Unit II: Copyright

[1] Basic Principles of Copyright

[1.1] Idea v Expression Debate

There is no copyright in ideas, schemes, systems or method. Copyright is

con- fined only to the subject. A copyright is not contained in an idea. The
same idea can be used by various persons in different forms. Copyright is
contained in the original expression of that idea. It is, therefore, the
expression of thought that is entitled to protection. It would depend upon
the frame of the product. It is, therefore, the thought that is sought to be
portrayed or conveyed which carries a copyright and not the original
idea.

In Shipman v. Radio Pictures Inc., while holding that an idea cannot be

the subject of copyright, great stress was laid on the impression which
the audience forms after seeing the copy. The court concluded that it was
the idea or impression conveyed to the audience which was the deter-
mining factor. From this case stand the modern law of copyright cases,
with the result that it is now held that ideas are not copyrightable but
that sequence of events is; the identity of impression must be capable of
sensory perception by the audience.

The Supreme Court in R.G. Anand v. Delux Films discussed at length the
question of copyright in ideas. The dispute in the case centred around the
similarity between a play and a film. The basic similarities were the two
aspects of provincialism, evils of a caste ridden society, and the evils of
dowry. The court came to the conclusion that the number of similarities
by themselves are not sufficient to raise an inference of colourable
imitation. The similarities are trivial and touch insignificant points and do
not appear to be of substantial nature. The central idea of the play, viz.
provincialism is the subject-matter of the film along with other ideas also.
But it was held that a mere idea cannot be the subject-matter of
copyright.

In Navitaire Inc. v. Easyjet Airline Co. concluded that it is not an

infringement of the copyright in a computer program to replicate its
functions without copying its source code or design. The keywords,
syntax, commands and combinations of commands, options, defaults and
iterations consist of words, figures or mathematical concepts which,
considered in isolation, are not, as such, an intellectual creation of the
author of the computer program. It is only through the choice, sequence
and combination of those words, figures or mathematical concepts that
the author may express his creativity in an original manner and achieve a
result, namely the user-manual for the computer program, which is an
intellectual creation.

[1.2] Can Facts/History be Copyrighted?

It is a well-accepted principle of copyright law that there is no copyright

in the facts per se, as the facts are not created nor have they originated
with the author of any work which embodies these facts. A copyright is
not contained in an idea. The same idea can be used by various persons
in different forms. Copyright is contained in the original expression of
that idea. It is, therefore, the expression of thought that is entitled to
protection. It would depend upon the frame of the product. It is,
therefore, the thought that is sought to be portrayed or conveyed which
carries a copyright and not the original idea.

In Anand Patwardhan v. Directorate General of Doordarshan“, the plaintiff

is a documentary film-maker. The plaintiff had made a documentary film
“Waves of Revolution” in 1975. Defendant made a documentary film “26
June 1975” in 2003. The suit film is about the Bihar Movement led by Jay
Prakash Narayan, a freedom fighter and a revolutionary depicting the
students’ revolt in Bihar, stated to have been repressed by the
declaration of Emergency in 1975. The impugned film shows in a
diametrically different perspective, the persons and their actions before
and at the time of the declaration of Emergency. The plain- tiff claimed
that he had copyright in the suit film, which was breached and infringed
because various extracts contained in these incidents were lifted from
the suit film and inserted in the impugned film without the plaintiff's
permission or without any payment or any credit offered to the plaintiff
and without his knowledge. In this case, the original idea is the Bihar
Movement led by the late Jay Prakash Narayan. There is no copy- right in
that idea. Anyone can portray the said idea in any work, including a
cinematograph film. Once it is portrayed, be it by way of a film, the
specific cinematograph shots of that film would have a copyright. That
frame or image so portrayed of the idea of the Bihar Movement would,
therefore, have a copyright. Portraying the Bihar Movement would itself
not tantamount to breach of copyright. The idea may be taken from any
source, but once that idea, so researched, is meant for use and
expression, it would require to be used and expressed in any mode
chosen by that author himself. That mode of expression of that idea
cannot be verbatim copied by taking shots or stills of the film containing
that idea. Hence, whilst the idea is not unique to the author, the image
portrayed or the expression made is unique to the author.

