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The Evolution And Revolution Of Copyright Law:An Indian Perspective (By-Anisha Arya)
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The Evolution And Revolution Of Copyright Law:An Indian
Perspective
Authored By-Anisha Arya
Penultimate Law student, BVP’ Pune
Penultimate Law student, BVP’ Pune
Abstract
Human being is differed from all
other species on the planet earth because of his ability of rationale. It is
his ability to create things and make a judgement by the application of mind
which creates a monetary value of homo-sapiens amongst others. Any art,
literature, drama, music, cinema, inventions ,and innovations, counts as an
‘intellectual property’ of its maker, which is worthy of protection since it
stimulates competition and creativity in the society. However, there can be
numerous cases where one’s property is misused by an unauthorized user to make
wrongful gains and leaving the owner is abeyance. Often such offenders try to
diverge traffic from the original source/product to its pirated versions. Thus
to safeguard the exclusive rights of the owners and makers of such property,
its violations are governed by statutes like Copyright Act, 1957; Patents Act,
1970 and Trademarks Act, 1999.
The idea behind providing such a
protection to authors and owners of literary work and inventions is to promote
the continuous improvements in the fields of science and art. Each such
property is a resultant of an idea that pops up in a human mind, it’s a journey
from a plan to its execution. However, ideas per se cannot be protected, it is
only the ‘expression of the idea’ which can be protected under the copyright
law. A plan or a design or a scheme which remains to be put into a tangible
form, incapable of being produced, copied, sold, etc. cannot itself be
copyrighted. Section 13(1) of the Copyright Act[1]
provides for the varieties of works which are capable of being protected, for
instance; literature, drama, music, art, cinema, architectural designs, computer
programs, etc. The general rule is that a copyright lasts for 60
years from date of receipt of
copyright registration however in case of original literary/artistic work, it
lasts for the lifetime of the author and 60 years thereafter.
KEYWORDS-
CA 1957 (herein referred as “CA”),
IPR, Copyright Infringement, RG Anand’s case, Fair use, International
Copyright, Berne Convention.
Introduction
R.G. Anand v. M/s. Delux Films & Ors.[2], is a landmark judgement in the
history of jurisprudential landscape of copyrights law in India. The factual
matrix of the case revolves around an allegation put forth by Mr. R.G. Anand,
who wrote the play called “Hum Hindustani”, against Mohan Sehgal’s movie “New
Delhi”, to have copied the theme of his
play and thus infringing his rights under Section 14 of the CA[3]
(herein referred as “S.14”).
R.G. Anand’s play was one of the most
renowned plays of the time, reperformed in 1954, 1955 and 1956. One of the
defendants sought to meet him when R.G. Anand decided to film the play due to
its growing popularity. The two sat together in January 1955 to discuss the
themes, scenes and characters of the play. However, RG Anand did not hear from
the defendant after that. A year later when “New Delhi” was released in
September 1956, RG Anand realized that not only the scenes of the film were an
exact replica of the play, but the protagonist’s character and themes of the
movie were also similarly portrayed.
Justice Faizal Ali in a historic
ruling, which marked the foundational stone of an all-encompassing test of
copyright infringement, held that although both, the play and the film, is
based on the common concept of “Provincialism” however, the film dealt with a
wider scope of the theme, it varied in its backgrounds and culture as well and
therefore the theme of these two forms of literature might be same but the
execution was different, which made each of them stand apart. Accordingly, the
plaint was rejected.
The case laid down the 3 major
findings, which are as follows:-
1. Ideas and Expression Dichotomy, the rule upon which majority of copyright law in India is
based. It is based on the rule that subject matter/issue or argument of any two
literary works can be the same, but it is the way of dialect/presentation which
makes them unique, and it is this uniqueness which can be copyrighted. For
instance, two authors might have the same issue to write about, but it is their
way of narration which marks a difference.
