COPYRIGHT

There is no copyright in an idea, or in ideas.

If an author employs a shorthand writer to take down a story which the author is composing,
word for word, in shorthand, and the shorthand writer then transcribes it, and the author then
has it published, the author and not the shorthand writer is the owner of the copyright. A mere
amanuensis does not, by taking down word for word the language of the author, become in
any sense the owner of the copyright.

The property is an ‘intellectual property’ in the sense that it originates in the mind of persons
before it is reduced to material form. However, it is noteworthy that ideas and thoughts are
not protected which merely exist in a man’s brain, as ideas and thoughts are not works under
the copyright law. But once reduced to writing or other material form, the result becomes a
work worthy of protection.

When a person produces something with his skill and labour, it normally belongs to him and
the other person would not be permitted to make a profit out of the skill and labour of the
original author and it is for this reason the Copyright Act, 1957 gives to the authors certain
exclusive rights in relation to the certain work referred in the Act.

Copyright is an incorporeal property in nature.

It is called a negative right which means that the right owner can prevent all others from
copying his work, or doing any other acts which according to copyright law can only be done
by him.

The primary objective of copyright is not to reward the labour of authors, but to promote the
progress of science and useful arts. (Feist Publications Inc. v. Rural Telephone Service Co.
Inc)

The exclusive rights in copyrighted work are limited in time. After expiration of this period,
the work passes into the “public domain”.

As copyright is a creature of statute, these limitations are therefore statutory limitations and
are mainly of three kinds.

1. The first statutory limitation is the limited duration of copyright in a work. The
term of copyright protection is limited to the life of the author and sixty years after his
death. After expiry of the copyright term, the work falls into public domain.

2. The second statutory limitation on the rights of the copyright owner is fair dealing
with his work. Under copyright law, some uses of protected works are free. The free
uses can be made e.g. for private study and research, teaching, criticism, reporting
current events, etc.

3. The third statutory limitation on the rights of copyright owner is grant of

non-voluntary licences in accordance with copyright law. Thus, in some cases the
right owner is not given an absolute right subjecting all uses of the protected work to
 his prior authorisation, but only the right to equitable remuneration for each use. The
non-voluntary licence may either be a compulsory licence or a statutory licence.

The work should qualify under the provisions of Section 13, for the subsistence of copyright.
Although the rights have been referred to as exclusive rights, there are various exceptions to
them which are listed in Section 52.

Donoghue v. Allied Newspapers, Ltd. (1937)

whether the plaintiff is or is not either the sole or the joint owner of the copyright in
these articles, that is to say, in the original articles which appeared in the News of the
World.

It is plain that the particular form of language by which those stories were conveyed was the
language of Mr. Felstead and not that of the plaintiff. Although many of the stories were told
in the form of dialogue, and to some extent Mr. Felstead no doubt tried to reproduce the story
as it was told to him by the plaintiff, nevertheless the particular form of language in which
those adventures or stories were conveyed to the public was the language of Mr. Felstead, and
not the language of Mr. Donoghue.

Mr. Donoghue supplied all the substance of the articles, the articles themselves, and the
information which was in them, were conveyed in language which was the language of Mr.
Felstead, and for which Mr. Donoghue himself was not responsible.

Mr. Donoghue was not the author, or even the joint author, of the articles in the News of the
World.

THE MEANING OF ‘ORIGINAL LITERARY WORK’

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. But the Act does
not require that the expression must be in an original or novel form, but that the work must
not be copied from another work – that it should originate from the author

The word “original” does not in this connection mean that the work must be the expression of
original or inventive thought.

University of London Press, Limited v. University Tutorial Press, Limited (1916)

Facts:- It was made a condition of the appointment of every examiner that any copyright
possessed by him in examination papers prepared by him for the University shall be vested in
the University of London, Later University entered into an agreement with the University of
London Press, Limited, the plaintiff company, by which it was agreed to assign and make
over to the Press Company all such copyright and rights of publication
The defendant company, the University Tutorial Press, Limited, issued a publication in which
were included sixteen out of forty-two matriculation papers of January, 1916. The papers
were not copied from the publication of the University of London Press, Limited, but were
taken from copies of the examination papers supplied by students. On February 24, 1916, the
University of London Press, Limited, commenced this action against the Tutorial Press,
Limited, for infringement of copyright, and, on objection being taken that the plaintiff
company was not entitled to sue, Professor Lodge and Mr. Jackson were, joined as
co-plaintiffs.

