By Sahib Gambhir
What is copyright and what does it protects? Copyright basically is a form of intellectual property law, which protects original works of authorship that includes literary, dramatic, musical and artistic works such as songs, poetry, novels, music, etc. important point here is that copyright does not give any protection to ideas, facts, systems, or methods of operation, although it may protect the way these things are expressed. Indian copyright act 1957, under the section 13(1) states that the copyright exists only in, “original literally, dramatic, musical and artistic work.”
ARTISTIC WORK
Section 2(c) of the Indian Copyright Act defines artistic works as:
“(c) “artistic work” means,— (i) 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; (ii) a [work of architecture]; and” (iii) any other work of artistic craftsmanship;”
The definition of artistic work is given under section 2(c) of the act. And to enjoy protection as an artistic work, the prerequisite which the work has to first satisfy is ‘originality’ as defined in the act.
There is no requirement of any artistic quality; therefore anyone who can paint an original art work can be entitled to copyright protection from the time the art work is created by them. Here important point is that it doesn’t matter that the painting of the painter is good or not.
- “Work of architecture” it means that any structure or building which may have an artistic character or design, or any model of such structure or building which may be given as under Section 2(b). Works of architecture are also protected as artistic work as long as they are originating from the author, i.e., the architect. Architectural drawings, diagrams, charts, maps, plans, and even circuit diagrams are all protected as artistic works.
- However, one must take note that the building or structure which constitutes a work of architecture is built on the basis of a plan which enjoys separate copyright apart from the copyright in the building itself.
- “Photograph”: A photographic works is work which includes any photo lithography or any other work which may be produced by any process analogous to photography, the important point here to note is that it should not include a part of cinematographic film. Another requirement to attract copyright is originality of photograph and some degree of skill and effort must have been expanded on it. When a photograph is of some common place them it is logical that it will be open up to whole world to take such similar photo but when the photographer has extended some skill and time arranging the grouping of the figures, the lightning and so on then there may be infringement of copyright if someone deliberately repeats the process to take such photo.
- “Engravings”, its definition is iven under Section 2(i) of te Copyright Act, and it includes etchings, lithographs, wood-cuts, prints and other similar works, not being photographs.
RIGHTS CONFERRED IN A COPYRIGHTED ARTISTIC WORK:
Section 14 of the Act gives and elaborates different kind of rights which are conferred and available to each kind of work. Sub section (c) of Section 14 talks about rights conferred in the case of artistic work; every artistic work has a right to reproduce the work in any material form which may include depiction in three dimensions of two dimensional works or in two dimension of three dimensional work; Right to communicate the work to public; Right to make adaption of the work; Right to include the artistic work in any cinematography films.
When any one makes or develops any new work, they get copyright protection to make sure that their efforts are doesn’t go in vain and they get the profit which they deserve. Copyright is an exclusive right which gives its owner bunch of rights like, reproduction, adaptation, communication and translation.
When these exclusive rights of the copyright holder are violated then it amounts to Copyright infringement. The unauthorized or prohibited use of works under copyright such as the right to reproduce or perform the copyrighted work, or to make derivative works, will also amount to Copyright infringement and to prove copyright infringement in court of law, a copyright owner must establish proof of copyright ownership and proof of copying by direct evidence of copying or by indirect evidence showing access to the original work; and “substantial similarity” between the original and allegedly infringing work.
Section 51 of the Copyright act, 1957 gives the statutory definition of the Copyright infringement: Copyright in a work is deemed to be infringed-(a) when any person without a license from the owner of the copyright, or the Registrar of Copyright, or in contravention of the conditions of a licence granted or any conditions imposed by a competent authority under the Act: (i) does anything, the exclusive right to do which is conferred upon the owner of the copyright, or (ii) Permits for profit any piece 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, (i) makes for sale or hire, or sells or lets for hire or by way of trade displays or offers for sale or hire any infringing copies of the work, or (ii) distributes, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, any infringing copies of the work, or (iii) exhibits in public by way of trade any infringing copies of the work, or (iv) imports into India any infringing copies of the work except one copy of any work, for the private and domestic use of the importer.