2. Point of similarities and dissimilarities, according to this principle the
degree and type of similarities between two works decides whether the latter is
copied. If similarities are extensive and not coincidental, an inference of
colorable imitation and a copyright infringement would follow.[4]
3. Reasonable man’s test, provided the question of copyright infringement depends on identifiable
manifestation of copied ideas. If an ordinary man would not consider the two
works as same/ copied, then the same understanding should follow. This test
have been the most instrumental in formulating the concept of copyright
infringement in its modern incarnation.
Contemporary Relevance-
The RG Anand case have led to provide
a watershed event in reinventing the modern form of copyright law. Drawing
inspiration from the substantial similarity criterium and uncopyrightability of
mere ideas, the Indian judiciary have time and again held a strong ground
against copyright infringers.
In Shree Ventakesh Films v. Vipul Amrutlal Shah[5],
the court in a case of infringement of copyright of a film called “Namaste
London” by a Bengali film, defined the term “copying” as under S.14, held that
a cinematographic film is a homogenous material, consisting of an amalgamation
of varied contents/items like theme, plot, characters, dialects, dialogues,
etc., each part is copyrightable. The court observed the term cannot and should
not be given a strict meaning and covers within situations of ‘considerable
similarity’ of works of literature.
In Maddock Films Pvt. Ltd. v. Shiboprasad Mukherjee[6],
the court relied on the settled principle of RG Anand that copyright is
concerned with the form/manner of presentation of an idea. The bench further
took into account that ordinary man test is the ‘most safest and surest’ way of
deciding an infringement, and held that any man would get an unmistakable
impression that the two films are the same since not only the story line, but
the plot, characters, scene setting, leads and behavior of leads of the movies
was similarly portrayed. Thus applying the tests laid down in RG Anand, “Hindi
Medium” seems to have violated the copyright law and so the injunction was
upheld. The charge was however, later withdrew by the plaintiffs.[7]
In another case, MRF Ltd. v. Metro Tyres Ltd.[8],
the court differed from earlier judgement of Madras and Bombay HC, and held
that a cinematographic film is blend of various individual items, like plots,
characters, dialogues, etc. Thus although a work might not infringe copyrights
of these underlying items but a lack of originality/creativity in composition will
lead to a lack of uniqueness, thus making it non eligible of copyright
protection as provided under Section 13(3)[9].
The court laid down two conditions to decide resemblance; (i) comparison
between of the two works in substance, foundation and treatment and (ii)
understanding of an ordinary average viewer.[10]
It can be seen from the above stated
dictums of Indian jurisprudence that there have been rather two schools of
understanding of copyright law in India, one which propagates for the right to
protection of the ‘contents’ of a cinematographic film under S.14 and thus
concerned with the ‘physical/actual copying’[11]
of these contents while the other school contends a more wider interpretation
of protections provided under S.14. The proponents of the latter propose that
such an artwork is a result of the
creative authorship/ production/ direction of inputs. Justice Iyer through his
verbatim judgement[12]
have rightly declared that apart from the rights of the artists of individual
items of a film; for instance, sound producer, musician, lyricist, actors,
photographer; the producer also has the right to acquire copyright for his
unique way of combining and presenting these separate items on the screen.[13]
While the Indian jurisprudence have been reinventing in widening the ambit of
the term ‘copy’, RG Anand’s case remains to provide the foundational
determinative stone of copyright law in India.
Role Of Intermediaries
Infringement of Copyright is not
restricted to unauthorized consumers, often intermediaries like internet
service providers, cyber cafes, websites, etc. can play a vital role in
providing stimulus to the crime. However, their liability is limited to the
amount of their involvement in such acts. For instance, if a cyber café if
found to be mere internet service provider who was not aware of the
infringement being taken place in his premises, he ought to be acquitted. On
the other hand, websites which cost publication charges and consisting of a
process of scrutiny of the work to be put in the public domain play a much
wider involvement if the content published is found to be copied.