Observation:- The title of the plaintiff company depends on the agreement and the
assignment. The agreement alone amounts to a good equitable assignment – Ward, Lock &
Co. v. Long [(1906)

The examination papers are subject-matter of copyright, as “original literary work”, within s.
1, sub-s. 1. “Literary work” includes “compilations”: s. 35, sub-s. 1. The setting of the papers
entailed the exercise of brainwork, memory, and trained judgement, and even the selection of
passage from other authors’ works involved careful consideration, discretion, and choice.
They constituted original literary work:

The examiners were appointed with the condition that the copyright shall vest in the
University, but the examiners had not signed or made an assignment in favour of University.

The papers which they prepared originated from themselves, and were, within the meaning of
the Act, original.

The University had a good title to the copyright because the examiners were in the
employment of the University under a “contract of service” and the papers were composed or
compiled in the course of their employment, within s. 5, sub-s. 1(b): Byrne v. Statist Co.
[(1914)

The Question Papers were held to have copyright which vested in Professors as they were not
in contract of service. There was no effective assignment as stipulation of condition in the
contract cannot be said to be assignment. See s 18-19 of Indian Act. London University had a
right to obtain assignment from holders of copyright.

Eastern Book Company v. D.B. Modak 2008 (SCC case)

ISSUES:-
(1) What shall be the standard of originality in the copy-edited judgments of the Supreme
Court which is a derivative work and what would be required in a derivative work to
treat it the original work of an author and thereby giving a protected right under the
Copyright Act, 1957
(2) Whether the entire version of the copy-edited text of the judgments published in the
appellants’ law report SCC would be entitled for a copyright as an original literary
work, or whether the appellants would be entitled to the copyright in some of the
inputs which have been put in the raw text ?

Section 13 and the other provisions of the Act, there shall be a copyright throughout India in
original literary work, dramatic, musical and artistic works, cinematograph films and sound
recording, subject to the exceptions provided in sub- sections (2) and (3) of Section 13. For
copyright protection, all literary works have to be original as per Section 13 of the Act.

two classes of literary works :

 (a) primary or prior works: These are the literary works not based on existing
subject-matter and, therefore, would be called primary or prior works; and
(b) secondary or derivative works: These are literary works based on existing
subject-matter. Since such works are based on existing subject-matter, they are called
derivative work or secondary work.

According to section 13 of the Copyright Act, 1957, copyright subsists in the following
works: (a) original, literary, dramatic, musical and artistic works; (b) cinematograph films;
and (c) sound recordings. Section 13(a) protects original work whereas section 13(b) and (c)
protect derivative works. It provides for commercial manifestation of original work and the
fields specified therein

Work is defined in Section 2(y) which would be a literary, dramatic, musical or artistic work;
a cinematograph film; and a sound recording

Under Section 2(o), literary work would include computer programmes, tables and
compilations including computer databases.

Section 14(1) enumerates what shall be a copyright which is an exclusive right, subject to the
provisions of the Act, to do or authorize the doing of the acts provided in clauses (i) to (vii) in
respect of a work or any substantial part thereof in the case of a literary, dramatic or musical
work, not being a computer programme.

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. By virtue of this definition, the judgments delivered by the
Supreme Court would be a government work.

Under Section 17(d), the Government shall, in the absence of any agreement to the contrary,
be the first owner of the copyright in a government work. In the absence of any agreement to
the contrary, the government shall be the first owner of the copyright in the judgments of the
Supreme Court, the same being a government work under Section 2(k).

Section 52(1)(q)(iv) provides that the publication of any judgment or order of a court,
tribunal or other judicial authority, unless the reproduction of publication of such judgment or
order is prohibited, would not constitute an infringement of the copyright.

