Wow! what an idea!!! but can you protect it under the Indian copyright act? – Eshwars
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Wow! what an idea!!! but can you protect it under the Indian copyright act?

[First published in Lexology on 27th June 2019. To read Article in Lexology click here]

MR. N V SAISUNDER

PARTNER – IPR & TECHNOLOGY LAW PRACTICE

MS. SHYAMOLIMA SENGUPTA

SENIOR ASSOCIATE – TRADEMARK & COPYRIGHT PRACTICE

BACKGROUND:

In today’s competitive world, what sets businesses apart from the rest are their novel and exceptional ideas and thus, it is extremely important that there should be free flow of ideas that are capable of commercial exploitation in order to keep businesses going. While it is pertinent to share ideas to bring the change entrepreneurs foresee, many organisations, especially start-ups possessing novel ideas, based on which their businesses are built, are worried about the loss of competitive edge when their business ideas come in to the public domain for fear of plagiarism and idea theft. More often than not many organisations, especially start-ups, which possess such novel and innovative business ideas and delivery models are faced with an important question on whether such ideas qualify as an Intellectual Property that can be statutorily protected or registered under the various Intellectual Property Laws. The simple answer to that question is that while business ideas are indeed trade secrets that have an intrinsic Intellectual Property value but at present there are no provisions in any law in India to protect trade secrets and business ideas perse.

The present statutory regime in India, offer protection to marks, logos, devices etc., as trademarks [Trademarks Act, 1999]; scientific inventions are protected as patents [Patents Act, 1970]; literary works, art, artistic works, cinematograph films, music, photographs etc., have protection as copyrights [Copyrights Act, 1957]; shapes and forms of inanimate material objects are protected by industrial designs [Industrial Designs Act, 2000]; and VLSI designs are protected by the Semiconductor Integrated Circuits Layout DesignAct,2000. Thus, any protection with respect to the business ideas has to be within the aforesaid statutes.

However, it is not that the law does not provide for any protection to businesses possessing unique and novel ideas and in this article we will analyze the ways and means available to organisations to protect their business ideas under the present statutory regime prevalent in India.

In this regard a specific discussion and understanding of the Copyright Act of 1957 (“Act”) becomes essential. Under the Act, expression of an idea in any tangible form or medium is capable of being protected. This principle has been upheld and enforced by various courts time and again in matters relating to protection of an idea under the Act, even as recent as in the year 2018 by the Delhi High Court in an appeal challenging an order of the Trial Court in the matter of Sanjay Kumar Gupta Vs. Sony Pictures Networks India P. Ltd. AIR (2018) Delhi 169.

Analysis of the relevant statutory provisions

Although, the Act does not explicitly provide that the ideas can be protected per se, the said principle can be implied by reference to the following provisions of the Act, which have been interpreted by the courts while dealing with cases relating to ideas and their protection as a Copyright in India:
a.Section 13(1) of the Act clearly lays down that the copyright shall subsist only in original literary, dramatic, musical and artistic works, cinematographic films and Sound recordings. Besides the above works, the other works in which copyright can exist are live shows or performers rights and broadcasting rights as provided under Sections 37 to 39A of the Act.
b.Section 14- A combined reading of Section 13 (hereinabove referred) with Section 14 of the Act, which enumerates the meaning of the Copyright, directs us to the underlying principle that copyright shall necessarily subsist only in a tangible form such as literary work, sound recording, dramatic, artistic works, live shows/performers’ rights et al, as prescribed under this Act.
c.Section 16 of the Act expressly clarifies that there cannot be a copyright in any work except as provided under the Act.
d.Section 51 of the Act states that a Copyright is infringed inter-alia 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 does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright.

These provisions have been the subject matter of interpretation by Indian courts in various Copyright infringement matters, and the courts have laid down various judicial principles from time to time in this regard. Before we look at a few case laws, it is necessary to understand some of the important principles formulated by Indian courts while dealing with copyright infringement matters in India as under.

A. THE IDEA-EXPRESSION DICHOTOMY

This principle was formulated by the courts to ensure that the manifestation of an idea (i.e. an expression) is protected rather than the idea itself. The basic principle underlying the Idea-Expression dichotomy is where the courts have to draw the line between the ideas and expression of an idea, thereby to identify first as to what may constitute idea in a particular work and what is an expression of idea where the originality resides. However, such expression must be specific, which can include particular arrangement of words, designs or other forms which has been documented. Hence, it is to be understood that the Act does not protect an idea per se, but the expression of such an idea in any tangible form is recognised for protection under the Act.The expression of an idea in a tangible form is the underlying principle of the Act, and is the basic pillar relied upon by Courts in dealing with copyright matters.

B. MERGER DOCTRINE

This doctrine propounds that where the idea and expression are intrinsically connected and that the expression is indistinguishable from the idea, copyright protection cannot be granted. The doctrine of merger provides that when the expression is the idea, and vice-versa, and there is only one way to express the underlying idea, the idea will merge with the expression as to make them indistinguishable. Consequently, the expression becomes non-copyrightable. Applying this doctrine courts have refused to protect the expression of an idea that can be expressed only in one manner, or in a very restricted manner, because doing so would confer monopoly on the idea itself.

