This article is written by Vedant Saxena from Rajiv Gandhi National University of Law, Punjab. Through the article, the author has described the essential requirements that a literary or artistic work must satisfy to enjoy copyright protection.

Introduction

Creativity is the bedrock of progress. The laws of intellectual property have been designed to promote creativity. They are concerned with the ownership of intangible assets which an individual or a business may be entitled to, with respect to their assets. The laws of intellectual property have played a decisive role in cultural, educational, scientific, and technological advancements. Copyright is a legal term used to describe the rights that creators have over their fictional and artistic works. Works covered by copyright range from books, music, paintings, sculpture, films to computer programs, databases, advertisements, maps, and technical drawings. It is a legal right shaped by the law of a country that grants the inventor of original work partial rights for its use and distribution. This is usually only for a limited time. The exclusive rights are not absolute but limited by limitations and exceptions to copyright law, including fair use. In India, copyright laws are governed by the Indian Copyright Act, 1957. 

Copyright: Important points to note

• Copyright is a form of intellectual property, applicable to certain forms of creative work. Some, but not all jurisdictions require “fixing” copyrighted works in a tangible form. It is often shared among multiple novelists, each of whom holds a set of rights to use or license the work, and who are commonly referred to as rights holders. These rights frequently include reproduction, control over derivative works, distribution, public performance, and “moral rights” such as attribution. 
• Copyrights are considered regional rights, which mean that they do not extend beyond the territory of a specific jurisdiction. Also, copyright laws vary by country. 
• Typically, the duration of a copyright spans the author’s life plus 50 to 100 years (that is, copyright typically expires 50 to 100 years after the author dies, depending on the jurisdiction). Some countries require certain copyright formalities to start copyright, but most recognize copyright in any completed work, without formal registration. Generally, copyright is enforced as a civil matter, though some jurisdictions do apply criminal sections.
• There are two types of rights under copyright- economic rights, which allow the rights owner to derive financial reward from the use of his works by others; and moral rights, which protect the non-economic interests of the author. Most copyright laws state that the rights owner has the economic right to allow or prevent certain uses in relation to a work or, in some cases, to receive remuneration for the use of his work.

The essentials for copyright protection

The idea-expression dichotomy

Novelty is key for obtaining copyright cover. However, a distinction has been drawn out between an ‘idea’ and ‘an expression of the idea’. While an idea alone is ineligible for copyright protection, a novel expression of that idea is eligible. For instance, the films ‘Carrie’ and ‘Matilda’ have similar plots centred around the idea of telekinetic abilities. Another example could be the popular films ‘Taken’ and ‘Finding Nemo’, both of which revolve around the basic plot that the single and protective father goes through a dangerous series of events in search of his lost/ abducted child. The reason for deriving such a distinction is fairly obvious. Ideas are too precious to be copyrighted. Creativity, the very basis of progress, was to reach a standstill if all ideas got copyrighted.

International News Service v. Associated Press

This case involved two United States news agencies that were involved in reporting the events concerning the United States during the Great War. The news reported by the agencies would then be circulated in newspapers throughout the nation. Later on, due to some specific reasons, the INS was banned from reporting on the war. Consequently, INS began accessing AP’s reports through bulletins on notice boards and selling them as their own. AP filed a suit against INS for violating their copyright. Herein, the idea-expression dichotomy went in favour of the defendants, as they had merely lifted the idea, not the way it was expressed. 

Herbert Rosenthal Jewelry Corp. v. Kalpakian

This case is a manifestation of the fact that it is easier said than done. More often than not segregating an expression from the idea becomes a hefty task. For instance, there have also been cases where the expression exists as the very idea itself. In cases where there exist a negligible number of ways an idea can be expressed, the idea ‘swallows’ the expression, i.e., the expression merges into the idea. In this case, the plaintiffs run a business involving the manufacturing and selling of jewellery. One of their products involved a pin in the shape of a bee, encrusted with stones. Later on, the defendants started selling a similar product, and the plaintiffs accused them of infringing their copyright of the concerned product. The court, in deciding the dispute, referred to the idea-expression dichotomy, and eventually ruled in favour of the defendants. The court declared that there was no way where this particular idea of a jewelled bee could be expressed in any other way. Thus, the expression became the idea itself, and since the former can’t be protected, the defendant was free to incorporate the idea into its products.

RG Anand v. Deluxe Films

In this case, the court laid down several guidelines with respect to the idea-expression dichotomy. This case involved the plaintiff being the author of a play namely ‘Hum Hindustani’. In 1954, the defendant reached out to the plaintiff and expressed his desire to make a movie out of the play. The two failed to settle, but later on, the plaintiff realized that the defendant had adapted the play into a movie titled ‘New India’. The former filed a suit, seeking damages and permanent injunction against the latter. The matter went right up to the Supreme Court, where it finally was ruled that the defendant had not violated the plaintiff’s copyright, as the plaintiff had merely sourced the idea, not its expression. Since ideas were not eligible for copyright protection, the defendant’s movie constituted an independent work and not an infringement upon the defendant’s copyright. 

