In this blog post, Nimisha Srivastava, a student of Gujrat National Law University, Gandhinagar, writes about ideas as a subject of copyright and then goes on to explain the breach of confidentiality in terms of ideas.
Ideas have no copyright as it can be only attributed to tangible things. In ‘Nimmer on Copyright’ we clearly find the author’s intention to protect ideas that have not found expression in a tangible form. Quoting from the book, ‘Assuming sometimes the writer has not reduced the story to written form and he orally narrates the entire story, there is no reason to accord the story any less of property status than if the story had been reduced to writing.’[1] Law of confidentiality applies to oral communication also.[2]
The law of confidentiality has found its origins in the right to privacy. Indian courts have developed confidentiality as a tort. Concept of confidence is based on trust between two parties. It is a legal obligation that is enforceable by law. Confidence is a broader right than copyright. The person on the receiving end of the information is under a duty to protect it and not use it for any other purpose. When no contractual relationship exists between the parties, the equity will make liable the party for misuse or unauthorized use or disclosure of information. The law on confidence in India is based on equitable principles. The first right in an unpublished work is to make use of the ideas in the work.
The leading and oldest case law on the subject is Prince Albert v. Strange[3]. In this case, the prince sought to restrain publication of certain etchings and lists of work by Queen Victoria on ground of personal confidence. It was held by the Court of Chancery that confidence is based on good faith. The breach of trust, confidence or contract will entitle plaintiff for an injunction.
In Segaer Ltd. v. Copydex Ltd.[4], Lord Denning gave confidentiality as an equitable remedy. Even if there is no such agreement in place, the other person cannot take unfair advantage of the information received in confidence. There shall be no prejudice caused to such person by making use of it without obtaining his assent. The case was referred in Intex Polymers v. Rajendra Tambe[5] where court said that it is unconscionable for a person who has received information in confidence to use it without the consent of the person whether express or implied.
In Fraser, breach of confidence was claimed in relation to an idea of a television series and which idea was “disclosed orally” and in confidence to the Respondents. The Respondents used that idea to create television series with other actresses. 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.
Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd.[6], the judgment said that if a defendant is proved to have used confidential information, directly or indirectly obtained from a plaintiff, without the consent, express or implied, of the plaintiff, he will be guilty of an infringement of the plaintiff’s rights even if no contract existed between the parties.
The law on the subject says that idea should be novel to be accorded protection. In the case of Anil Gupta, the Delhi High Court while referring to the decision in Talbot v. General Television Corporation Pvt. Ltd.[7] went on to observe that the Law of Trade Secrets by Robert Dean take into consideration that the word novel is sometimes used simply to mean previously unknown but its more common meaning is that of inventiveness, or that of the information is unique, akin to “manner of manufacture”. They further remarked that ‘whether it is described as originality or novelty or ingenuity or otherwise, there must be some product of the human brain which suffices to confer a confidential nature upon the information. In the case, the idea per se with its minimalistic details was sufficient to make the same unique and confidential. In the judgment it was held that:
‘In the modern day, when the small screen has taken over the earlier means of mass communication like radio, idea/concept/script of a broadcaster has wider potentiality of capitalizing revenue and if that idea/concept or script is not protected then in a given case, a person who has conceived an idea to be translated into the reality TV show which could be key to its success with audience then channels with their enormous resources could always be in a better position to take the idea/theme/concept from any author and then develop at their own end and the original author of the concept will be left high and dry, in appropriate cases interlocutory injunction may be issued restraining such breach of confidentiality of the theme, concept or scripts otherwise it would be catastrophic for the TV industry. One has to bear in mind that persons who create an idea/concept or theme which is original, laws must ensure that such like people are rewarded for their labour. A concept for reality show on television was given to the company, which in this case is the respondents. Creator provides raw material to the entertainment industry, themes or concepts, originates from the person who has conceived the same, protection is vital for the functioning of the industry. Otherwise authors of the idea who are individuals, their ideas can be taken by the broadcasting companies or channels owning companies and the persons, who have conceived the same, would be robbed of its labour.’
The law on the subject also says that for an idea to be protected under confidentiality, it must be sufficiently developed so as to be realized as an actuality. This particular law was laid down in case of Talbot, which was referred to by the Hon’ble court in case of Zee Telefilms v. Sundial Communications.[8] A bare or vague idea does not warrant confidence. Ideas in the public domain are not protected by confidentiality.
In Zee Telefims, the idea was developed into an expression in form of concept notes, character sketches, detailed plot of episodes etc. The same was held to be unique and confidential. The Bombay High Court held that the law of confidence is different from law of copyright. It is much broader than copyright as was said by the authority on copyright ‘Copinger and Skone-James on Copyright’. To quote from the said judgment ‘There can be no copyright of ideas or information and it is not infringement of copyright to adopt or appropriate ideas of another or to publish information received from another, provided there is no substantial copying of the form in which those ideas have, or that information has, been previously embodied. But if the ideas or information have been acquired by a person under such circumstances that it would be a breach of good faith to publish them and he has no just case or excuses for doing so, the court may grant injunction against him. ….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..”
Megarry J laid down three necessary conditions for the action of breach of confidence in Coco v. AN Clark (Engineers) Ltd.[9] He said:
‘Where there is information that is confidential, an obligation to maintain that confidence has come into being and the information has been used or disclosed without authority, an action for breach of confidence will lie.’
The three conditions were reiterated in Beyond Dreams Entertainment Pvt. Ltd. & Ors., a recent Bombay High Court judgment where the plaintiff’s concept note and script for a TV show was turned down by the respondents. The respondents further went on to make a new show based on the same concept notes. The High Court enumerated three important elements for breach of confidence.
- First, it must be shown that the information itself is of a confidential nature. Three points are to be considered. I) is the identification of the confidential information itself. II), the information shared must be original and not in the public domain. III), the question is of handing over of the information in circumstances of confidence or in a relationship of confidence between the parties.
- Second, it must be shown that it is communicated or imparted to the Defendant under circumstances which cast an obligation of confidence on him.
- Third, it must be shown that the information shared is actually used or threatened to be used unauthorizedly by the Respondents.
Confidence casts a duty on other party to not to use it without the authority of the author. Bombay high court in another recent decision of Urmi Juvekar Chiang v. Global Broadcasting News Limited[10] laid down the principles for breach of confidentiality:
(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 license or there was threat to use it.
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.”
Footnotes:
[1] Id. at 2-26.
[2] Fraser v. Thames Television 1983 2 ALL ER 415.
[3](1849) 47 ER 1302.
[4] [1967] 2All ER 415.
[5] IPLR 2005 Januray 48.
[6] 1948 65 RPC 203.
[7]1981 R.P.C. 1.
[8] 2003 (5) BomCR 404.
[9] [1969] RPC 41.
[10]2008 (2) BomCR 400.
