Copyright and Copyright Infringement – Indian Law

Jojy George Koduvath

Abstract

  • Copyright is a Statutory Right (governed under The Copyright Act, 1957)
  • No Copyright in an Idea or Theme of Work;
  • Violation of Copyright Only If –
    • It makes an Unmistakable Impression – Later work is a copy of the Original
    • There is Fundamental or Substantial Similarity
    • Reproduction in any Material Form (Exact copy, or Substantially a Copy).
  • A literal imitation of the copyrighted work with some variations here and there would amount to a violation of the copyright.

R.G. Anand v. Delux Films— Foundational Indian Decision —AIR 1978 SC 1613; (1978) 4 SCC 118

R.G. Anand v. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118 is the foundational Indian decision on copyright infringement.

  • This decision
    • .(i) dealt with the dichotomy, ‘Idea v. Expression’ and
    • (ii) laid down – ‘Test of Substantial Similarity’

Facts in a Nutshell

  • The appellant had written a play in Hindi.
  • Film director, produced a motion picture a few years after the appellant’s play was published.
  • The appellant complained that the film was based entirely on his play and sued for damages on account of infringement of copyright.
  • The action was dismissed.
  • The decree was affirmed by the High Court, observing that there could be no copyright in the theme of the work.

In such a context, it is held – the presentation and treatment of the subsequent work were different.

Law Laid Down In R.G. Anand V. M/S. Delux Films

R.G. Anand v. M/s. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118, held as under:

  • “46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:
  • .  1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work.
  • 2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendants work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
  • 3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to seeing the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
  • 4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
  • 5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.
  • 6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.
  • 7. Where however the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, a wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.” (Quoted in Academy of General Edu. , Manipal v. B. Malini Mallya, AIR 2009 SC1982; 2009-4 SCC 256)

Eastern Book Company v. D.B. Modak

Eastern Book Company v. D.B. Modak,  (2008) 1 SCC 1, is another important decision on this subject. It is held in this case as under:

  • “57. The Copyright Act is not concerned with the original idea but with the expression of thought. 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, coordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author. On the face of the provisions of the Copyright Act, 1957, we think that the principle laid down by the Canadian Court would be applicable in copyright of the judgments of the Apex Court. We make it clear that the decision of ours would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments. To claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non-obvious, but at the same time it is not a product of merely labour and capital. 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.” (Quoted in Academy of General Edu. , Manipal v. B. Malini Mallya, AIR 2009 SC1982; 2009-4 SCC 256)

The Dichotomy: ‘Idea v. Expression’ : UK and US Decisions

UK and US courts recognized this dichotomy as fundamental to the doctrine of copyright. In Hollinrake vs. Truswell (1894) 3 Ch.420, Lindley, L.J. expressed it as under:

  • “Copyright …………. does not extend to ideas, or schemes, or systems, or methods; it is confined to their expression; and if their expression is not copied the copyright is not infringed.” (Quoted in: Shamoil Ahmad Khan v. Falguni Shah, 2020-4 AllMR 555).

This maxim has been often repeated in later copyright cases and finds expression even in the celebrated case of R.G. Anand vs. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118.

The US Supreme Court in Mazer vs. stein (1954) US SC 36 put the matter as under:

  • “Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea – not the idea itself.” (Quoted in: Shamoil Ahmad Khan v. Falguni Shah, 2020-4 AllMR 555).

The US case of Nichols v. Universal Pictures Corp., 45 F.2d 119 (1930), said it in the following words :

  • “Upon any work, and especially upon a play, a great number of patterns of increasing generality fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended.”

Copyright is a Statutory Right

Copyright is a statutory right.

  • Note: Passing off (protection of goodwill and reputation) is traditionally a common-law action and survives independently of statute.
  • Modern copyright systems throughout the common-law world, including India, follow the statutory model.

The Delhi High Court, in Giant Rocket Media And Entertainment Pvt Ltd v. Priyanka Ghatak, 2020 0 Supreme(Del) 1230 (Rajiv Sahai Endlaw, J) dismissing the petition of the plaintiff, held  as under:

  • .(A) Copyright is a statutory right and no right outside the statute exists. Reference in this regard can be made to
    • Time Warner Entertainment Company L.P. Vs. RPG Netcom, (2007) 140 DLT 758 ,
    • Entertainment Network (India) Ltd. Vs. Super Cassette Industries Ltd., (2008) 13 SCC 30 ,
    • Krishika Lulla Vs. Shyam Vithalrao Devkatta, (2016) 2 SCC 521 ,
    • Navigators Logistics Ltd. Vs. Kashif Qureshi, (2018) 254 DLT 307 and
    • atish Kumar supra.
  • Thus, unless a case of defendant No.3 having any copyright and the defendants No.1&2 having infringed the same is made out, the plaintiff is not entitled to any interim relief on the said ground.
  • (B) Per Section 13 of the Copyright Act, copyright subsists in, (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording. The copyright claimed by the plaintiff being in a book authored by the defendant No.3, the same will fall under the category of “literary work”. However, for a copyright to subsist in a literary work, it has to be “original“.
  • (C) In Macmillan & Company Ltd. Vs. K & J Cooper, (1924) AIR PC 75 , it was held that the word “original” does not mean that work must be the expression of original or inventive thought; Copyright Act is not concerned with 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 expression of the thought but the Act does not require that the expression must be an original or novel work but that the work must not be copied from another work. Comparatively recently, in Eastern Book Company Vs. D.B. Modak, (2008) AIR SC 809 , it was held that,
    • (a) the words “literary work” cover work which is expressed in print or writing, irrespective of, whether the quality or style is high;
    • (b) the commonplace matter put together or arranged without the exercise of more than negligible work, labour and skill in making the selection, will not be entitled to copyright;
    • (c) the word “original” demands only that the work should not be copied but should originate from the author;
    • (d) the Court has to see whether the work is a result of skill or expense and if finds it so, it is entitled to be considered original, and to be protected against copying;
    • (e) copyrighted material is that what is created by the author by his skill, labour and investment of capital, maybe it is derivative work; and,
    • (f) the courts will have to evaluate whether derivative work is not the end product of skill, labour and capital which is trivial or negligible but substantially the Courts need not go into evaluation of literary merit of derivative work or the creative aspect of the same.
  •  The Division Bench of this Court in Dart Industries Inc. Vs. Techno Plast, (2016) 233 DLT 1 held that the content of what is “original” has undergone considerable change from the previously applicable “sweat of the brow” doctrine to the “modicum of creativity” standard. It was held that while under the “sweat of the brow” doctrine copyright was conferred on works merely because time energy skill and labour was expended, now under the “modicum of creativity” standard not every effort or industry or expending of skill results in copyrightable work but only those which create works that are somewhat different in character, involve some intellectual effort and involve a certain degree of creativity. Reference in this regard may also be made to
    • The Chancellor Masters and Scholars of the University of Oxford Vs. Narendra Publishing House,MANU/DE/1377/2008,
    • Mattel Inc. Vs. Jayant Agarwalla, (2008) 153 DLT 548 , Reckeweg and Co. GMBh Vs. Adven Biotech Pvt. Ltd.,MANU/DE/0961/2008,
    • Syndicate of the Press of the University of Cambridge Vs. B.D. Bhandari, (2011) 185 DLT 346 (DB) ,
    • Emergent Genetics India Pvt. Ltd. Vs. Shailendra Shivam,MANU/DE/3012/2011,
    • Tech Plus Media Private Limited Vs. Jyoti Janda,MANU/DE/2438/2014 and
    • Navigators Logistics Ltd. supra.
  • (D) Though the entire book authored by the defendant No.3 has not been placed before this Court, with only a copy of the cover and table of contents thereof together with Chapter 7 thereof filed but a reading of the preface thereof reveals that the defendant No.3, in the book has narrated facts about the incident that created news and the book is described as a tale of investigation and prosecution by the CBI that never saw the light of the day. Chapter 7 of the book is defined in the preface as “a crime of passion” and showing “how blue blood suffers from streaks of jealousy and lust and commits murder most vile”. Chapter 7 also describes Syed Modi Murder case as a fascinating case of political interference, changing the course of law.
  • (E) In paragraph 6 of the plaint, it is pleaded that the defendant No.3 from his career in CBI from August, 1963 till his retirement as Joint Director in April, 1996, acquired a deep understanding of the inner workings of the CBI and its interplay with the political system and the book contains a series of highly original narratives of important cases with selection and compilation of facts and materials such as could only have been made by defendant No.3 with his narrative skills and deep understanding of the working of the criminal justice system in matters of the kind handled by the CBI.
  • (F) Applying the law aforesaid, it cannot be said with certainty at this stage, whether Chapter 7 of the book with which this suit is concerned constitutes an “original literary work” or is merely a reproduction of the case files of the crime and its prosecution. If it turns out that it is merely a reproduction, with no innovative thought and creativity, it would not qualify as a copyrighted work. The plaintiff has not produced before this Court the said case files with which a comparison of Chapter 7 can be made and thus the plaintiff cannot be said to have a prima facie case as the defendant No.3, through whom the plaintiff claims, cannot be said to have a copyright. It is in this context only that I had enquired from the counsel for the plaintiff, whether the Investigating Officer of a crime and prosecution has any copyright in the charge sheet filed and/or investigation done. In my prima facie view, the Investigating Officer has no such copyright and if narrates the same in print or otherwise elsewhere, would not have a copyright therein also.
  • (G) Per Section 14 of the Copyright Act, copyright means the exclusive right to do or authorize the doing of acts mentioned therein. With respect to the literary works, the exclusive right is to inter alia reproduce the work in any material form and to make any cinematograph film in respect of the work. Thus, even if the defendant No.3, through whom the plaintiff claims were to have any copyright in Chapter 7, it was incumbent upon the plaintiff to, in the plaint, make out a case of the book of the defendant No.1 having reproduced any part of Chapter 7 in any material form and/or of the defendant No.2 in its web series having made a cinematographic film with respect to Chapter 7 of the book of the defendant No.3. The plaint is bereft of any pleas in this regard. In fact, the counsel for the plaintiff or the counsel for the defendant No.3 in their arguments have not even attempted to make any comparison of Chapter 7 of the book of the defendant No.3 with the book of the defendant No.1 or between Chapter 7 and the film script of the web series of the defendant No.2. Rather, the counsel for the plaintiff, on enquiry, whether has watched the web series, has answered in the negative. Without the plaintiff pleading a case of reproduction of Chapter 7 of defendant No.3”s book or summary of the script of the web series with Chapter 7, no cause of action on the ground of infringement of copyright is found pleaded in the plaint. The plaintiff appears to have filed the suit on the assumption that production of the web series by the defendant No.2, after approaching the plaintiff and defendant No.3 to acquire rights in the book of the defendant No.1, to be itself constituting infringement of copyright but which, as aforesaid, is not the position in law. Even if both Chapter 7 of the book of the defendant No.3 and the book of the defendant No.1 along with the web series of the defendant No.2, are premised on the Syed Modi Murder case which was in public domain, no case for infringement of copyright will be made out.
