Copyright ipr 2

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:

1. Original literary, dramatic, musical and artistic works.

2. Cinematographic films.

3. Sound recording

II. Copyright is protection in Form and not in Idea

Copyright is a right given to or derived from works and it is not a right in novelty only of
ideas. Copyright essentially protects the works of an author or creator and prevents others
from copying such original work. It does not, however, bar others from coming to the
same result through an independent process.

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.

Idea/expression dichotomy was explained by the Calcutta High court in a Barbara

Taylor Bradford v/s Sahara Media Entertainment Ltd., where the court pointed out
that the law protected originality of expression and not originality of the central idea due
to the balancing of two conflicting policies. The first policy was that the law must protect
originality of work, thereby allowing the authors to reap the fruits of their labour and
stopping unscrupulous pirates from enjoying those fruits. The Second policy was that the
protection must not become an over protection, thus, curbing down future creativity. If
Mere plots and character are to be protected by copyright, an author could not write
anything “original” at all on a similar plot or on similar characters
 III. How does one distinguish between an Idea and an Expression?
The idea-expression dichotomy poses a major challenge in distinguishing between the
two. The absence of a statutory provision necessitates reliance on several case laws that
attempt at chalking out a clear distinction between the two. For example: A tennis
racquet manufacturing company design a racquet. But before it is registered a tennis
magazine published an advertisement of similarly designed racquet, under different brand
name. In the above case, a tennis racquet manufacturing company design a racquet, but it
does not registered yet, Its called an Idea. Where as tennis magazine published an
advertisement of similar designed racquet, its called Expression of Idea.

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.

2. Write a note on original,literary and dramatic work

/What is copyright? To what extent copyright in literary dramatic and musical work
subsists?

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.

II. works in which copyright subsists

Section 13 of the copyright act 1957 provides the list of works in which copyright
subsists which are as under –
1. Original literary,dramatic,musical and artistic works
2. Cinematography films
3. Sound recording
As per Section 17 of the Act, the author or creator of the work is the first owner of
copyright. An exception to this rule is that, the employer becomes the owner of copyright
in circumstances where the employee creates a work in the course of and scope of
employment.

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.

IV. Copyright in literary works

The law of literary property evolved not only from the creative impulse of a man, but also
from the inhibitions and prohibitions with which writing has been involved. Section 2(o)
of the Act lays down that “literary work” includes computer programmes, tables and
compilations including computer databases.
Irrespective of the quality, style or literary merit, a work may be considered as literary, if
it is expressed in print or writing or in some form of notation or symbols. A literary work
is something which is intended to afford either information or instruction, in the form of
literary enjoyment.
The term ‘literary’ in copyright law is to be used in a sense somewhat similar to the use
of word literature in political or electioneering literature and refers to written or printed
matter. Literary works includes but are not limited to textbooks, poem, magazine,
catalogue,letters, novel, dissertation, lyrics of song etc.
Abridgement of literary works can be subject to copyright if the work is original and new
and if the author has put sufficient labour and skills upon it. In Govindan v
Gopalakrishna the Court stated that the meaning of abridgement is the reproduction of
the original work in a more concise and precise manner.
In Blackwood v Parasuraman it was held that a translation of a literary work is itself a
literary work and is entitled to copyright protection. It further held that if copyright
subsists in the original work then reproduction or publication of the translation without
the consent or license of the owner of the copyright in the original will constitute
infringement.
In Jagadish Chandra v Mohim Chandra it was held that in the reports of judgement
the reporter has no copyright but it cannot be said that in the selection of cases and in the
arrangement of reporting, the reporter does not have the protection of copyright law.
In Walter v lane it was held that letters addressed by one person to another are original
literary work and when a letter is dictated to a typist the copyright in the letter belongs to
the person who dicated the letters.
In Chappel v Redwood Music it was held that the collective works like encyclopedia or
dictionary constitute work written in distinct parts by different authors or in which works
or parts of works of different authors are incorporated.Each such author has a copyright
besides the compiler of the dictionary who has a separate copyright in the work.
In Deepak printer v Forward stationary mart the Gujarat hc ruled that no copyright
subsists in a calender even though certain pictures of deities and public personalities and
decorative features were incorporated.