In Navitaire Inc. v. Easyjet Airline Co. concluded that it is not an

infringement of the copyright in a computer program to replicate its
functions without copying its source code or design. The keywords,
syntax, commands and combinations of commands, options, defaults and
iterations consist of words, figures or mathematical concepts which,
considered in isolation, are not, as such, an intellectual creation of the
author of the computer program. It is only through the choice, sequence
and combination of those words, figures or mathematical concepts that
the author may express his creativity in an original manner and achieve a
result, namely the user-manual for the computer program, which is an
intellectual creation.

[1.3] Whether research is copyrightable?

In Miller v. Universal City Studios Inc., the question was whether a

television movie dramatizing the kidnapping of a college aged daughter
of a wealthy land developer infringed the copyright in a book that
depicted the unsuccessful ransom attempt. The girl was buried alive in a
plywood and fiberglass capsule and was on crude life support system for
five days. Miller wrote the book ‘83 Hours Till Dawn’ after collaborating
with the victim. The book was copyrighted along with a condensed
version in the Readers Digest. Universal City Studio’s producer-_read the
condensed version and commissioned a script writer to write a
screenplay. Though negotiations went on for purchase of movie right of
‘83 Hours till Dawn’, it did not materialise and the movie was completed
and aired as an ABC Movie of the Week, “The Longest Night”. Miller
sued for copyright infringement and claimed that the movie had utilised
substantial research work of Miller, which could be found only in his
book and not in any other public documents. The legal question
confronted by the court was whether research was copyrightable. The
court concluded that research is not copyrightable.

[1.4] Doctrine of merger

The doctrine of merger posits that where the idea and expression are
intrinsically connected, and the expression is indistinguishable from the
idea, copyright protection cannot be granted.

The decision in Herbert Rosenthal Jewelry Corpn. v. Kalpakian is

illustrative in this regard. In that case the plaintiffs sued the defendants
asking them to refrain from manufacturing bee shaped jewel pins. The
court held that the bee shaped jewel was an idea that anyone was free to
copy, the expression of which could be possible only in a few ways,
therefore, no copyright could subsist in it.

[2] Originality

[2.1] Meaning of originality

The sine qua non for statutory copyright protection to a literary,

dramatic, musical and artistic work under any legal system is that the
work must be 'original'. But no copyright law, whether national or
international, has provided any sort of definition or meaning as to what
the term 'original' in the context of the subject means.

Section 13, Copyright Act, 1957 states that only original literary, artistic,
dramatic and musical works are subject-matter of copyright. The word
original does not mean that the work must be the expression of original
or inventive thought. Copyright Acts are not concerned with the
originality of ideas, but with the expression of thought, and in the case of
literary work, with the expression of thought in print or writing. The
originality which is required relates to the expression of the thought. In
deciding whether a work in the nature of a compilation is original, it is
wrong to consider individual parts of it apart from the whole. Many
compilations have nothing original in their parts, yet the sum total of the
compilation may be original.

University of London Press Ltd. v. University Tutorial Press Ltd. 1 is the

most cited judgment regarding originality. In Agarwala Publishing House
v. Board of High School and Intermediate Education, the question involved
was whether question papers are original literary work and come within
the purview of Section 13, Copyright Act, 1957. It was held that the
original literary works referred to in Section 13, Copyright Act, 1957 are
not confined to the works of literature as commonly under- stood. It
would include all works expressed in writing, whether they have any
literary merits or not. The court further held that the word original used
in Section 13 does not imply any originality of ideas but merely means
that the work in question should not be copied from some other work but
should originate in the author, being the product of his labour and skill.