Sweat of the Brow

The originality requirement in derivative work is that it should originate from the author by
application of substantial degree of skill, industry or experience. Precondition to copyright is
that work must be produced independently and not copied from another person. Where a
compilation is produced from the original work, the compilation is more than simply a
re-arranged copyright of original, which is often referred to as skill, judgment and or labour
or capital. The copyright has nothing to do with originality or literary merit.

The courts have only to evaluate whether derivative work is not the end-product of skill,
labour and capital which is trivial or negligible but substantial. The courts need not go into
evaluation of literary merit of derivative work or creativity aspect of the same.
Ladbroke (Football) Ltd. v. William Hill (Football) Ltd., [1964]

It is wrong to consider individual parts of it apart from the whole. For many compilations
have nothing original in their parts, yet the sum total of the compilation may be original. In
such cases the courts have looked to see whether the compilation of the unoriginal material
called for work or skill or expense. If it did, it is entitled to be considered original and to be
protected against those who wish to steal the fruits of the work or skill or expense by copying
it without taking the trouble to compile it themselves.

Designers Guild Ltd. v. Russell Williams (Textiles) Ltd., [2000]

The law of copyright rests on a very clear principle that anyone who by his or her own skill
and labour creates an original work of whatever character shall enjoy an exclusive right to
copy that work.

C. Cunniah & Co. v. Balraj & Co., AIR 1961

What is required is the expenditure of original skill or labour in execution and not originality
of thought.

Rai Toys Industries and Others v. Munir Printing Press, 1982

It was held by the High Court that preparation of tickets and placing them in tables required a
good deal of skill and labour and would thus satisfy the test of being original literary work.

Minimal degree of creativity

Feist Publications Inc. v. Rural Telephone Service Co. Inc

The Court rejected the doctrine of the ‘sweat of the brow’ as this doctrine had numerous
flaws,

Original, as the term is used in copyright, means only that the work was independently
created by the author (as opposed to copied from other works), and that it possesses at least
some minimal degree of creativity. The requisite level of creativity is extremely low; even a
slight amount will suffice.

The distinction is one between creation and discovery: the first person to find and report a
particular fact has not created the fact; he or she has merely discovered its existence.

Factual compilations, on the other hand, may possess the requisite originality. The
compilation author typically chooses which facts to include, in what order to place them, and
how to arrange the collected data so that they may be used effectively by readers. These
choices as to selection and arrangement, so long as they are made independently by the
compiler and entail a minimal degree of creativity, are sufficiently original. Thus, if the
compilation author clothes facts with an original collocation of words, he or she may be able
to claim a copyright in this written expression.

Key Publications, Inc. v. Chinatown Today Publishing Enterprises, Inc.,

There are three requirements for a compilation to qualify for copyright protection :
(1) the collection and assembly of pre-existing data;
(2) selection, co-ordination or arrangement of the data; and
(3) the resulting work that comes into being is original, by virtue of the selection,
coordination or arrangement of the data contained in the work.

Present case:- Copyright has nothing to do with originality or literary merit. Copyrighted
material is that what is created by the author by his own skill, labour and investment of
capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work
which comes into being should be original in the sense that by virtue of selection,
co-ordination or arrangement of pre-existing data contained in the work, a work somewhat
different in character is produced by the author.

The derivative work produced by the author must have some distinguishable features and
flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put
in the judgment would not satisfy the test of copyright of an author.

Although for establishing a copyright, the creativity standard applies is not that something
must be novel or non-obvious, but some amount of creativity in the work to claim a copyright
is required. It does require a minimal degree of creativity.

The High Court has already granted interim relief to the plaintiff-appellants by directing that
though the respondent-defendants shall be entitled to sell their CD-ROMS with the text of the
judgments of the Supreme Court along with their own head notes, editorial notes, if any, they
should not in any way copy the head notes of the plaintiff-appellants; and that the
defendant-respondents shall also not copy the footnotes and editorial notes appearing in the
journal of the plaintiff-appellants.

Urmi Juvekar Chiang v. Global Broadcast News Limited 2008

In substance, the grievance of the Plaintiff against the Defendants, on the basis of which,
interim relief is claimed against them is on two grounds
(a) Breach of Confidentiality by the Defendants.
(b) Infringement of copyright of the Plaintiff.

