Copyright Law - Quiz 1

COPYRIGHT Week 3-6 INSTANCE - 1 INSTANC E-2 INSTANCE - 3 INSTANCE - 4 INSTANCE - 5  MEANING A means to protect WORKS Copyright protects creative works of the human mind. ORIGINALITY Where does it affix? IDEA gets converted to an EXPRESSION Automatic protection R...

COPYRIGHT Week 3-6 INSTANCE - 1 INSTANC E-2 INSTANCE - 3 INSTANCE - 4 INSTANCE - 5  MEANING A means to protect WORKS Copyright protects creative works of the human mind. ORIGINALITY Where does it affix? IDEA gets converted to an EXPRESSION Automatic protection Registration is not compulsory  HISTORY Copying, translation and Transcription – painstaking process England, Japan, India etc. - were all in the same boat Advent of the Printing Press Need for protection arose manifold Venice – first to grant privilege to print books England – London Company of Stationers Stationers’ Company --- Stationers’ Monopoly Author’s rights took a back seat Statute of Anne  HISTORY IN INDIA 1847 – East India Company 1914 - First Statute Inspired by Act of 1911 in UK Copyright Act, 1957  JUSTIFICATIONS Natural rights – based on morality – it is only right to provide protection for creations – personality theories Reward arguments – Copyright granted to reward the author Arguments based on the balance of speech v public – whether copyright is a vehicle to protect the expression of the author or restricts the expressive autonomy of others Incentive-based theories – utilitarianism Neo-liberal economics – private ownership of resources Democratic arguments – copyright needed to build an independent and pluralist character of the society Ethical Justifications Harm – due to unauthorized use Unjust Enrichment Creation Desert – deserving control Personhood – embodiment of personality Personal Autonomy – granting an individual control  Berne Convention Rome Convention Universal Copyright Convention INTERNATIONA L TRIPS WIPO Copyright Treaty WIPO Performances and Phonograms Treaty  ROME CONVENTION Signed in 1961 Secures protection in performances for performers, in phonograms for producers of phonograms and in broadcasts for broadcasting organizations. allows for limitations and exceptions to the above-mentioned rights in national laws protection must last at least until the end of a 20-year period computed from the end of the year WIPO is responsible, jointly with the International Labour Organization (ILO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO), for the administration of the Rome Convention. open to States party to the Berne Convention for the Protection of Literary and Artistic Works (1886) or to the Universal Copyright Convention.  SUBJECT MATTER OF COPYRIGHT Article 2(1) of Berne Convention – Literary and artistic Works To understand what is protected under Copyright Copyright – a tool to protect cultural goods Does not mean that it will protect the tangible products associated with these intangible creations called “works”- for example, CD, Cassettes, VCRs etc. Two forms of recording subject matter – open List and closed list US – Open List UK – Closed List India – follows the closed list approach  SUBSISTENCE IN WORKS - SECTION 13 Literary – Section Artistic - Section Dramatic - Section Musical - Section 13(1)(a) 13(1)(a) 13(1)(a) 13(1)(a) Cinematograph Sound Recording - Films - Section Section 13(1)(c) 13(1)(b)  LITERARY WORKS – S. 2(O) Titles not copyrightable in itself - Krishika Lulla & Ors. v. Shyam Vithalrao Devkatta Cr. Appeal No. 259 of 2013 Databases – Infopaq v Danske Dagblades; Football Assn. v QC Leisure Judgments Sermons of religious preachers Question papers - University of London Press v University Tutorial Press 2 Ch. 601 Dictionaries Computer programmes – case- by-case Author/ owner – person who causes such work to be created  University Of London Press V University Tutorial Press 2 Ch. 601 In this case, University of London appointed two professors – Prof. Lodge and Mr. Jackson to make examination papers of elementary mathematics. University of London Press intended to publish these examination papers. Herewith, the University did not appoint these professors for the full-time job, instead, they provided their “services” to the University. The defendant, University Tutorial Press Ltd, published various question papers three of them similar to that of the plaintiff’s examination papers. As a result, University of London press commenced legal action and the question of copyright arose. The key issue was whether question papers can be considered as literary work enjoying copyright protection?  