[2.2] Test for Originality

Section 13(1) of the Indian Copyright Act 1957 states that copyright
subsists in "original literary, dramatic, musical and artistic works."
However, the Act fails to give any definition or test to determine
originality of a work. This leaves the court with the duty to decide the

1
https://www.theipmatters.com/post/university-of-london-press-v-university-tutorial-press
amount originality required for a work to claim copyright protection. Two
tests are to be followed to decide the "Originality" of a work: -

1. Non- copying requirement (completely objective test)

2. Threshold/Degree of originality (varies from court to court)

There are different doctrines used in different jurisdictions of law, which

are analysed following: -

UK's Sweat of the brow doctrine

According to this doctrine, an author gains rights through simple

diligence during the creation of a work. The "sweat of the brow" doctrine
relies entirely on the skill and labour of the author, rendering the
requirement of "creativity" in a work nearly redundant. This doctrine was
first adopted in the UK in 1900 in the case of Walter v Lane, where an
oral speech was reproduced verbatim in a newspaper report and the
question was whether such verbatim reproduction would give rise to
copyright in the work. Court held that the work has copyright protection.

Sweat of the brow doctrine conferred copyright on works merely because

time, energy, skill and labour was expended. In University of London
Press Ltd. v. University Tutorial Press Ltd., the court formulated the
“sweat of the brow” doctrine to scrutinise whether a work was original or
not. The issue was whether examination papers were the subject of
copyright protection. Prof Lodge and Mr Jackson proved that they had
thought out the questions which they set, and that they made notes or
memoranda for future questions and drew on those notes for the pur-
poses of the questions which they set. The papers which they prepared
originated from themselves, and were, within the meaning of the Act,
original. The court emphasised that the aesthetic content of the work, or
its artistic appeal was irrelevant, so long as the author or creator was
able to show that some effort had been put in to create it.
The underlying notion was that copyright was a reward for the hard work
that went into compiling facts.

USA's Modicum of creativity doctrine

USA has the oldest and the most developed Copyright laws in the
world. The courts have given importance to both the creative and
subjective contribution of the authors since the late 17th
century. In Feist Publications, Inc. v. Rural telephone Service Co.
case, the US Supreme Court totally negated this doctrine and
held that in order to be original a work must not only have been
the product of independent creation, but it must also exhibit a
"modicum of creativity". This doctrine stipulates that originality
subsists in a work where a sufficient amount of intellectual
creativity and judgment has gone into the creation of that work.
The standard of creativity need not be high but a minimum level
of creativity should be there for copyright protection. The major
question of law was whether a compilation like that of a
telephone directory is protected under the Copyright law? The
court held that the facts like names, addresses etc are not
copyrightable, but compilations of facts are copyrightable. This is
majorly owing to the unique way of expression by way of
arrangement and if it possesses at least some minimal degree of
creativity, it will be copyrightable. It was held that Rural’s white
pages, limited to basic subscriber information and arranged
alphabetically, fall short of the mark. The Court held that Rural's
directory displayed a lack of requisite standards for copyright
protection as it was just a compilation of data without any
minimum creativity, which was a requirement for copyright
protection. Hence, Rural's case was dismissed.
Doctrine of Merger