In relation to reproduction and adaptation in the format of the proposed television programme
created by the Plaintiff titled "Work in Progress", by the Defendants by making the television
programme by title "Summer Showdown" and proposing to broadcast the same on the
CNN-IBN television news channel.

Breach of Confidence

The Division Bench of our High Court in the case of Zee Telefilms Ltd. and Anr. v. Sundial
Communication Pvt. Ltd. and Ors. , 2003(27) PTC 457 (Bom) (DB) on analysing the
decisions on the subject has expounded that the law of breach of confidence is different from
law of copyright. The law of breach of confidence is of breach of trust or confidence-"is a
broader right" than proprietary right of copyright.

Whereas copyright protects material that has been reduced to permanent form, the general
law of confidence may protect either written or oral confidential communication. Copyright
is good against the world generally while confidence operates against those who receive
information or ideas in confidence. Copyright has a fixed statutory time limit which does not
apply to confidential information, though in practice application of confidence usually ceases
when the information or ideas becomes public knowledge. Further the obligation of
confidence rests not only on the original recipient, but also on any person who received the
information with knowledge acquired at the time or subsequently that it was originally given
in confidence.

The principles on which the action of breach of confidence can succeed, have been
culled out as
(i) he (Plaintiff) had to identify clearly what was the information he was relying on;
(ii) he (Plaintiff) had to show that it was handed over in the circumstances of confidence;
(iii) he (Plaintiff) had to show that it was information of the type which could be treated as
confidential; and
(iv) he (Plaintiff) had to show that it was used without licence or there was threat to use it.

CMI Centers for Medical Innovation GMBH and Anr. v. Phytopharm PLC reported in 1999
Fleet Street Reports 235. It is further noted that at interlocutory stage, the Plaintiff does not
have to prove (iii) and (iv) referred to above, as he will at the trial. But the Plaintiff must
address them and show that he has at least seriously arguable case in relation to each of them.

For the purpose of action in breach of confidentiality, it is well established position that a
party can claim confidentiality even in relation to a "concept or idea", unlike in a claim or
action in infringement of copyright -

Fraser v. Thames Television Ltd

The Court held that the Court would prevent person who had received idea expressed "in
oral" or written form from disclosing it for an unlimited period or until that idea becomes
general public knowledge.

The Court will have to ascertain whether there has been reproduction, copy or adaptation of
the work of the Plaintiff or any substantial part thereof. For that, the striking similarities in
the two works will have to be examined

It may be useful to advert to the exposition in Copinger and Skone James on Copyright,
14th edition.
If the idea is worked out in some detail in the plaintiff’s work and the defendant reproduces
the expression of that idea, then there may be an infringement. In such a case, it is not the
idea which has been copied but its detailed expression.

The concept notes as well as the further developed concept note and the production plan, it
cannot be disputed, can be described as literary work of the Plaintiff in relation to which there
was existing copyright in her favour. Reproduction or adaptation of that work in any material
form or any substantial part thereof by the Defendants would clearly attract the action of
infringement of copyright
Present case:- but it is the specific case of the Plaintiff that her idea had found expression in
the form of detailed concept notes and the production plan relating to the programme "Work
in Progress".

Suffice it to observe that the programme which is being telecast by the Defendants is not a
news item but a reality show, which is strikingly comparable with the work of the Plaintiff.

In my opinion, from the materials on record, the Plaintiff has succeeded in making good all
the four criteria for considering grant of ad-interim relief in relation to the action of breach of
confidentiality.

It is apparent that the theme in the Plaintiffs work in material form and substantial part
thereof has been lifted and reproduced and adapted in the work of the Defendants.

In the circumstances, ad-interim relief in terms of prayer clauses (a) and (b) of the Notice of
Motion as prayed for is granted which read thus:

a) infringing the copyright of the Plaintiffs in the original literary work being the
concept note of the television programme Work in Progress, …., without the Plaintiffs
consent…
b) breaching the confidential information imparted by the Plaintiff and contained in the
concept note of the television programme Work in Progress …