Analysis Of The Modicum Of Creativity Doctrine Under Copyright Law
- IJLLR Journal
- 7 days ago
- 2 min read
Sayantani Ray, Assistant Professor, School of Law, Chettinad Academy of Research and Education
Saumya Raj, Assistant Professor, KLE Society’s Law College
ABSTRACT
The doctrine of “modicum of creativity” occupies a pivotal yet often under- theorised position within copyright jurisprudence, functioning as the minimum threshold for determining the protectability of creative works. Rooted in the broader requirement of originality, the doctrine seeks to balance the twin objectives of copyright law incentivising creative expression while preserving the public domain. Despite its centrality, the absence of a clear statutory articulation has resulted in interpretative ambiguities and inconsistent judicial applications across jurisdictions.
This paper undertakes a comprehensive doctrinal, comparative, and critical examination of the “modicum of creativity” standard. It traces the conceptual foundations of originality and creativity within copyright law, analysing the historical shift from the “sweat of the brow” approach towards a more substantive creativity-based threshold. Through an engagement with landmark judicial decisions and statutory frameworks, the study highlights how courts have implicitly endorsed a low threshold of creativity while simultaneously grappling with its practical delineation.
The paper further situates the doctrine within a comparative international context, examining divergent approaches adopted by jurisdictions such as the United States and the European Union, as well as the influence of international copyright instruments like the Berne Convention and the TRIPS Agreement. Particular emphasis is placed on the challenges posed by emerging technologies, including artificial intelligence and digital content creation, which increasingly blur traditional notions of authorship and originality.
Critically, the study interrogates the normative and practical implications of maintaining an ambiguous creativity threshold. While a low standard promotes inclusivity and encourages creative participation, it also risks over- protection and the monopolisation of trivial works, thereby constraining access to knowledge and cultural resources. The paper concludes by advocating for greater doctrinal clarity through calibrated judicial reasoning and policy interventions that preserve flexibility without diluting copyright standards. In doing so, it underscores the continued relevance of the “modicum of creativity” doctrine in shaping a balanced and adaptive copyright regime in the digital age.
Keywords: Modicum of Creativity; Originality; Copyright Law; Judicial Interpretation; Comparative Copyright; Public Domain; Artificial Intelligence and Authorship; Creativity Threshold.