For Section 51(a)(ii)[14]
of the CA, specifies two conditions for the provision of intermediary’s
liability i.e. if the intermediary makes profit/ earns a revenue from such an
act of infringement and if he had ‘sufficient knowledge’ of the act. A division
bench in 2017[15] held
that “knowledge” under the section refers to an actual awareness and not just
mere suspicion or general knowledge. The bench also placed reliance to R.K. Mohammed Ubaidullah v. Hajee C. Abdul Wahab[16],
which held:-
“A
person is said to have notice of a fact when he actually knows that fact, or
when, but for wilful abstention from an inquiry or search which he ought to
have made, or gross negligence, he would have known it.”[17]
Essentials Of Copyright
1.
Fixation- The copyright law protects the ideas
put into a fixed forms, i.e. a matured/ ripened tangible expression of the idea
and not a mere work draft. For instance, in the case of a picture, the specific
physical manifestation of the image will be copyrighted. Moreover, such a fixed
form of work must not be transitory in nature and rather be stored in a
permanent tangible medium. Such a characteristic of the law fosters constant
advancements, enhancements and scrutiny of literary works.
For instance, the scientific theories of gravity,
condensation, refraction, etc., were devised a thousand years ago by scientists
like Einstein, are presented in numerous creative ways by different authors due
to its availability in the public domain, here the original developers of these
theories cannot claim copyright on these ideas. The US courts first dealt with
the Idea-Expression dichotomy in the case of Baker v. Selden[18].
The court held that while Seldon can copyright his book describing an effective
accounting system devised by him but he cannot copyright the underlying system
itself. In cases like these, of innovations or inventions, perhaps Patents law
would provide a wider coverage of protection to owners.[19]
2.
Look and Feel- With an era of digitalization, it
has become all the more tedious to draw a line of demarcation become an idea
and its expression. Often copyright infringement in cyberspace involves copying
the ‘look and feel’ of the websites/ web pages i.e. the appearance/ designs of
graphical interfaces (non-literary source), apart from the program codes
(literary source), to divert concentration. In such cases, it is wise to
follow the ordinary man litmus test
so as to conclude whether such similarities constitute an infringement.[20]
‘Fair Use’ Doctrine
The dilemma of protecting copyright
holder’s rights on one hand and realizing the purpose of the copyright law have
been a hot debate topic since long. The most important and necessary argument
is that not all expressions of content/work can be restricted from being
reproduced, there has to be a balance between the individual’s right of
protecting unauthorized usage of his work and society’s thrust of knowledge.
These discussions gave impetus to the ‘fair use’ doctrine, a judge made law in
the US through the case of Folsom v.
Marsh[21]. Later
the doctrine was inserted via Section 107 in the US Copyright law, which
provides for a 4-factor test in determining copyright infringement, namely;
i.
purpose and character of the use, which
provides that if the work is used for a commercial purpose and not for a
non-profit/educative motive, the use points to an infringement,
ii.
nature of the copyrighted work, denounces the
fair use defence in cases where the essence/character of the work is
replicated, for instance in case of a book, the idea may be same but the usage
of words/representation must differ,
iii.
amount and substantiality taken, it postulates
both quality and quantity of work copied/used,
iv.
effect on potential market for protected work,
it aims to determine the consequences of such usage of the copyrighted work.[22]
Fair use is one which connotes to a
‘normal exploitation’ of the work, one which is
not prejudice to the interests of the copyright holder. It is not a
License to use copyrighted work rather a Privilege.[23]
The doctrine is a product of the right to free speech. Earlier, the ‘right’ of
the speaker to express the idea in his own creative way weighed over the rights
of the copyright holder. However, the doctrine has been reinvented in the
modern times with Copyright burring the remnants of free speech, redefining it
as a pretext for piracy that aims to ‘excuse’ infringing
conduct.[24]
Unlike earlier, today, fair use stands as a limitation to the exclusive rights
of the owner.
‘Fair Dealing’ Doctrine
Unlike US, the common law
jurisdictions like UK, India, Australia, Canada, Britain, etc. follow a more
rigid version of a defence to copyright infringement called ‘fair dealings’.