University Of London Press V University Tutorial Press 2 Ch. 601 The court found that at the relevant time, the literary work included maps, charts, plans tables and compilation. To define ‘literary work’ the court relied on various precedents where the copyright granted to work other than literature. Besides the court noted that even question paper required compilation of question with the application of intelligence and reasonable consideration. Hence, the works concerned will be included in the ambit of ‘literary work’ even when it is not ‘literature’ as such. Further, another question emerged, namely, who had the ownership of copyright. The court answered that the press held the title to publish the papers. The University of London had actual ownership of papers. Finally, the defendant contended that the purpose of publishing the examination paper was for educational purposes and therefore they should be given exemption from the punishment. Ignoring the argument, the court gave a legal maxim – “What is worth copying is prima facie worth protecting”. Hence plaintiff enjoys the right over the question paper and defendant is liable for the violation of copyright.  DRAMATIC WORK - S.2(H) Drama Recitation Choreography Mime Scenic arrangement or acting form fixed in writing Originality is the threshold Authorship to the creator  MUSICAL WORK AND SOUND RECORDINGS Musical Work – S. 2(y) Sound Recording – S. 2(xx) Author/owner - Composer Owner - Producer Work consisting of music Recording of sounds from which Includes graphical notation of the such sounds may be produced same regardless of the medium e.g. jingles In certain circumstances, Literary + Musical work = Sound recording  Painting Sculpture ARTISTIC Drawing WORK – S. Engraving 2(C) Photograph Author/owner - Artist  CINEMATOGRAPHIC FILMS Edison – came up with a device to show moving photographs Lumere brothers – projector and the images in one device 20th Century celluloid films Studios emerged and became very big in USA Then – the ability to colorize, broadcast and digitally record Owner - Producer  Idea – Expressio Originalit n y Dichotom PRINCIPLES y OF COPYRIGHT Merger Fixation IDEA =/+ EXPRESSION ? IDEA – EXPRESSION DICHOTOMY Only Expressions can be protected Law does not property rights in Ideas There is no copyright in ideas, facts, schemes, system or method. In some instances, the critical difference between ‘idea’ and ‘expression’ is difficult to draw No court has tried to define either term Baker v Selden (US) Nichols v Universal 45 F.2d 119 (2d Cir. 1930) RG Anand v Delux Films AIR 1978 SC 1613 Mere Idea is not the subject matter of copyright Donoghue v Allied Newspapers SAS Institute v World Programming Ltd.  Baker v Selden - 101 U.S. 99 (1879) Plaintiff obtained a copyright for a book on the art of bookkeeping written by complainant and sued defendant, an author of another book on the subject, for copyright infringement. A decree was rendered for plaintiff, and defendant appealed. Plaintiff claimed defendant had infringed the copyright by using account books with columns and headings similar to those explained in the copyrighted work. Defendant appealed a decision from the Circuit Court of the United States for the Southern District of Ohio that rendered judgment for plaintiff as testator for complainant and held that defendant had infringed complainant's copyrighted treatise on the useful art of bookkeeping.  Baker v Selden - 101 U.S. 99 (1879) The key issue was ‘Did the defendant violate the copyright by using account books with columns and headings similar to those explained in the copyrighted work?’ The Court held that the record failed to show that defendant had violated the copyright and that the matter plaintiff alleged was infringed was not even a lawful subject of copyright. The Court drew a distinction between an author's original writing, which was a valid subject of copyright, and the art or practical knowledge explained by the writing, which generally was considered to be community property and was the subject not of copyright but of a patent if completely original to the author. The Court drew analogies from other areas of science and practical arts, such as medicine and mathematics. The Court reversed the judgment and remanded the cause.  NICHOLS V UNIVERSAL 45 F.2D 119 (2D CIR. 1930) The plaintiff is the author of a play, "Abie's Irish Rose," which it may be assumed was properly copyrighted under section five, subdivision (d), of the Copyright Act, 17 USCA § 5(d). The defendant produced publicly a motion picture play, "The Cohens and The Kellys," which the plaintiff alleges was taken from it. Plaintiff alleged that the copyright in her play, concerning a marriage between a Jewish man and an Irish woman and the resulting difficulties between both families, was infringed by defendant's movie about the marriage of an Irish man and a Jewish woman, also focusing on differences between their families. The court affirmed the judgment for defendant, finding the two stories were different as to incident and character, and thus there was no infringement. As for plots, the only matter common to the two was a quarrel between a Jewish father and an Irish father, the marriage of their children, the birth of grandchildren, and a reconciliation. The court found such theme was only a part of plaintiff's ideas, and therefore was not copyrightable.  