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.

VI. Distinction between Literary and Dramatic Work

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.

Choreography and scenic arrangement is the art of arranging or designing of ballet or

stage dance in symbolic language. It is a form of dramatic work. The Act makes a
distinction between a ‘literary work’ and a ‘dramatic work’. The difference between the
two rests on the fact that a literary work allows itself to be read while a dramatic work
“forms the text upon which the performance of the plays rests”.

A dramatic work is something that is capable of being written or printed or reduced to

some permanent form, however being so reduced, it does not include a cinematograph
film and indicates the mode by which it should be expressed.

VII. Artistic work

Any work which is an original creation of an author or an owner fixed in a tangible form,
is capable of being entered into the Register of Copyrights, irrespective of the fact that
whether such work posses any artistic quality or not.

Artistic work” means— a painting, a sculpture, a drawing (including a diagram, map,

chart or plan), an engraving or a photograph, whether or not any such work possesses
artistic quality; a [work of architecture]; and any other work of artistic craftsmanship; as
provided under Section 2(c) of the Copyright Act.
“Work of architecture” means any building or structure having an artistic character or
design, or any model for such building or structure as provided under Section 2 (b). In
addition to this, according to Section 13 (2) (iii), in case of work of architecture, the work
shall be located in India.
Further, read with Section 13(5) in case of work of architecture, copyright shall subsists
only in the artistic character and design and shall not extend to process or methods of
construction.
“Photograph” includes photo-lithograph and any work produced by any process
analogous to photography but does not include any part of a cinematograph film as
provided under Section 2 (s) of the Copyright Act.
Engravings” include etchings, lithographs, wood-cuts, prints and other similar works, not
being photographs as provided under Section 2 (i) of the Copyright Act. “Work of
Sculpture” includes casts and moulds as provided under Section 2 (za) of the Copyright
Act.
In Allibert v O’Conner the court opined that the copyright protection given to the work
and not to the idea. So a copyright would vest in a product drawing even thought it may
be based on an earlier drawing.
 In Associated Publishers v Bashyam where a portrait of Gandhi was made based on 2
photos,it was held that a portrait based on photos will be entitled copyright if the result is
different from the photograph and the portrait itself is original.
VIII. Musical Works
The Indian Copyright Act, 1957 Section 2 3 [(p) “musical work” means a work
consisting of music and includes any graphical notation of such work but does not
include any words or any action intended to be sung, spoken or performed with the
music.
In Redwood music v chapell it was held that if a musical arranger so
decorates,develops,transfers to a different medium or otherwise changes the simple music
of a popular song so as to make his arrangement fall within the description of an original
musical work then such arrangement is capable of attracting independent copyright.
Whenever a song is copyrighted as a musical composition, both the words and music are
protected.""* Words alone, unaccompanied by music, are also entitled to copyright
protection as a literary work, but a statutory copyright does not give a monopoly over an
idea or a musical phrase; it merely protects against the unlawful reproduction of an
original work."*' Although a musical composition is made up of rhythm, harmony, and
melody, rhythm and harmony have been in the public domain for so long that neither can
be subject of copyright; hence, originality must be found in the melody.
In the case of Gramophone Company of India Ltd v Super Cassette Industries Ltd
the plaintiff had produced audio records titled ‘Hum Aapke Hain Kaun’ under rights
alleged to have been assigned to it by Rajshree Production Pvt Ltd who were the
copyright owners of the cinematographic work. The plaintiff claimed that as they had
sold 55 lakh audio cassettes and 40,000 compact discs titled ‘Hum Aapke Hain Kaun’,
the title ‘Hum Aapke Hain Kaun’ when used on a record, would come to be associated
with the plaintiff alone. The plaintiff’s alleged that the defendants launched an audio
cassette by adopting ‘Hum Aapke Hain Kaun’ as its title with its design, colour scheme,
getup and lay-out which were deceptively and confusingly similar to that of the plaintiff's
and also used a photograph of Salman Khan and Madhuri Dixit on the inlay cards.
It was decided by the Court that as the Act permitted version recording, the defendants
were entitled to record the music subject to the condition that they should not use the
carton or the inlay card or any other packaging material similar to that of the plaintiffs.

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 ?