The exception is governed by Section 52[25]
and 39[26]
of the CA, 1957. The two sections aims to provide an exhaustive list of fair
dealings, unlike the US Copyright doctrine of fair use which is affected by
judicial fluctuations on case to case basis. In the case of K Murari v. Muppala Ranganayakamma[27],
the court ruled that use of work which does not attract a direct pecuniary
benefit to the renter of the works will favour the defence of fair dealing.
International Copyright
With the growing age of
digitalization, expressions of ideas is not restricted to pen and paper. The
cyberspace, being borderless, often possess challenge of ownership and
jurisdiction, it thus is necessary to ensure that literary, artistic work,
cinematographic films, sound recording, videos, etc. which are original works
of creativity of a national are protected round the globe. An international
copyright is an epitome of such growing boundaries of IPR. There is no codified
international copyright law, the practices are rather an amalgamation of
domestic laws, customs and international treaties. An International Copyright
aims to protect the work of authors/makers beyond their territorial/
geographical borders.
In India, entire realm of copyrights
is governed by CA, 1957, International Copyright Order, 1999 and Copyright
Rules, 2013. The Government of India under its power to extend copyright
to foreign works as under Section 40
of the CA[28] had
passed the International Copyright Order on 24th March 1999. The order enforces
copyright protection to member countries of Berne Convention, Universal
Copyright Convention, Phonographs Convention and WTO, as if such works are
India, but only on a reciprocal basis. Moreover, Indian legislations provide a
two tier redressal mechanism for copyright and related infringements namely;
The Intellectual Property Appellate Board and the courts of law, i.e. both
civil and criminal remedies are available to the aggrieved.
India is also a signatory of a number
of such international conventions and treaties to promote copyright protection
of its nationals in foreign countries. All major international copyright
conventions and domestic laws like the Berne Convention of 1886, Universal
Copyright Convention of 1952, Section 40 of the Copyright Law of India runs on
the 3 major principles, namely:-
1. National treatment- This principle purports an equal treatment of signatories around all
the member countries i.e. each member country must treat the work of the every
member work with a protection equal to the treatment provided to its own
nationals.
2. Automatic protection- The principle calls for an unconditional protection of works i.e. no
country shall attach any preconditions for providing protection to the works of
other country.
3. Independence of protection- The principle provides for protection of foreign works in
member countries irrespective of the degree of protection given to the work in
the country of origination.[29]
Berne Convention
The Convention provides for a
guarantee to the nationals of member countries, an automatic protection, in as
much as the rights that the other country grant to its own nationals. Generally
the period provided for protection of literary works is 50 years from the death
of the author, with the only exception in the case of photography and
cinematography (added in the Brussels revision of 1948), where the protection
period of a photograph is 25 years from date of publication and for a
cinematographic film is 50 years from date of publication.
Apart from the common exclusive
rights of authorization like right to reproduce, right to translate, recite in
public, broadcast, etc., the convention also grants certain moral rights in the
form of right to object to any mutilation, deformation or other modification
of, or other derogatory action in relation to, the work that would be
prejudicial to the author's reputation. Limitation to these economic rights is
referred as ‘free uses’, for purposes like teaching, reporting, etc., is
envisaged in Article 9(2), 10, 10bis, etc.
Conclusion
The copyright law grants economic
rights to makers/authors to exploit their creations by further productions,
sale, rent, exhibition, etc. The differentiation between idea and its
expression have played a pivotal role in ensuring that the true purpose of the
law is upheld. Had such a classification not been made, it would have barred
new creators from using already founded ideas/themes/concepts in a better,
newer, and, developed manner and would have further led to an open space for
monopolization of ideas themselves. It is indeed this differentiation between
an ‘idea’ and an ‘expression of idea’ which pave the way of production of
remixes of Bollywood songs and sequels of old films in Indian literature.
In the view of Justice P. Somarajan,
copyright law does not prevent the world from using the same theme, if such an
use includes application of a unique way on the creators part.[30]
Article Information
The Evolution And Revolution Of Copyright Law:An Indian Perspective (By-Anisha Arya)
Authors: Anisha Arya
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/15
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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