  •  (H) A reading of Chapter 7 and portions of the book of the defendant No.1 also shows the two, though to be concerning the same case, to be as different as chalk and cheese, with Chapter 7 of the book of the defendant No.3 reeking of official language and the book of the defendant No.1 flavored as fiction and covering not merely the crime and its prosecution but other parts of the lives of the dramatis persone of the drama which unfolded with the crime, with wide coverage, not only in Delhi newspapers, but in other periodicals. In fact, even till date whenever photographs of the survivors of the incident appear, even if in some other context, but are always invariably with reference to the crime and its prosecution. The said crime is as iconic in the history of Indian crimes as the Nanavati Murder case of the erstwhile times and the Talwar and Nithari case of comparatively recent origin with, as far as I remember, four films and one web series having been produced inspired by the Nanavati Murder case. Thus, no prima facie case of infringement of copyright even if any is pleaded or an attempt to prove the same is made out.
  • Perhaps realizing so, the counsel for the plaintiff, early in his arguments, based his arguments primarily on breach of confidentiality. However as aforesaid noticed and also argued by the senior counsel for the defendants No.1&2, the plaint is bereft of any plea of any relationship of confidentiality between the parties or anything in confidentiality having been transacted between the parties. All that the plaintiff has pleaded is the repeated approaches made by the defendant No.2 to the plaintiff and the defendant No.3 to acquire rights in the book of the defendant No.3 and defendant No.3 though initially having shown reluctance thereto having subsequently informed the defendant No.2 of its willingness to negotiate. There is not an iota of plea of any jural relationship having come into existence on the premise of confidentiality.
  • (J) The only response of the counsel for the plaintiff when quizzed in this respect was that the book of the defendant No.3 was already in public domain. However if that was so, the same negates any ground urged of confidentiality.
  • (K) As far as the judgments relied upon by the counsel for the plaintiff are concerned, in Zee Telefilms Ltd. supra, the plaintiff was found to have developed a novel concept of Bal Krishna residing with a family whose life is disturbed and solving their troubles and of having developed the said idea into a plot which was submitted to defendant No.1 in trust and it was further found that the defendant No.1, in an attempt to wriggle out of culpability sought to contend that at about the same time, the defendants No.2&3 approached the defendant No.1 with the same plot. The Court found the two works to be having striking similarity and further found it impossible to accept that the similarities in two works were mere coincidence. It was for this reason that injunction was granted. As distinct therefrom, Chapter 7 of the book of the defendant No.3 is not based on any novel concept but on a crime and its prosecution, already in public domain and the possibility of the defendant No.1, much after publication of book by the defendant No.3 having chosen to write a piece of fiction premised on the same crime and its prosecution, is writ large, particularly when the law permits the same and no similarity is found between the two works much less reproduction by the defendant No.1 or the defendant No.2 of the work of the defendant No.3.
  • (L) Thus, no pleadings or cause of action for grant of any interim relief to the plaintiff on the ground of breach of confidentiality is made out. In view thereof, the need to deal with the existence of the right of confidentiality in the context of Indian Law is not felt.
  • (M) The plaintiff is giving undue emphasis to the change effected by the defendant no.2 in its web series with respect to the game played by the victim. The same is of no significance to the entitlement of the plaintiff to the relief claimed.
  •  (N) Merely because the defendant no.2 approached the plaintiff and defendant no.3 for acquiring rights in the book of the defendant no.3 would also not entitle the plaintiff to the relief without plaintiff making out a case of having a copyright and infringement thereof or of the defendant no.2 having misappropriated anything handed over to it in trust or confidence. What has to be judged is the conduct of the defendant and if the said conduct is found to be above law even though the defendant no.2 under misconception/ignorance of law or otherwise was earlier of the view that consent of the plaintiff and/or defendant no.3 was required, the same would not estop the defendant no.2 from, on realising the correct position in law, proceeding to make and release the film/web series without any agreement with the plaintiff or defendant no.3.
  • (O) I am also of the view that the ex-parte relief as granted against the defendants no.1& 2 on 3rd January 2020, even though couched in the language of a prohibitory injunction, owing to undisputed release of the web series by the defendant no.2 on 1st January 2020 was in exparte ad-interim mandatory form. Rather, it was incumbent upon the counsel for the plaintiff to, at the time of hearing on 3rd January 2020, inform the court of the web serial having already been released on 1st January 2020 and to request the court to direct the said web series to be taken down and which the plaintiff failed to do.
  • (P) Not only is the plaintiff not found to be having a prima facie case but the plaintiff is found to fail on the anvil of irreparable loss and injury and balance of convenience. The defendant no.2 having already made and released the web series, at a huge cost would suffer irreparable loss on being restrained to reap the benefit of not only the monies invested but also the effort of love for filmmaking, including of all artists involved in the making thereof. On the contrary, the plaintiff, even if ultimately succeeds, can always be compensated in monetary terms and post facto recognition conferred on the defendant no 3. The senior counsel for the defendants no.1&2, yesterday on enquiry informed that a sum of Rs.14 crores had been expended on making of the web series. I had yesterday only enquired from the counsel for the plaintiff, whether was willing to furnish security to the defendant in the said sum plus reasonable profits likely to be reaped therefrom. No response was given, neither yesterday nor today.
  • (Q) I must however observe that even though the plaintiff is not found to have made out a case for interim relief but the defendants No.1&2 are also not found to be playing fair and making a clean breast of the state of affairs. However, such conduct of the defendants No.1&2 would not be a ground for granting interim relief to the plaintiff.