India strongly followed the doctrine of 'sweat of the brow' for a

considerably long time. However, the standard of 'originality' followed in
India is not as low as the standard followed in England. In Eastern Book
Company v. D.B. Modak, where the Supreme Court discarded the 'Sweat
of the Brow' doctrine and shifted to a 'Modicum of creativity' approach as
followed in the US. The dispute is relating to copyright ability of
judgements. The notion of "flavour of minimum requirement of creativity"
was introduced in this case. The Court granted copyright protection to
the additions and contributions made by the editors of SCC. At the same
the Court also held that the orders and judgments of the Courts are in
public domain and everybody has a right to use and publish them and
therefore no copyright can be claimed on the same. The Supreme Court
in Eastern Book Company has held that collection of material and
addition of inputs in the raw text ordinarily does not give work a flavour
of minimal requirement of creativity, as skill and judgment required to
produce the work are trivial. To establish copy- right, the creativity
standard applied is not that something must be novel or non-obvious, but
some amount of creativity in the work to claim copyright is required. In
that case, selection and arrangement was viewed as typical and at best
result of labour, skill and investment of capital, lacking even minimal
creativity, which did not as a whole display sufficient originality so as to
amount to an original work of the author. The court held that out of the
27 inputs”’ made by the publisher 3 inputs satisfied the test of minimal
creativity, namely, (1) segregating the existing paragraphs in the original
text by breaking them into separate paragraphs; (2) adding internal
paragraph numbering within a judgment after providing uniform
paragraph numbering to the multiple judgments; and (3) indicating in the
judgment the judges who have dissented or concurred by introducing
phrases like “concurring”, “partly concurring”, “partly dissenting”,
“dissenting”, “supplementing”, “majority expressing no opinion”, etc.
These inputs had to be viewed differently. After recording a finding that
these inputs required knowledge, sound judgment and legal skill besides
requiring extensive reading, careful study of the subject and exercise of
judgment, etc. the court held that in these inputs the publisher of SCC
had a copyright and nobody was permitted to utilise the same.”

Cinematograph Film

Any work of visual recording now qualifies as a cinematograph film. The

Supreme Court in Indian Performing Right Society Ltd. v. Eastern Indian
Motion Pictures Assn. held that the composer of the musical work, or its
author do not possess any rights in the works once those rights are
assigned in favour of the producer of a cinematograph film. Sound
recordings, which are also part of the cinematographic film, is owned by
the producer of the film. However, the copyright which is vested in the
cinematograph film and its owner is qua that film only and not the
underlying works. In other words, the copyright of the owner of the
cinematograph film is restricted to the “said film” and all other rights are
retained by the author. the composer of the lyric, i.e. the owner of the
underlying work retains the right to perform it in public otherwise than
as part of the cinematograph film.

In terms of provisions of Section 17(b) of the Act, where a producer

commissions an author to compose an underlying musical or literary
work to be incorporated in a film (unless there is a contract where the
author has retained his copyright in the underlying works so composed);
and 2) in terms of provisions of Section 17(c) of the Act, where a
producer employs an author under a “contract of service” (where there is
a master—servant relationship); it is the producer of the cinematograph
film who becomes the first owner of copyright in the underlying work and
not the author of the underlying work, in terms of provisions of Section
17 of the Act.
A new proviso is added to Section 17 by the Amendment in 2012 adding a
proviso which provides that when a work is incorporated in a
cinematograph film, the ownership of such work reverts back to the
author even when such work was commissioned or was created under
employment. The provision does not apply to works incorporated in a
sound recording alone. The proviso reads as under: Provided that in case
of any work incorporated in a cinematograph work, nothing contained in
clauses (b) and (c) shall affect the right of the author in the work referred
to in clause (a) of sub-section (1) of Section 13; The effect of the proviso
is that the author of the underlying work in a cinematograph film retains
all rights provided for in Section 13(1)(a), Copyright Act.

“Author” means, —

(i) in relation to a literary or dramatic work, the author of the work;

(11) in relation to a musical work, the composer.

The film producer has the sole right to exercise what is his entitlement
under Section 14(1)(c) qua film, but he cannot trench on the composer’s
copyright which he does only if the “music” is performed or produced or
reproduced separately, in violation of Section 14(1)(a). For instance, a
film may be caused to be exhibited as a film but the pieces of music
cannot be picked out of the soundtrack and played in the cinema or other
theatre. To do that is the privilege of the composer and that right of his is
not drowned in the film copyright. Anywhere, in a restaurant or
aeroplane or radio station or cinema theatre; if a music is played, there
comes into play the copy- right of the composer.

Owner of employed Work