JAI NARAIN VYAS UNIVERSITY

INTELLECTUAL PROPERTY RIGHTS PROJECT FILE

SESSION: 2020-21

SUBMITTED TO: SUBMITTED BY:

DR. NITYESH SOLANKI YASHVEER GEHLOT
BBA LL.B VII SEMESTER

ROLL NO. 18BBL50033

 Acknowledgement
I would like to express my special thanks of gratitude to my teacher Prof. Nityesh
Solanki, who have me the opportunity to do this wonderful project. It also
influenced me in doing so much research and I came to know so many new things.
I am really thankful to him. Secondly, I would like to thank my parents and friends
who helped me a lot in completing this project within the limited time frame.
Question 1. "Novelty or intention or innovative idea is not the requirement for
protection of copyright but it does require minimal degree of creativity."

Originality, in the eyes of copyright law lies not in the idea or thought but the
representaton thereof. Analyze the above statement and discuss the proposition as
applicable to literary, musical, dramatic and artistic works.

Answer:-

1) Copyright is a right given by the law to creators of literary, dramatic,

musical and artistic works and producers of cinematograph films and sound
recordings. In fact, it is a bundle of rights including, inter alia, rights of
reproduction, communication to the public, adaptation and translation of the work.
There could be slight variations in the composition of the rights depending on the
work.

2) Section 13(1) of the Indian Copyright Act 1957 states that copyright
subsists in "original literary, dramatic, musical and artistic works." However,
the Act fails to give any definition or test to determine originality of a work. This
leaves the court with the duty to decide the amount originality required for a work
to claim copyright protection. Two tests are to be followed to decide the
"Originality" of a work:-

1. Non- copying requirement (completely objective test)

2. Threshold/Degree of originality(varies from court to court)

There are different doctrines used in different jurisdictions of law, which are
analyzed following:-
UK's Sweat of the brow doctrine

According to this doctrine, an author gains rights through simple diligence during
the creation of a work. The "sweat of the brow" doctrine relies entirely on the skill
and labour of the author, rendering the requirement of "creativity" in a work nearly
redundant. This doctrine was first adopted in the UK in 1900 in the case of Walter
v Lane,1 where an oral speech was reproduced verbatim in a newspaper report and
the question was whether such verbatim reproduction would give rise to copyright
in the work. Court held that the work has copyright protection.

In University of London Press v. University Tutorial Pressthe test of "originality"

was explained by the Chancery Division of England which is also commonly cited
as an archetypal "sweat of the brow". The Court held that the Copyright Act does
not require that expression be in an original or novel form. It does, however,
require that the work not be copied from another work. It must originate from the
author. The question papers are original within the meaning of copyright laws as
they were originated from the authors. The court held that merely because similar
questions have been asked by other examiners, the plaintiff shall not be denied
copyright. This doctrine is also followed in various other jurisdictions including
Canada, Australia and India.

USA's Modicum of creativity doctrine

USA has the oldest and the most developed Copyright laws in the world. The
courts have given importance to both the creative and subjective contribution of
the authors since the late 17th century. In Feist Publications, Inc. v. Rural
telephone Service Co.3 case, the US Supreme Court

totally negated this doctrine and held that in order to be original a work must not
only have been the product of independent creation, but it must also exhibit a
"modicum of creativity". This doctrine stipulates that originality subsists in a work
where a sufficient amount of intellectual creativity and judgment has gone into the
creation of that work. The standard of creativity need not be high but a minimum
level of creativity should be there for copyright protection. The major question of
law was whether a compilation like that of a telephone directory is protected under
the Copyright law? The court held that the facts like names, addresses etc are not
copyrightable, but compilations of facts are copyrightable. This is majorly owing
to the unique way of expression by way of arrangement and if it possesses at least
some minimal degree of creativity, it will be copyrightable. The Court held that
Rural's directory displayed a lack of requisite standards for copyright protection as
it was just a compilation of data without any minimum creativity, which was a
requirement for copyright protection. Hence, Rural's case was dismissed.

Doctrine of merger in India

The Supreme Court of India reviewed the concept of originality in detail

in Eastern Book Company and Others v DB Modak and Another (2007). Prior to
this case the Indian courts, implicitly, followed the English approach to originality.
The appellants in this case were the publishers of Supreme Court Cases (SCC), a
series of law reports which contains all the Supreme Court’s judgments. The
appellants alleged that the respondents, who had created software packages that
contained Supreme Court judgments, had copied the contents of their publication
verbatim.
The appellants copy-edited the raw judgments and provided various inputs such as
headnotes, cross-references, standardization and formatting of the text, paragraph
numbering, verification, etc., which in their view required considerable skill,
labour, expertise and expenditure. The appellants claimed that SCC constitutes an
“original literary work” under section 13 of the Copyright Act and the respondents
had infringed their right under section 14 by copying their work.

