Sweat of the Brow Doctrine

IPR Intellectual Property Rights

Compilations and the sweat of the brow doctrine

§ 103 of the Copyright Act allows for the protection of "compilations," provided there is a "creative" or "original" act involved in such a compilation, such as in the selection (deciding which things to include or exclude), and arrangement (how they are shown and in what order).

The protection is limited only to the selection and arrangement, not to the facts themselves, which may be freely copied.

Facts are considered synonymous to "ideas" or "discoveries" under this law and are not copyrightable. By extension, a compilation of uncopyrightable facts is also uncopyrightable.

The Supreme Court decision in Feist v. Rural further made clear the requirements that a compilation be original in its composition, in denying protection to telephone "white pages".

The Feist court rejected what was known as the "sweat of the brow" doctrine, in ruling that no matter how much work was necessary to create a compilation, a non-selective collection of facts ordered in a non-creative way is not subject to copyright protection.

Doctrine of Sweat of the Brow
Hailshree Saksena
SSRN - papers.ssrn.com/sol3/papers.cfm?abstract_id=1398303
May 3, 2009
Abstract: “Sweat Of The Brow” is one of the well known doctrines in Copyright Law. The doctrine protects factual compilations. The rationale behind this doctrine was to award the person who expended his sweat and effort in compiling the facts. No one can misuse and take a gain out of it. The principle of Sweat of the brow doctrine can also be stated in the form that one is not at liberty to avail himself of the labour which the other has been at for the purposes of producing his work that is, in fact, merely to take away the result of another mans labour or in other words, his intellectual property.

But Copyright Act protects original and creative works. And thus this doctrine is in conflict with the core principle of the Copyright Act. It has led to confusion in order to determine the boundaries of the concept of originality.

With the ruling of the Feist Case(1991), this doctrine was totally negated. U.S. Copyright Act allows for the protection of "compilations," only when there is a "creative" or "original" act involved in such a compilation. The application of Feist case was made in case of directories, catalogues, charts , forms and judicial reports etc..

In India, the lacuna in originality is not defined in the Act. India follows Sweat of the Brow doctrine. In the cases like Eastern Book Company v. D.B. Modak(2002), Indian judiciary showed a shift from the sweat of the brow doctrine. But still in case of database protection, this doctrine is practiced by the judiciary. The doctrine of sweat of the brow should be absolutely made void under copyright law, and Copyright Act should protect creativity and originality rather then labour and sweat. Clear and unambiguous clauses shall be added in the Act to describe ‘originality’ and ‘creativity’.

Books, E-Books Great Discounts