LANDMARK JUDGEMENTS RELATED TO COPYRIGHT INFRINGEMENTS:
R.G Anand v Deluxe Films:[1]
This case is the landmark case as in this case Supreme Court very carefully examined and elucidated various authorities and case laws, and following propositions were evolved:
- Copyright does not give any protection to ideas, facts, systems, themes, plots or methods of operation, although it may protect the way these things are expressed, arranged or the way copyright is formed.
- Where the idea is same but is being developed in a different manner, the similarities are bound to be there as the source of such manifestation is common. In such instances courts look that whether or not the similarities are on fundamental or substantial aspects of the mode in which that expression of copyright work is adopted. In simple words it means that in order to take action the copy must be substantially or materially same to the copyright work which would mean that the defendant is guilty.
- One of the best, safest and fastest way to determine that whether the copyright work has been infringed or not is to look that when the reader, spectator or the viewer after looking at that work is clearly of the opinion and are absolutely sure that the subsequent work is a copy of an original copyright work.
- When the theme is same but the way it is presented is so different that the subsequent work can be looked as new work, then no infringement of copyright.
- Material and broad dissimilarities also helps in proving that there was no intention to copy original work.
- A violation of the copyright must be proved by showing clear and cogent evidence and after applying various case laws and tests aid down for this purpose.
Eastern Book Company v. DB Modak[2]:
Indian copyright act 1957, under the section 13(1) states that the copyright exists only in, “original literally, dramatic, musical and artistic work.” But at the same time this act also fails to give any definition or any test regarding that how to determine the originality of the work. This means that it is on the courts that how to decide the originality of the work done. Originality is not applied in literal sense and as there is no single or definite definition of the originality concept, it is defined using different doctrines in different jurisdictions.
India used to follow the doctrine of sweat of brow very strongly for a very long period of time. The Supreme Court of India while following the English courts judgements observed that this copyright law is not preventing a person from taking something useful from an original work with some additions and improvements. The court has held in India that neither the original thought nor the original research is important for claiming copyright protection in India, but this position of India shifted in the case of Eastern Book Company v. DB Modak.
In this case Supreme Court introduced the idea of “flavour of minimum requirement of creativity”. The court held that in order to prove copyright, the standard of creativity applied is not that it must be novel or non-obvious but it should show some amount of creativity in order to get copyright claim. Therefore court said that the inputs which were made by the editors of SCC can be given copyright as the task done by the editors requires some legal knowledge, skill and judgements. Thus this exercise and creation of such inputs have a flavour of minimum requirement of creativity and will get the copyright protection.
In subsequent cases after this the Indian courts used this method. Important point here is that this does not mean pushing the expectations of standards of originality at a very high level, but this brings a subtle balance between making sure that the efforts of the author are rewarded and reasonable standard in the material is maintained and protected under the copyright law.
Cadbury India Ltd. V. S.M. Dyechem Ltd[3].
In this case court while dealing with the issue of infringement of copyright of artistic work, used and evolved the “lay observer test”, which is relies on the assumption that if the lay observer, one who is not an expert in artistic work, looks at the visual and it seems to him the work has been reproduced from some other work then it would to infringement of artistic work
Burroughs W.I. LTD v. UNI-SOLE Ltd.[4]
In this case plaintiff asked for injunction against the defendant from using the carton as the photograph in the carton is same as the photograph used in the carton of plaintiff. The plaintiff asked the court to refer the judgement in the Hindustan Lever’s case, where injunction was granted even when the artistic work was not registered. The court here adopted basic ratio of the judgement of Hindustan Lever’s case[5], court said it will look into the substantial similarity between the two cartons both in nature of get up and colour combination and essential similarity is the test and the actual reproduction of the two cartons is not a test. If this essential similarity test is satisfied then minor dissimilarities doesn’t affect the case of plaintiff.
Microfibres v Girdhar & Co[6]:
This is the landmark case which gave the difference between the design under design act and artistic work under copyright act, 1957.