End Notes

Section 14(a) in The Copyright Act, 1957

14. Meaning of copyright.– For the purposes of this Act, copyright means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely—

  • .(a) in the case of a literary, dramatic or musical work, not being a computer programme,—
    • .(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;
    • (ii) to issue copies of the work to the public not being copies already in circulation;
    • (iii) to perform the work in public, or communicate it to the public;
    • (iv) to make any cinematograph film or sound recording in respect of the work;
    • (v) to make any translation of the work;
    • (vi) to make any adaptation of the work;
    • (vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);
  • (b) in the case of a computer programme:
    • .(i) to do any of the acts specified in clause (a);
    • (ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programmer:
  • Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.]
  • (c) in the case of an artistic work,–
    • to reproduce the work in any material form including–
    • the storing of it in any medium by electronic or other means; or
    • depiction in three-dimensions of a two-dimensional work; or
    • depiction in two-dimensions of a three-dimensional work;]
  • (d) in the case of a cinematograph film,–
    • .(i) to make a copy of the film, including–
      • (A) a photograph of any image forming part thereof; or
      • (B) storing of it in any medium by electronic or other means;]
    • (ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film.]
    • (iii) to communicate the film to the public;
  • (e) in the case of a sound recording,–
    • .(i) to make any other sound recording embodying it 6[including storing of it in any medium by electronic or other means];
    • (ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording;]
    • (iii) to communicate the sound recording to the public.

Explanation.–For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation].

Section 51 of the Copyright Act, 1957:

“51. When copyright infringed – Copyright in a work shall be deemed to be infringed–

  • .(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act–
  • .(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
  • (ii) permits for profit, any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or
  • (b) when any person–
    • makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
    • distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
    • by way of trade exhibits in public, or
    • imports into India,
    • any infringing copies of the work:

Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.

Explanation.-For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.

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