C. IMPORTANT TESTS TO DETERMINE AN INFRINGEMENT

The following are the tests/principles considered by Courts in order to decide as to what would constitute an infringement:

  • Substantial copy

    In case of any copyright infringement, the copyright owner must prove that the infringer’s work is “substantially similar” to that of the owner’s work. Hence, the infringement test involves two important components. First, did the defendant actually copy the plaintiff’s work? And, secondly whether the copied elements are of sufficient importance under the original work that entitles the copyright owner to file an infringement action. Any resemblance between the owner’s work and the infringer’s work would not necessarily imply an instance of infringement of the owner’s work, although it may play a role in proving infringement.

  • Access

    The aspect of access to the original work of the copyright owner is also relevant in determining an infringement. The rationale behind this is that given the sufficient opportunity that the infringer had, to copy the original work in addition to the striking similarity between the two works, the evidence in hand should be indicative of copyright infringement. However, if the copyright owner is unable to show evidence of access, the court would still construe infringement, if there are striking similarities between the original work and infringing work.

  • Audience Test

    To establish infringement, the copyright owner should demonstrate that any audience would find the expression in the infringer’s work substantially similar to the original work. This principle of test is from the perspective of a third person, or a layman, the two works should seem so substantially similar that as a layman they would not be able to distinguish between the two.

Analysis of relevant case laws

A.In a landmark judgement of R.G Anand VS M/S. Delux Films & Ors. (1978) AIR 1613, the Supreme Court while dealing with the issue of copyright protection categorically laid down the principle that- “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 copy-righted work, amongst other principles with respect to infringement of a copyright.”

B.In Beyond Dreams Entertainment Pvt. Ltd.(plaintiff) vs. Zee Entertainment Enterprises Ltd.(defendant) 2015(4) ALLMR 518, the Plaintiff developed a concept for a TV show which was reduced to concept notes. Thereafter, the Plaintiff approached the Defendant to produce the same and subsequently, the Defendant announced the launch of a new serial which the Plaintiff alleged, was entirely based on his concept notes. The Bombay High Court while dealing with the said matter, held that the elements of expression in the Plaintiffs’ concept notes which are protectable under copyright law are copied into the Defendants’ work, and it is not the basic plot or idea of the story, but actual concrete elements that make up the total sequence of events and relationships between major characters that are plagiarized. Thus, the fact that the Plaintiff had reduced his idea to a tangible form, i.e. the concept note, was recognized by the Court as a work in which copyright subsists and hence can be afforded the protection under the Act.

C.Similarly, in the case of Anil Gupta V. Kunal Dasgupta AIR (2002) Delhi 379– commonly known as the Swayamvar Case, the Delhi High Court laid down that an idea per se has no copyright. But if the idea is developed into a concept fledged with adequate details, then the same is capable of registration under the Act and that the Laws must ensure that persons who create an idea / concept or theme which is original are rewarded for their labour.

D.Another interesting case on this aspect was dealt with by the High Court of Karnataka in the matter of The Academy of General Education Vs. SMT. B. MALINI MALLYA, In the High Court of Karnataka at Bangalore- ILR 2008 KAR 1074, MIPR 2008 (1) 373 and MANU/SC/0146/2009 (On Appeal). The brief facts are that one Dr. Karnath had authored a literary work on a Yakshagana ballet (Folk Dance), which he called Yaksharanga, and the same was performed by the Academy of General Education without prior consent of the copyright owner and thus the copyright owner claimed an infringement of such literary work. The copyright owner had in support of the infringement claim stated that there was substantial research done and detailing that had been expressed in such literary work on the Yakshagana ballet such as the Raga, Thala, scenic arrangement, cosmetics, appearance of the actors on the stage, use of various musical instruments, gesture, posture and facial expression, duration, ornaments etc. The High Court held that the performance of the Yakshagana ballet without the consent of the copyright owner was an act of infringement of the copyright of the literary work and considered the following principles in arriving at the said judgement:

  • The Copyright Act is 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 question is not whether the materials which are used are entirely new and had never been used before, but the true question is whether the same plan, arrangement and combination of materials have been used before for the same purpose or for any other purpose.
  • There cannot be copyright in mere scenic effects or stage situations which are not reduced into some permanent form.

E.The Delhi High Court in its recent judgement in Sanjay Kumar Gupta Vs. Sony Pictures Networks India P. Ltd (2018) reiterated the principle that a concept obviously cannot be a subject matter of copyright because a concept has to be brought into the form of a literary work or dramatic work or musical work or artistic work or cinematographic work or sound recording or a performance/performer’s right or live show and only where after there will exist a copyright in the work. However, the case did not turn in favour of the plaintiff-appellant for other material reasons such as lack of originality in the concept and the fact that the said concept in question has already existed in the public domain.

CONCLUSION

Thus, it can be inferred from the above case laws and judicial principles that copyright protection extends only to expressions and an idea per se cannot be copyrighted but the expression of that idea in a tangible and concrete form, can be subject to copyright protection. Many people can have the same idea; however, the presentation of the idea may differ and the manner in which it can be expressed may decide whether the same qualifies for a copyright protection.

Further, the extent of efforts, skill and intellectual labour involved in detailing of a work assumes great significance that would help a copyright owner to establish a prima facie case of infringement against the infringer and such detailing has been acknowledged and recognised by courts in determining the rights of the copyright owner in an infringement suit.

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