This article is written by Nisha Modak, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.com. Here she discusses “Copyright Infringement for books written on the same topic.”

Introduction

Books are a treasure trove of wonders and mysteries. They transport the reader to a new realm, and enable him to gain new experiences. The words penned down allow the reader to understand the perspective of the author, and hence the reader and author together undertake a wondrous journey. The author tirelessly explores various themes and topics, creates characters and gives them a real persona, and strives to give the reader a good experience. Since the author invests a large amount of time and resources, it was recognized that he should be allowed to have a claim over his carefully nurtured work. 

Intellectual property is the term used for all works that generate from an innovative mind, in which a person’s thinking, reasoning, creative and analytical skills are put to use. Writing a book entails use of the author’s intellect, as well as a lot of careful thought and laborious efforts, and it squarely fits in the definition of intellectual property. Thus the law seeks to give a statutory protection to this intangible property of the author.

In India, the Copyright Act, 1957 (hereinafter referred to as the ‘Act’) lays down the provisions by virtue of which the interests of the author are secured. According to Section 13of the Act, the author of an original literary work shall be eligible for copyright protection. This protection is exclusive, and guarantees that only the author will be legally entitled to publish, reproduce, circulate and distribute his work to the public, or make any adaption of the books. The copyright also empowers the author to restrict a third party from copying his work and exploiting the rewards. 

Infringement of copyright

Infringement is regarded as one of the biggest threats towards safeguarding the interests of the owner of a copyright. In simple terms, it may be defined as an act of usurping the rights conferred to someone else, with respect to the use and exploitation of the intellectual property. Infringement has been elaborated upon in Section 51of the Act. As per this section, the following acts carried out by a person, without the consent of the copyright holder shall amount to infringement:

• Any act, the right for which has been exclusively granted to the copyright holder.
• Distribution or exhibition the copyrighted work.
• Permitting the work to be used for profits in any public place.

Rights such as publication, distribution, reproduction, and adaptation etc. of the copyright are statutorily granted to the owner and if a third party engages in these acts, it amounts to infringement.

Subsequently, in Section 52, the Act also provides exceptions to the general rules of infringement. It protects certain acts from being brought under the purview of the term ‘infringement’. These are:

• Fair dealing of the work for research, education or constructive criticism.
• Fair dealing of the work in a newspaper or magazine.
• Reproduction of the work for a judicial proceeding, or making a certified copy of the same in accordance with the law in force.

Thus, ‘fair use’ is the most widely adopted defense in cases of infringement, as it allows for work to be copied if the intended use of it is fair and for public good, without malicious intent towards the interests of the copyright holder.

Nuances of infringement, in case of books

Based on the above stated explanation of infringement given under the Act, it may be inferred that if a book is copied, and converted into a new literary work, it will be an infringement of the copyright of the author of the original book. However, the practical application of these provisions is a tricky area, as there is no straight jacket formula to determine what constitutes the ‘copying’ of a book. In an act of alleged infringement, it can either be the theme of a book which is copied, which is the ‘idea’ of the book, or it could be that the manner in which it is presented is copied, which constitutes the ‘expression’. Ideas and their expression are the fundamental components of a book. A pertinent question thus arises in this situation, as to whether while granting a copyright for a book, the idea is protected or its expression.

This question has been pondered upon by various courts, and it is now established that copyright can only be obtained for the expression, and not the idea. The reasoning behind this was that if copyright is granted for every idea, it would bring the creative world to a standstill. The same idea can be expressed and put forth in a variety of unique ways, and hence granting rights over an idea would curb the imaginative discretion of authors. Also, there can be no valid reasoning behind granting a copyright on an idea, since an idea can strike anyone in a source of inspiration, and it cannot be said to be the brainchild of any singular individual.

Though there is a lack of clear statutory provisions with respect to the determination of copyrightable materials in a book, courts have relied upon certain doctrines to act as guidelines, in order to determine what constitutes infringement. The first is the ‘Sweat of Brow’ doctrine, according to which the simple act of putting in efforts and investing time towards the work makes the author eligible to gain the rights arising from it. This doctrine first originated in UK in the case of Walter vs. Lane, and it dismisses the notion that the work must be creative or original in order to be copyrightable. In contrast to this is the ‘Modicum of Creativity’ doctrine, which evolved in the US supreme Court in the case of Feist Publications, Inc. vs. Rural Telephone Service Co. This doctrine, as the name suggests, lays down that for a work to be copyrightable, it must possess a certain and minimum degree of creativity. Hence an author cannot claim a copyright simply by putting in labor and applying skills to a literary work, without using any intellectual prowess towards making it new and creative. Courts in India initially applied the ‘Sweat of Brow’ doctrine, however, as the understanding related to aspects of copyright infringement became more sophisticated, they rightly made a switch to the latter doctrine. 

