tests for peculiar works

Computer programming

Computer programming is complex, time taking, and requires creativity and skill. Hence the work of the software engineer needs to be protected, else it would be unprofitable to indulge in such activity if the program languages could simply be copied by someone to produce the same result. Nations have developed their own unique way to cope with the unique issues of computer programming piracy with some states like India providing statutory protection under the Copyright Act, 1957, some provide under the patent law like USA and many others nations under a sui generis system. Though all the elements of software are held to be copyrightable but identifying breach of copyright of highly complex technical diversity is difficult. There are two ways of infringement:

  1. Literal copying of code.
  2. Non-literal copying of code

Test of copyright protection

  1. For literal copying:  appropriation of a substantial part of copyrightable code and way of copying is immaterial

In the case of Data Access Corporation v. Powerflex Services Pty. Ltd (1999), an Australian court held that the critical character of the part copied in deciding the main function of Plaintiff’s programme is not the only criteria in determining a core part of the copyright to be granted. The court emphasised on the originality test to be applied to the parts which were contested for being infringed. The court had also observed that structure, sequencing and the combination of commands and the choice of commands will all be important in deciding originality of work

  1. For non-literal copying: 

Non-literal elements are protected as alternate lines of code, which can be cited to create the same programme structure or obtain similar user interfaces.

  1. Look and feel Test:

This test focuses on the manner in which the content is displayed to the user through the graphical interface, hence, it is based on what is seen by a user over the display (the audio-visual elements) rather than the original algorithm that is to be examined. Same was held by a US court in the case of Broderbund Software Inc. v. Unison World Inc  (1986).

  1. Abstraction, filtration and comparison test: 

In the case of Whelan v. Jaslow (1986), the court of law had opined that the structure, sequence and organisation of the code will fall within the protection of copyright and not merely the verbatim part of the code. 

Further, in the case of Computer Associates International Inc. v. Altai Inc.  (1992), the court of law had overruled Whelan’s case and gave three step mechanism for determining copyright protection, namely,

  1. In the first step, the court should identify a threshold of abstraction to settle the idea-expression dichotomy,
  2. In the second step, the court must restrict the ambit of the expression decided by the abstraction, and
  3. In the third step, the court must equate whatever is left of both programs to determine substantial similarity. 
  4. Extrinsic-Intrinsic test:

In the US case of Brown Bag Software vs Symantec Corp (1992), the court had held that the first stage of the test is the intrinsic one where the Court shall objectively consider every element of work and separate the copyrightable parts. If the applicant fails at this stage as the parts copied are not copyrightable, the scope for the extrinsic test does not arise. 

Fictional character 

Courts have adopted a two-step test to regulate copyright infringement related to fictional characters. This test helps to determine whether the character’s expression is protectable; and, if so, whether or not there is an infringement. The two tests that are followed in the United States are:

  1. Distinct delineation’ test.
  2. Story being told test.

The ‘Distinct Delineation‘ Test

Courts adopted this test in the case of Nichols v. Universal Pictures Corp (1930), where the court had opined that the fictional characters are under the ambit of copyright protection if they were distinctly delineated. This delineation test is a two-steps test, which at first checks whether the previous character’s expression is sufficiently delineated to fall under ambit of copyright protection, and then in the deliberate stage assess whether the infringing fictional character’s expression is sufficiently similarity with previous character

The ‘Story Being‘ Told Test

This test was adopted in the Warner Bros. case., where the court held that Warner Bros. had its exclusive copyright on their book (even from the authorship), but the author was merely striving to protect his right to use his work. It was held that the original author reserved his right to use fictional characters in other works.  


As we come to the end of this article, it is ideal to note that every copyright test has its own unique trait and the same cannot be compared with one another. Each test comes with its own set of guidelines but what lies common is the purpose behind all such tests which is to determine whether a work will be subjected to copyright protection or not and to also look after the fact that no rights of the original author is prejudiced by any immoral activities that is detrimental to the very element of creativity and innovation. 



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