When businesses consider protecting the aesthetic features they typically look towards copyright protection. It is important to note here that the design registration and copyright protection cannot exist simultaneously because of section 15(1) of the copyright act 1957. And if an article which can be registered under the both but is reproduced more than 50 times by an industrial process then according to section 15(2) of the copyright act, the copyright protection automatically ceases. If this is the case and the design is not registered in India, then in no case it can be protected against the imitation by the competitor.
It was argued in this case that copyright protection lasts much longer than protection under design act that is why if a piece of art purely translates an artist’s vision into canvas then it will be an artistic work and should be protected under the copyright act. However, the important point here is that if someone creates art with the aim of mass commercialization, then it is no longer an artistic work but a design that is entitled a lesser period of protection. If your works come within the design category then the protection must be taken by registering the Design Act. And if you in case miss out on the statutory design protection then in that case copyright act offers you relief under section 15(2) which will protect copyright in such design until 50 reproduction of that design is made through an industrial process. And on 51st reproduction, copyright ceases.
The court in this case tried to explain the facts with the help of the case study “Company ‘A’ creates some original, artistic patterns and uses these as prints for upholstery fabrics. Company ‘B’, also in the business of manufacturing and selling upholstery, comes out with similar prints on its fabrics. This leads ‘A’ to alleged copyright infringement and passing off; ‘B’ counters that the works of ‘A’ are not artistic works worthy of copyright protection, but rather design it ought to have registered under the Designs Act.”
The court here gave the reason that artistic work which is created for independent existence can be differentiated from the work which is created for application on another article through an industrial process. The object behind making work is very important for deciding the nature of protection which will be applicable. For example, a painting created by a well-known painter will have an independent existence and have copyright protection whereas drawings created for application to the fabric and had no other reason for independent existence will be categorized as design.
Amar Nath Sehgal v. UOI[7]
In this case the court said that, every author has a soul to his work which is called moral rights, which basically means that author has a right to protect, preserve and nurture his creations through his moral right. These moral rights help the author to preserve the personal link which he has between himself and his work.
In case court firstly stated that in India copyright act protects these moral rights under the concept of Authors Special rights which he has under section 57 of the Act. This basically means that these moral rights are separate from economic rights and they still remain with him even if he transfers his economic rights to someone else either through assignment or licensing. Therefore every contract of transfer is subjected to these special rights.
The Court secondly stated that the said art work in present case, i.e. mural, was moved without prior permission of the author and while it was moved the art work also suffered some damages. The court considered this moving of art work away from the eyes of public, prejudicial to the author’s honour or reputation and damages was awarded.
MansoobHaider versus Yashraj Films Pvt. Ltd.,[8]
In this case court said that a copyright owner of artistic work can prove that his work has been copied by alleged infringer through following ways,
- Mechanical copying: the owner of copyright work can prove copying be simply showing that the infringer has mechanically copied his or, for example infringer made copies of his work on a compact disc.
- Direct evidence of copying: when the defendant directly admits or there is sufficient proof that it can be seen directly that the work has been copied.
- Proof of access to copyrighted work coupled with probative similarity: in some cases direct evidence that the work has been copied is not available then in that case we see that whether the access can be indirect or can be direct and the similarity in their work is substantial enough or not to lead an interference in work.
- Common errors: another good way of proving that the work has been copied is to show that the defendant has also copied the mistakes or the errors which were there in the original work.
[1] AIR 1978 SC 1613
[2] (2008) 1 SCC 1
[3] (2000) 1 Raj 125 at p. 135
[4] 1973(3) Mh.L.J. at p. 11 & 12.
[5] Hindustan Lever Ltd. v. Nirma Pvt Ltd., AIR 1992 bom 195
[6] (2006)32 PTC 157 (Del.) and on appeal (2009)40 PTC 519 (Del.)(DB.)
[7] (2002) 63 DRJ 558
[8] Notice Of Motion (L) No. 502 Of 2014 In Suit No.
219 Of 2014 before the High Court of Bombay