Threshold of Originality - The "sweat of The Brow" Doctrine

The "sweat of The Brow" Doctrine

Some countries grant copyright protection based on how much labour and diligence it took to create a work, rather than or in addition to how original a work is. This is referred to as the "sweat of the brow" doctrine in relation to the idiom, "the sweat of one's brow."

The sweat of the brow doctrine has been recognized at various times in the United Kingdom, Canada, Australia, and elsewhere. The 1900 UK case Walter v. Lane ruled that the copyright of an account of a speech transcribed by a reporter belonged to the newspaper he worked for because of the effort it took to reproduce his spoken words.

Courts in the United States rejected this notion in Feist Publications v. Rural Telephone Service (1991) and Bridgeman Art Library v. Corel Corp. (1999). In these cases, the courts asserted that originality was required for copyright protection. Since the Feist decision, many common law countries have moved towards applying a similar standard. A similar precedent was set in Canada by cases such as Tele-Direct (Publications) Inc. v. American Business Information Inc. (1997), where the court concluded that compilations of data must embody originality and creativity in order to be copyrighted. In March 2012, the European Court of Justice rejected the sweat of the brow doctrine in the case of association football match schedules. They were presumed to be copyrighted by the major football leagues of the United Kingdom due to the skill and labour used in their creation; the leagues had formed Football DataCo to license this property, and had sued multiple outlets for copyright infringement of these schedules. The court ruled that despite the significant amount of effort taken in their preparation, such schedules cannot be protected when their compilation is "dictated by rules or constraints which leave no room for creative freedom."