Bare Act publication in the arena of Copyright – will private publishing houses get the protection?

This guest post was written by Astha Mishra and Mayank Chaturvedi both students of  NUSRL Ranchi.


“Ignorantia Legis Neminem Excusat” is legal principle which states, “Ignorance of the [or a] law, which everyone is bound to know, excuses no man”[1] and implementation of the same demands that law should be made assessable to all in a reasonable manner.

Infringement of copyright laws of the government ?

The term ‘work’ as defined under Section 2(y) of Copyright act comprises of ‘literary, dramatic, musical or artistic work; a cinematograph film; and a sound recording.’ Moreover, section 2(k) defines the `government work which would be a work which is made or published by or under the direction or control of, amongst others, any Court, Tribunal or other judicial authority in India. Thus  the legislative work in the form of laws, rules and regulations comes under the government domain and qualifies for Copyright protection.

Thus, Section 17 (d) of the Act states that in case of a government work, Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein, whereas Section 52 is an exception of this general rule. S 52(q) states that reproduction or publication of any matter which has been published in any official Gazette except an Act of the legislature; any Act of the legislature can be published subject to the condition that it is published together with some commentary or some original matter.

Thus the Copyright Act does provide sufficient rights to the private publishing houses to publish the bare act along with the duty that either some commentary or some original matter is added to the legislative act. But this does not abrogate the duty on the part of the government to make the law accessible to all.

Back-drop – Originality

The sine qua non of the copyright is originality.[2] In order a work to qualify as original and thus demand protection of copyright it should be the work of the author, even though it is merely copy- edited.

The term original or originality has not been defined under Copyright Act, 1957 but section 13(1) explicitly mentions that for any literary, dramatic, musical and artistic works, to subsist copyright, it must be original. Thus, we can say that to qualify for copyright protection any work must be the original work of the author, making it an irony since there are no actual parameters to define originality, because of which it has been in controversy in many cases but the Supreme Court of India took a strong hold in the Eastern Book Company case, where the court took a mid way between the traditional doctrine of ‘Sweat of the brow’ and a more rational doctrine of ‘Modicum of creativity’.

Where on one side, the doctrine of ‘sweat of the brow’ tries to protect the true owner based on his ‘labour and skill’ and first applied in the case of Walter v lane[3], where the work of a reporter was merited for copyright protection just because he rendered skill and labour to reproduce the speech. In contrast, the doctrine of Modicum of creativity was first developed in the case of Feist Publication, Inc. v Rural Telephone Serive,[4] which recognized ‘creative originality’ over mere ‘labour, skill and investment of capital’. The US Supreme Court in this case laid down the new test based on the ‘minimal level of intellectual creativity’ to subsist a work as original.

Prior to Eastern Book Company case, Indian courts heavily relied on the doctrine of ‘sweat of the brow’. But in Eastern Book Company case the appellant contented that copy-editing of the raw judgments and providing them with inputs such as headnotes, cross-references, paragraph numbering, verification etc. amounted to ‘original literary work’ and therefore should be protected under section 13 of the Copyright Act.


In the case of CCH Canadian ltd v Law Society of Upper Canada,[5] the Supreme Court of Canada, rather than following the standard practice of sweat of the brow doctrine or the modicum of creativity doctrine, laid down that the doctrine of sweat of the brow is imprecisely inclined towards the creator, providing copyright protection on the basis of the skill and labor as against the originality and on the other hand the doctrine of Modicum of creativity which provides for ‘minimum level of creativity’ implying that the work, as defined under 2(y), must be novel or non-obvious, which predisposes towards patent laws rather than copyright laws.

Therefore the court propounded a new standard of “exercise of skill and judgment” as a middle path to both the doctrine, so that the short comes can be met. Indispensably, the court held that it is not mandatory for a work to be creative in sense that is not novel or non-obvious, but at the same time it should not be the product of merely labour, skill and capital.

Bare Acts protection under the Copyright Act

From the above analysis of the general practice being adopted by the Courts, the author is of the view that certain parts of a Bare Act would qualify for protection. The comments, cases referred, object and reason clauses would definitely qualify for protection. They have been incorporated for the better understanding of the Act by the publisher by using his judgment and skill.  But the footnotes referring to Amendments and Substitution made therein the act might not be protected as the same is obvious, are made by the legislature and are in generic knowledge and could be deployed by any publisher for the sake of making a better and clear understanding of the Act.


Originality is not required to be novel form but the work should not be copied from other work, that is, it should be original.[6] This requirement of originality is very minimal in degree. Thus is the applicant is able to prove a minimal degree of skill being employed to the work then the protection shall be provided under the Act.

[1] Black’s Law Dictionary, 5th Edition, pg. 673.

[2] Feist Publication, Inc. v Rural Telephone Serive, 499 U.S. 340 (1991)

[3] Walter v Lane [1900] AC 539.

[4] Feist Publication, Inc. v Rural Telephone Serive, 499 U.S. 340 (1991)

[5] CCH Canadian ltd v Law Society of Upper Canada, [2004] 1 SCR 339

[6] University of Londeon Press Ltd. v University Tutorial Press Ltd [1916] 2 Ch 601

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