Sweat of the brow
Encyclopedia
"Sweat of the brow" is an intellectual property
law doctrine
, chiefly related to copyright
law. According to this doctrine, an author
gains rights through simple diligence during the creation of a work, such as a database, or a directory. Substantial creativity or "originality" is not required.
Under a "sweat of the brow" doctrine, the creator of a copyrighted work, even if it is completely unoriginal, is entitled to have his effort and expense protected, and no one else may use such a work without permission, but must instead recreate the work by independent research or effort. The classic example is a telephone directory
. In a "sweat of the brow" jurisdiction, such a directory may not be copied, but instead a competitor must independently collect the information to issue a competing directory. The same rule generally applies to databases and lists of facts.
Civil law
jurisdictions have traditionally used the similar but not identical concept of droit d'auteur. European law tend to harmonize the protection of Intellectual Property throughout member states and the doctrine gains more influence. A good example is the Databases Directive 96/9/EC - in this Directive, the member states of the EU
are obliged to confer protection on non-original databases, that is on those that embody no creativity, but are a consequence of substantial investment (financial, labour etc.).
idiom
, the sweat of one's brow refers to the effort expended in labor, and the value created thereby. The phrase is famously used in English translations of . The law doctrine takes its name from this idiom.
rejected this doctrine in the 1991 United States Supreme Court case Feist Publications v. Rural Telephone Service
; up until then it had been upheld in a number of US copyright cases.
Under the Feist ruling in the US, mere collections of facts are considered unoriginal and thus not protected by copyright, no matter how much work went into collating them. The arrangement and presentation of a collection may be original, but not if it is "simple and obvious" such as a list in alphabetical or chronological order.
In University of London Press v University Tutorial Press, the question arose as to whether certain mathematics exam papers were original literary works. The exam papers just consisted of conventional maths problems in a conventional manner. The court held that originality does not mean that the work must be an expression of individual thought. The simple fact that the authors drew on a body of knowledge common to mathematicians did not compromise originality. The requirement of originality, it was held, 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.
As such, even though these were the same old maths problems every student is familiar with, and even though there was no creative input, the skill, labour, and judgement of the authors was sufficient to make the papers original literary works.
In Cummins v Bond, a psychic in a trance claimed to have written down what spirits told her, through a process of automatic writing. In court, she accepted that she was not the creative author of the writing. The creative input, had, presumably, come from the spirits. Nonetheless, the court held that she had exercised sufficient labour and skill in translating and transcribing what the spirits told her, so she had a copyright in the resulting literary work.
in order to be copyrightable. In other words, Israeli law does not subscribe to the "sweat of the brow" doctrine. However, the amount of originality required is minimal.
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
law doctrine
Legal doctrine
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows...
, chiefly related to copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
law. According to this doctrine, an author
Author
An author is broadly defined as "the person who originates or gives existence to anything" and that authorship determines responsibility for what is created. Narrowly defined, an author is the originator of any written work.-Legal significance:...
gains rights through simple diligence during the creation of a work, such as a database, or a directory. Substantial creativity or "originality" is not required.
Under a "sweat of the brow" doctrine, the creator of a copyrighted work, even if it is completely unoriginal, is entitled to have his effort and expense protected, and no one else may use such a work without permission, but must instead recreate the work by independent research or effort. The classic example is a telephone directory
Telephone directory
A telephone directory is a listing of telephone subscribers in a geographical area or subscribers to services provided by the organization that publishes the directory...
. In a "sweat of the brow" jurisdiction, such a directory may not be copied, but instead a competitor must independently collect the information to issue a competing directory. The same rule generally applies to databases and lists of facts.
Civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
jurisdictions have traditionally used the similar but not identical concept of droit d'auteur. European law tend to harmonize the protection of Intellectual Property throughout member states and the doctrine gains more influence. A good example is the Databases Directive 96/9/EC - in this Directive, the member states of the EU
Member State of the European Union
A member state of the European Union is a state that is party to treaties of the European Union and has thereby undertaken the privileges and obligations that EU membership entails. Unlike membership of an international organisation, being an EU member state places a country under binding laws in...
are obliged to confer protection on non-original databases, that is on those that embody no creativity, but are a consequence of substantial investment (financial, labour etc.).
Etymology
In a traditional EnglishEnglish language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
idiom
Idiom
Idiom is an expression, word, or phrase that has a figurative meaning that is comprehended in regard to a common use of that expression that is separate from the literal meaning or definition of the words of which it is made...
, the sweat of one's brow refers to the effort expended in labor, and the value created thereby. The phrase is famously used in English translations of . The law doctrine takes its name from this idiom.
US copyright law
The United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
rejected this doctrine in the 1991 United States Supreme Court case Feist Publications v. Rural Telephone Service
Feist Publications v. Rural Telephone Service
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 , commonly called Feist v. Rural, is an important United States Supreme Court case establishing that information alone without a minimum of original creativity cannot be protected by copyright...
; up until then it had been upheld in a number of US copyright cases.
Under the Feist ruling in the US, mere collections of facts are considered unoriginal and thus not protected by copyright, no matter how much work went into collating them. The arrangement and presentation of a collection may be original, but not if it is "simple and obvious" such as a list in alphabetical or chronological order.
UK copyright law
Under the Copyright, Designs and Patents Act 1988, for copyright to subsist in a work, that work must be original. However, courts have not adopted a literal reading of this requirement. For over a hundred years, English courts have held that a significant expenditure of labour is sufficient. The consequence of this is that if A makes a work, in which copyright subsists, and B subsequently adds his skill, judgement and labour, altering the form of A's work, B will potentially have a copyright in the work he produces. This suggests that copyright is not about protecting ideas, because one can acquire a copyright by expending skill, labour, and judgement, but no creativity or inventiveness.Examples
In Walter v Lane (1900) (Pre-CDPA), reporters took shorthand notes of a speech, punctuated them, etc, and published them in the Times Newspaper. The court held that the reporters were authors of the published speech, and, as such, owned a copyright in the published speeches, because of the considerable skill, labour, and judgement they exercised.In University of London Press v University Tutorial Press, the question arose as to whether certain mathematics exam papers were original literary works. The exam papers just consisted of conventional maths problems in a conventional manner. The court held that originality does not mean that the work must be an expression of individual thought. The simple fact that the authors drew on a body of knowledge common to mathematicians did not compromise originality. The requirement of originality, it was held, 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.
As such, even though these were the same old maths problems every student is familiar with, and even though there was no creative input, the skill, labour, and judgement of the authors was sufficient to make the papers original literary works.
In Cummins v Bond, a psychic in a trance claimed to have written down what spirits told her, through a process of automatic writing. In court, she accepted that she was not the creative author of the writing. The creative input, had, presumably, come from the spirits. Nonetheless, the court held that she had exercised sufficient labour and skill in translating and transcribing what the spirits told her, so she had a copyright in the resulting literary work.
Israeli copyright law
Israeli law requires that a work exhibit some degree of originalityThreshold of originality
The threshold of originality is a concept in copyright law that is used to assess whether or not a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not...
in order to be copyrightable. In other words, Israeli law does not subscribe to the "sweat of the brow" doctrine. However, the amount of originality required is minimal.
See also
- Database right
- Labour theory of value
- Sweat equitySweat equitySweat equity is a term that refers to a party's contribution to a project in the form of effort --- as opposed to financial equity, which is a contribution in the form of capital....
- Threshold of originalityThreshold of originalityThe threshold of originality is a concept in copyright law that is used to assess whether or not a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not...