The Supreme Court interestingly diverted from its standard practice of following
the English sweat of the brow doctrine and adopted the view that “Novelty or
invention or innovative idea is not the requirement for protection of copyright
but it does require minimal degree of creativity.” Applying the “creativity”
standard, the court held that mere copy-editing of the judgment would not merit
copyright protection as this involves labour and nothing else. However, since some
creativity is involved in the production of headnotes, footnotes, editorial notes,
etc., these would qualify for copyright protection and the respondents were not
allowed to copy them.

The Supreme Court appears to have adopted a middle path and relied on the
judgment in CCH Canadian Ltd v Law Society of Upper Canada (2004), where
the Supreme Court of Canada took the view that the sweat of the brow approach
was a rather low standard to establish originality as it shifted the balance of
copyright protection mainly in favour of the owner as against public interest, and
the modicum of creativity standard was too high as “creativity” implied that the
creation must be “novel” or “non-obvious” and these concepts are mostly
synonymous with patents and not copyright.
Adopting a neutral approach the court held that in order to claim copyright
protection “the author must produce material with exercise of his skill and
judgment which may not be creativity in the sense that it is not novel or non-
obvious, but at the same time it is not the product of merely labour and capital”.

The Supreme Court clearly sought to establish a balance between the right of
authors to exploit their work and reap benefits and at the same time ensure the right
of the public to freely access copyrighted works. By departing from the sweat of
the brow doctrine, the courts discarded both the low threshold and the higher
threshold in favour of a middle-of-the-road approach. This would mean that each
case would be scrutinized on its individual merits to establish originality as per the
current approach.

3) Another very important principle for determining whether copyright exists is

"Originality, in the eyes of copyright law lies not in the idea or thought but
the representation thereof." The Supreme Court in the case of R.G. Anand V.
Delux Films, AIR 1978 SC 1613 SCC 118, held that similarities between play
and movie were not vast even though they both might be based on the idea of
‘Provincialism’ but they both are very different. The play only shows one side of
‘Provincialism’ during the marriage but the movie shows other sides also like
‘Provincialism’ during renting outhouses. The movie also shows the evil of dowry
which the play doesn’t depict. The Appellants claim was rejected by Court because
the Court held that there may be certain similarities because the idea in both movie
and play is the same but it is well-settled law that an idea cannot be copyrighted
and the Court relied upon N.T. Raghunathan& Anr. v. All India Reporter Ltd.,
Bombay. The Court held that if an ordinary person would see the play and the
movie he wouldn’t deem it to be a copy of the play. There are vast differences
between the play and movie and hence the Appellants claim that their copyright is
infringed cannot sustain. The Court upheld the Judgment of the Delhi High Court.
Thus, the Court decided both the issues in favor of the Respondents and held that
there is no infringement.

Ratio Decidendi-

 The Court held that there is no copyright in idea or plot but it is the way,
arrangement or expression of such an idea that can be copyrighted.
 If the source of the works is common, then some similarities are bound to
be there but the Court has to see whether such similarities are substantial
to constitute infringement or not.
 If an ordinary person after seeing the work in question calls it a copy or
replica of the original work then it is infringement.
 The theme can be the same but it has to be represented differently so that
it constitutes new original work.
 If dissimilarities are more than the similarities, it shows the negative
intention to copy.
 If there is clear evidence to show piracy then the violation of copyright
amounts to an act of piracy.

The decision of the Court, in this case, is a landmark in the field of Copyright. The
guidelines laid down by the Court in this case still hold good and are followed by
the Courts in India. This case holds that copyright does not subsist in and idea.
Even Section 13 of the Copyright Act, 1957 lays down 3 categories in which
copyright can subsist. All 3 categories are of works and an idea does not form part
of it. This decision was relied upon by Bombay High Court in MansoobHaider v.
Yashraj Films. This case was the first in India by the Supreme Court to decide
what constitutes infringement in copyright.
 BIBLIOGRAPHY
 https://www.mondaq.com/india/copyright/802134/doctrine-of-
originality-in-copyright.
 https://copyright.gov.in/Documents/handbook.html.
 https://law.asia/originality-concept-under-indias-copyright-regime/
 https://lawtimesjournal.in/r-g-anand-vs-m-s-delux-flims-and-others/