There is no copyright protection in an idea, subject matter, themes, plots, or historical or legendary facts. The protection extends only to the form, manner and arrangement, and expression of the idea by the author of the protected work.

If there are several expressions of a particular idea, some similarities are inevitable. In such cases, it must be determined whether the ‘mode of expression’ of the idea is similar or not. If yes, then the latter is infringing upon the copyright of the former. The Lay-Observer test is the best way to determine copyright infringement. For instance, if an average lay observer were to go through 2 works and be convinced that the overall aesthetics of the works are the same, copyright infringement would exist. 

Question of copyright infringement does not arise when there are two works based on similar themes but the presentation and treatment of the theme are different.

Shamoil Ahmad Khan v. Falguni Shah & Ors.

In this case, the High Court of Bombay discussed the ‘extraction’ concept, which seems an effective way of discerning between an idea and an expression. In this case, the Court also referred to the decision in XYZ Films in addition to the R.G. Anand case and observed that: 

“In general, there is no copyright in the central idea or theme of a story or play, however original it may be; the theme, plot, and storyline of the plaintiff’s work extracted above cannot be called a bare “central” theme or concept in the sense in which the Supreme Court in R.G. Anand and the learned Judge in XYZ Films have meant. As we have seen above, the theme, plot, and storyline quoted above are clearly expressions of the ‘central’ theme or concept. They contain sufficiently developed elements of expression or realization so as to have a life of their own for copyright protection. And these elements are essential or fundamental to the story and are its life and blood. Without them, the story would be robbed of its meaningful content. If they are copied, there is a case of actionable plagiarism.” 

Therefore, it could be concluded that determining copyright infringement is a tedious task, on account of the complicated idea-expression dichotomy. However, by analyzing various judgments over the years, it could be concluded that in order to determine whether a prior work is infringed upon a subsequent work, the following 2 conditions need to be satisfied. Firstly, the plaintiff’s work must be original, and eligible for copyright protection. Secondly, the Lay-Observer test must be exercised in order to determine whether the defendant’s work is substantially similar to the plaintiff’s work. If these conditions are satisfied, copyright infringement exists. 

Originality

The next essential requirement for a work to attain copyright shelter is ‘originality of expression’. According to this essential, the concerned expression of art must not be lifted from any other creation. In simple terms, the work must originate with the author. An important feature to note here is the emphasis on the term ‘copying’. If the creator of the alleged infringing work can prove that either he/she did not have the slightest idea of the prior work, or that the prior work had not been made public, his work would constitute an independent creation eligible for copyright shelter. 

For example, a photographer comes up to the Statue of Unity and captures a shot of it at a particular angle. He goes home and locks up that photo in his cupboard. A few days later, another photographer comes up to the Statue of Unity, and as luck would have it, captures a shot at a similar angle to the former photographer. Later on, on realizing that the latter’s shot bears a striking similarity to his, the former files a suit against the latter accusing him of violating his copyright. But since the defendant could no way have accessed the plaintiff’s shot, his work would successfully be considered ‘an original expression’, not an infringement upon the plaintiff’s rights.

Human element

In Naruto v. Slater, famously known as ‘the monkey selfie incident’, a very basic yet fascinating issue emerged. A wildlife photographer by the name of David Slater positioned his camera near a group of macaque monkeys, in an attempt not to sway them away by his presence. In an interesting turn of events, one of the monkeys came up to the camera, noticed his own face, and started pressing the buttons randomly. Many shots were captured, with the monkey being the architect. The photographer published these shots in the book ‘Wildlife Personalities’. However, these shots have been used elsewhere on many occasions, as it had been declared that no person owns these shots, as the pictures had been taken by an animal. US copyright law does not expressly grant ownership rights to entities other than humans. It would have been an altogether different case, had the photographer embodied a feature in the camera wherein it would have automatically captured shots of the monkeys, since then the very architect of the shots would have been a human.

Conclusion

Indian copyright laws could be considered effective enough to empower creativity and deal with cases of infringement. To meet the ever-increasing challenges, as posed by the changed circumstances and the latest technology, the existing law can be so interpreted that all facets of copyright are adequately covered. This could be achieved by interpreting the laws in ways so as to provide maximum justice, considering all facts and circumstances. However, with the technological sector booming in no bounds, certain departments of the Indian Copyright Act could be amended. The Information Technology Act, 2000 requires a new outlook and orientation, which can be effectively used to meet the challenges posed in this age of information technology. However, the status quo is not alarming and thus a detailed case-by-case study must be taken up.

References 

• https://assets.fenwick.com/legacy/FenwickDocuments/2015-03-17-Copyright-Basics.pdf 

• https://www.mondaq.com/india/copyright/970280/basics-of-copyright-law 

• https://supreme.justia.com/cases/federal/us/248/215/

• https://law.justia.com/cases/federal/appellate-courts/F2/509/64/222704/
• https://law.justia.com/cases/federal/appellate-courts/ca9/16-15469/16-15469-2018-04-23.html#:~:text=Naruto%20v.-,Slater%2C%20No,16%2D15469%20