Cases

The question of infringement in cases of books written on the same topic, has been raised before the judiciary time and again. Peculiar to the facts of each case, the judiciary has decided upon the matters, and tried to give us some clarity on this ambiguous issue. Some of these cases have been elaborated hereunder: 

• Gopal Das vs. Jagannath Prasad & Anr – Allahabad High Court

Facts: This was an appeal petition. The original Plaintiff and Defendant both wrote books based on the same theme. The Defendant published his book 3 years after the Plaintiff. The main contention raised by the Plaintiff was that since his work had been published prior to that of the Defendant, the Defendant had access to the original work, and hence he was accused of infringing the copyright therein. There was a great degree of similarity in both the books, and the Defendant attempted to explain this on the grounds that both works had been inspired by and compiled from the same sources. He tried to establish that only the idea was the same in both the works, and ideas cannot be brought under the ambit of copyright protection. 

Decision of the Court: The Court delved further into the prima facie similarities in both the books, and upon deeper inspection found that not just the idea, but the expression had also been replicated in the Defendant’s work. It was brought forth how the lay out, arrangement and sequence of text in the original work was the same as used in the Defendant’s work. Thus it became evident that this was a case where not just the idea, but the expression of the idea had been copied, and hence the Court upheld the decision of the Trial Court, which held the Defendant guilty of copyright infringement and ordered him to pay damages.

• Macmillan And Company Ltd. vs. K. and J. Cooper – Bombay High Court

Facts: This was an appeal petition in which the Plaintiff was the author of a book, which was based on Sir North’s translation of Plutarch’s Life of Alexander. The Defendant, which was a publishing house, subsequently published a book on the same theme. A suit was thus filed for an injunction against the Defendant’s book and for damages. The Plaintiff’s work contained a few disjoined passages from Sir North’s work which were strung together to make a full continuous storyline, and also contained notes written by the Plaintiff. These notes, along with some other content were copied in the subsequent work. The main contention during the suit was whether the Plaintiff was entitled to a copyright in his work, because only then would the question of infringement by the Defendant arise. 

Decision of the Court: The Court appropriately interpreted the provisions of the Act and held that though the Plaintiff had used Sir North’s work in which no copyright could exist, he had also used his own skills and intellect to add content, which made his work original. It was also recognized that he had sole rights over the notes written by him in his work. Thus the Court held that he was entitled to a copyright for those parts of the book which stemmed from his own creativity, and the copying of those parts by the Defendant amounted to infringement. The Court amended the order of the Trial Court by specifying the parts of the original work in which copyright subsists. 

• Chancellor Masters & Scholars vs. Narendra Publishing House – Delhi High Court

Facts: The Plaintiff had published a mathematics textbook for school students, following which the Defendant published their own mathematics guide book. The Plaintiff sought to restrain the distribution of the guide book on the grounds that it was a replication of their work, and that they had a copyright in it since the questions, answers, explanations etc. given in their book were original. The Defendant pled that this case fell under the defense of ‘fair use’ as given in the Act.

Decision of the Court: While deciding upon the merits of this case, the Court looked into the aspect of whether the purpose served by both the works was the same. While the Plaintiff’s work contained aspects such as theory explanations which were absent in the Defendant’s work, the Defendant provided a step by step description of how to arrive at the answers to the questions, which was not given in the Plaintiff’s work. Since the purpose and manner in which both the works were to be used were starkly different, the Court held that the Defendant’s work was ‘transformative’ and cannot be said to be a replication of the Plaintiff’s work. Thus it was held that there was no infringement of copyright. 

• E.M. Forster & Ors. vs. A.N. Parasuram – Madras High Court

Facts: This was an appeal from a judgment pronounced by the Trial Court, wherein it held that the alleged infringement of copyright in the original work did not occur. The Plaintiff was the author of a book which, subsequent to its publication, was declared as a text book to be used for the matriculation exam. The Defendant then published a guide book which offered a simplified understanding of the book for the students. The Plaintiff then sued the Defendant for infringing his copyright, by replicating aspects of his book.

Decision of the Court: The Court minutely observed both the books, and thus it came to light that though the Defendant had used certain parts of the Plaintiff’s work, he had added several new aspects which were his own interpretation and explanation of the text of the book, which in essence made his book fundamentally different from the original work. His work was held to be a result of his own creative thinking. The Court remarked that copyright protection cannot be used as a guise for curbing all new literary works from being created, and hence upheld the decision of the Trial Court. 

Conclusion

As is evident from the cases above, the laws relating to copyright and its protection are dynamic, and are applied with specific reference to the facts of each case. The Courts strive to declare a fair judgment in each case, while maintaining the delicate balance between protecting one’s copyright and allowing creativity of another to bloom. 

References

1. https://www.wipo.int/edocs/lexdocs/laws/en/in/in122en.pdf.
2. https://www.wipo.int/edocs/lexdocs/laws/en/in/in122en.pdf.
3. https://www.wipo.int/edocs/lexdocs/laws/en/in/in122en.pdf.
4. Evolved through the cases of: a) RG Anand v. Deluxe Films and b) Mansoob Haider v. Yashraj Films.
5. AIR 1938 All 266.
6. (1924) 26 BOMLR 292.
7. [IA 9823/2005, 51/2006 and 647/2006 in CS(OS) 1656/2005].
8. (1964) 1 MLJ 431.

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