Fundamental
Requirements
Copyright Law
Originality
• Not the same thing as novelty
• C. Cunniah and Co. vs Balraj and Co. AIR1961Mad111
Two Standards
Sweat of the Modicum of
Brow creativity
• Sweat of the Brow
• Inspired by Lockean theory of IP
• Rewards industriousness
• University of London Press Ltd. Case vs. University Tutorial Press Ltd.
[1916] 2 Ch. 601
• Papers not copied
• Drawing from ‘common stock’ was not prohibited in copyright law.
• Similarity with questions in the book not a material factor if preparation involved “selection,
judgment, and experience.”
• What is worth copying is worth protecting.
• Sawkins v Hyperion Records (2005) approved Walter v Lane.
• If a newspaper reporter can get copyright in a faithful account of a political speech as
in Walter v. Lane [1900] AC 539 there was no reason why a musicologist should not claim
copyright in a faithful rendering of a classical score.
• Burlington home shopping (P) ltd. V Rajnish chibber 61 (1995) DLT 6
• A compilation of addresses developed by any one by devoting time, money, labour and skill,
though the sources may be commonly situated, amounts to copyrightable literary work.
• Modicum of Creativity
• American position
• More demanding
• independent creation + creativity
• Fiest Publications, Inc. v. Rural Telephone Service Company, Inc, 499 U.S.
340 (1991)
• The US Supreme Court held that the selection, coordination, and
arrangement of Rural's directory do not satisfy the minimum constitutional
standards for copyright protection
• Modicum of creativity requirement is not met
• The alphabetical arrangement is an old age practice and firmly rooted in
tradition and so common place that it has come to be expected as a matter of
course. .
• In case of a compilation the raw facts may be copied at will. This result is
neither unfair nor unfortunate. It is the means by which copyright advances
the progress of science and art.
• Eastern book co. v. D.B.Modak (2008)1SCC1
• Are Copy-edited court judgements copyrightable?
• To claim the copyright in a compilation, the author must produce the material
with exercise of his skill and judgment which may not be creative in the sense
that it is novel or non obvious, but at the same time it is not a product of merely
labour and capital.
• No doubt the appellants have collected the material and improved the
readability of the of the judgment by putting the inputs in the original text of the
judgment by considerable labour, but that does not give a flavour of minimum
creativity.
Idea-Expression Dichotomy
BAKER V SELDON,1879 US 99 (1879)
• Whether the exclusive property in a system of bookkeeping
can be claimed under the law of copyright by means of a
book in which the system is explained?
• ..there is a clear distinction between the book as such and
the art which it is intended to illustrate.
• that blank account books are not the subject of copyright;
and that the mere copyright of Selden's book did not confer
upon him the exclusive right to make and use account-books,
ruled and arranged as designated by him and described and
illustrated in said book.
Development of the doctrine
Strict Dichotomy Fused Boundaries
Stowe v. Thomas 23 F.Cas.201 (C.C.E.D.Pa1853) In Kalem Co. v. Harper Bros. 222 U. S. 55
(1911)
White-Smith Music Publishing Company v.
Apollo Company.209 U.S.1(1908) King Features Syndicate v. Fleischer, 299 F.
533 (2d Cir. 1924).
Nichols v. Universal Pictures Corp. 45 F.2d 119 (2d Cir. 1930) –
Abstractions Test
• Upon any work, and especially upon a play, a great number of
patterns of increasing generality will fit equally well, as more and
more of the incident is left out. The last may perhaps be no more
than the most general statement of what the play is about, and at
times might consist only of its title; but there is a point in this series
of abstractions where they are no longer protected, since otherwise
the playwright could prevent the use of his "ideas", to which, apart
from their expression, his property is never extended. Nobody has
ever been able to fix that boundary, and nobody ever can.
• "the less developed . . ., the less they can be copyrighted; that is the
penalty an author must bear for marking them too indistinctly."
• R.G. Anand v. Delux Films, A.I.R. 1978 SC 1613.
• The issue involved the copying of a film from a play, the main theme of the play
(hum hindustani) is provincialism and the prejudice of persons belonging to one
state against persons belonging to other states.
• The Court made it clear 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, arrangement and expression of the
idea by the author
• Similarities arising out of same subject matter or same idea would not amount to
copyright infringement.
• Anil Gupta And Anr. vs Kunal Dasgupta And Ors AIR 2002
Delhi 379
• Swyamvar v. Shubh Vivah
• Issue framed
• Whether the idea conceived by the plaintiffs of producing a reality TV
programme is a noval concept and same could be protected?
• An idea per se has no copyright. But if the idea is developed into a
concept fledged with adequate details, then the same can be
protected as a copyrightable subject matter.
Rationale??
In the modern day, when the small screen has taken over the earlier
means of mass communication like radio, idea/concept/script of a
broadcaster has wider potentiality of capitalizing revenue and if that
idea/concept or script is not protected then in a given case, where a
person has conceived an idea to be translated into the reality TV show
which could be key to its success with audience, the channels with their
enormous resources could always be in a better position to take the
idea/theme/concept from any author and then develop at their own end
and the original author of the concept will be left high and dry.
An idea per se has no copyright. But if the idea is developed into a
concept fledged with adequate details, then the same can be protected
as a copyrightable subject matter.
• Bikram’s Yoga College vs Evolution Yoga (9th Cir. 2015)
• Is Bikram Chaudhary’s sequence of yoga asanas copyrightable subject
matter?
• Choudhury … attempts to secure copyright protection for a healing
art: a system designed to yield physical benefits and a sense of well-
being. Simply put, this attempt is precluded by copyright’s
idea/expression dichotomy.
Merger Doctrine
• Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 1971)
• Mattel, Inc. and Others v Jayant Agarwalla and Others 2008.
• Scenes a faire doctrine –
• "obligatory scene," one the public "has been permitted to foresee and to desire
from the progress of the action; and such a scene can never be omitted without a
consequent dissatisfaction."
• A. A. Hoehling v. Universal City Studios Inc, 618 F.2d 972 ( 1980)
• Reyher v. Children's Television Workshop 433 F.2d 87 (2d Cir. 1976)
• “De minimis non curat lex”
• The de minimis principle has evolved from case law, and embodies the
requirement that a work possess a minimal degree of substantiality.
• Exxon Corporation v. Exxon Insurance Ltd, (1982) RPC. 69
