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1. "Copyright exists in expression of idea and not in idea" – Explain this statement in
the light of various subject matters of copyright
I. Introduction:
Copyright is one of the key branches of IP law which protects the expression of ideas.
For a work to gain a copyright it has to be original and should be expressed in material
form. Copyright is thus effective upon the creation of work. The Indian Copyright Act,
by virtue of Section 13, grants protection to the following works:
2. Cinematographic films.
3. Sound recording
There exists no copyright in ideas. Copyright subsists only in the material form to which
the ideas are translated. Two authors may have the same idea for a book. However the
way they express themselves i.e., the way they put down their idea in a tangible form is
what that makes a difference. It is the form in which a particular idea, which is translated
that is, protected.
The primary reason for granting protection to expressions and not ideas is to protect the
free flow of ideas. Ideas are too valuable to be copyrighted. The copyrighting of ideas
would eventually bring creativity and innovation to a standstill. It is for this reason that
the freedom to copy ideas is central to the structure of copyright law.
An important case in this regard is that of RG Anand v. Deluxe Films. The plaintiff was
the author of a play called Hum Hindustani. In 1954, the defendant Mohan Sehgal sent a
letter to the plaintiff expressing his desire to make a movie based on the play. The
plaintiff and the defendant met and discussed the entire play. The defendant did not
commit anything, but the plaintiff later came to know that the defendant released a movie
titled New Delhi. After watching the movie, the plaintiff was of the opinion that it is
based on the story of his play. So he filed a suit against the defendant for permanent
injunction and damages. Both the District Court and the High Court ruled against the
plaintiff on a finding of the facts. The case finally reached the Supreme Court of India.
The Supreme Court held that the movie cannot be considered to be an infringement of the
script of the play. The reason it gave was that though the idea behind both the stories was
the same, the manner in which both had been expressed were vastly different from each
other. Therefore it cannot be held to be copyright infringement.
More recently, in the case of Mansoob Haider v. Yashraj Films, the Bombay High
Court reiterated on the fact that ideas are not copyrightable. The residue left behind after
filtering out dissimilarities is the idea which is not copyrightable and similarity of ideas
does not lead to copyright infringement.
In Morrisey v. Proctor & Gamble Co. This case primarily dealt with a
competition/contest and whether its rules are a subject for copyright. The court held that
the idea of the contest is merged with the rules. Copyrighting the rules would amount to
copyrighting the idea of the contest and therefore the rules are not a subject matter of
copyright.
I. Introduction :
Copyright is a right which is given to original works and it is not a right that is given for
novelty of ideas.Generally copyright subsists,in original works of authorizing fixed in
any tangible medium of expression,from which they can be perceived,reproduced or
otherwise communicated,either directly or with the aid of a machine or device. The
primary function of copyright law is to protect the fruits of a mans work,labour,skill from
annexation by other people. Copyright refers to a bundle of exclusive rights vested in the
owner of copyright by virtue of Section 14 of the Act. These rights can be exercised only
by the owner of copyright or by any other person who is duly licensed in this regard by
the owner of copyright. These rights include the right of adaptation, right of reproduction,
right of publication, right to make translations, communication to public etc.
III. Originality:
Originality is the sine qua non of copyright. A work that merely reflects an “ageold
practice, firmly rooted in tradition and so commonplace that it has come to be expected as
a matter of course” is not remotely creative. Folklores are also exempted in this sense.
Exercise of efforts on the part of the author should not be trivial in nature and thus should
not be a mere exercise of the mechanical function of copying the work of another.
Variation must be substantial in nature than merely trivial. A literary work is entitled to
copyright protection, if it is an “original literary” work.
It was held in University of London Press Ltd. v. University Tutorials Press Ltd that
the word original does not demand original or inventive thought, but only that the work
should not be copied but should originate from author. An ‘original’ must be a “product
of an exercise of skill and judgment”, where ‘skill’ is “the use of one's knowledge,
developed aptitude or practiced ability in producing the work” and judgment’ is “the use
of one's capacity for discernment or ability to form an opinion or evaluation by
comparing different possible options in producing the work”.
The Indian copyright law mandates that 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 minimum degree of
creativity. The authorship involved in creation of work should be a result of substantial or
distinguishable variation and not a result of trivial variation.
The Copyright Office will examine the work for determining whether it satisfies the
originality requirement and this should not be interpreted in a manner that the work
should be novel, distinctive, innovative or unique. Each case would be scrutinized on its
individual merits to establish originality as per the current approach as stated in Eastern
book Company and Others v. D.B. Modak and Another.
V. Dramatic work
the Copyright Act of 1957 says that "dramatic work" includes any piece for recitation,
choreographic work or entertainment in dumb show, the scenic arrangement or acting
form of which is fixed in writing or otherwise, but does not include a cinematograph
film.'
Copyright may protect not only the dialogue of a drama, but also all such means of
expression as the author uses to give dramatic significance to the scenes of his work.'"
But mere motions, voice and postures of actors and mere stage business are not subject of
copyright protection.'^* A copyright owner's protectable property in a play consists of
development, treatment, and expression of elements such as theme, locale, settings,
situations, ideas, and bare basic plots, but the elements in themselves are not
protectable,'^^ since it is expression of ideas, not ideas themselves, that is protected.'
A dramatic work is something that is capable of being written or printed or reduced to
some permanent form, subject, however, to its being so reduced, that it discloses a plot or
a story and indicates the mode by which it should be expressed i.e. either with dialogue or
by action. The expression of such work is called a dramatic performance. Hence, for any
work to constitute a dramatic work, three ingredients are essential viz, (i) it must be
reduced to a permanent form, (ii) it must disclose a plot or a story and (iii) it should be
capable of being performed either with dialogue or by action or both.
In Indian Express v Jagmohan where the defendants made a stage play and a movie
based on the central theme of certain series of articles published by the plaintiff namely
the purchase of a woman named Kanta by a journalist to highlight the flesh trade
flourishing in some parts of the country.The article published was as an autobiographical
count of the part actually played by the author in the affair. In the film, the emphasis was
on human bondage,particularly of Indian women. The court held that there was no
infringement.
Copyright subsists in original dramatic work and its adaptation. Section 2(h) provides
that “dramatic work” includes any piece for recitation, choreographic work or
entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in
writing or otherwise but does not include a cinematograph film.
In case of literary, dramatic or musical work, A copyright gives the right to do and authorize the doing of
any of the following acts, namely-
i. to reproduce the work in any material form;
ii. to publish the work;
iii. to perform the work in public;
iv. to produce ,reproduce ,perform or publish any translation of the work;
v. to make any cinematographic film or a record in respect of work;
vi. to communicate the work by broadcast or to communicate to the public by loud-speaker or any
other similar instrument the broadcast of the work;
vii. to make any adaptation of work;
viii. to do in relation to a translation or an adaptation of the work any of the acts specified in relation to
the work in clause (i ) to (iv).
In the case of the artistic work, a copyright gives the right to do or authorize the doing of any of the
following acts, namely-
i. to reproduce the work in any material form;
ii. to publish the work;
iii. to include the work in any cinematography film;
iv. to make any adaptation of work;
v. to do in relation to an adaptation of the work any of the acts specified in relation to the work in
clauses (i) to (iii).
3. Enumerate the cases in which compulsory license in copyright may be granted. Who will grant
the compulsory license and when it can be revoked ?