NICHOLS V UNIVERSAL 45 F.2D 119 (2D CIR. 1930) ISSUE: Is there an existence of infringement in this case? The Court found that the plot of the second play was too different to infringe, because the most detailed pattern, common to both, eliminated so much from each that its content went into the public domain; and for this reason we said, "this mere subsection of a plot was not susceptible of copyright." But the Court does not doubt that two plays may correspond in plot closely enough for infringement. How far that correspondence must go is another matter. Nor does the court need to hold that the same may not be true as to the characters, quite independently of the "plot" proper, though, as far as we know, such a case has never arisen. These would be no more than Shakespeare's "ideas" in the play, as little capable of monopoly as Einstein's Doctrine of Relativity, or Darwin's theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.  The appellant, R. G. Anand, an architect by profession and also a playwright, dramatist and producer of several stage plays, wrote and produced a play called ‘Hum Hindustani’ in 1953. It ran successfully and was re-staged in 1954, 1955 and in 1956. Aware of the interest of the plaintiff in filming the play in view of its increasing popularity, the second defendant, Mr. Mohan Sehgal, contacted plaintiff. RG Anand v In January, 1955, plaintiff met the second and third defendants and had detailed discussions about the play Delux Films and its plot and the desirability of filming it. However, after this discussion, the plaintiff received no further communication from the second defendant. AIR 1978 SC In May, 1955, the defendants started to make the film ‘New Delhi’, which, the plaintiff gathered, was based on 1613 his play, “Hum Hindustani’. The defendant, however, assured him that it was not so. In September, 1956, the movie was released and after viewing it, the plaintiff filed a suit for infringement of his copyright in his play ‘Hum Hindustani’. His claims included damages, account of profits and a permanent injunction against the defendants restraining them from exhibiting the movie.  RG Anand v Delux Films AIR 1978 SC 1613 Whether the production, distribution and exhibition of the film ‘New Delhi’ made by the defendants are in infringement of the plaintiff’s copyright in the play, ‘Hum Hindustani’? Unless there is any substantial resemblance between the original work and the alleged copy, the play and the movie here respectively, in terms of scenes, incidents and treatment, and similarity between the two is so much that a reasonable man would consider the ‘copy’ to be more or less an imitation of the original, an infringement of copyright cannot be said to have taken place. The court held that the film produced by the defendants can not be said to be a substantial copy of the play and the defendants can not be held to have committed an act of piracy because of differences in story, theme, characterization and climaxes. Moreover, copyright can not be acquired in an idea; the idea being provincialism in this case. A copyright offers protection only to the expression of an idea and not the idea itself. The allegation by Anand that the defendants violated his copyright by copying his idea was held invalid.  RG Anand v Delux Films AIR 1978 SC 1613 The plaintiff could not prove that the defendant had committed a colorable imitation of his play. Where similarities between the copyrighted work and the copy are so many and the similarities between the two works are not coincidental, a reasonable inference of colorable imitation can be drawn. The court held that a case for infringement may be made out only when such infringement may be identifiable by a reasonable man; and, in this case, the court observed, that no prudent person could get an impression that the film appears to be a copy of the original play. The Supreme Court did not find any violation of copyright and dismissed the appeal. The fundamental principles established in the case with regard to infringement of copyright in case of substantial similarity still hold good.  DOCTRINE OF MERGER An unprecedented result of the dichotomy presented by idea and expression Idea and Expression – Intrinsically connected and expression is indistinguishable from the idea Certain ideas can be expressed in limited ways. When the use of an idea of procedure requires copying of a plaintiff’s expression, there is no copyright infringement. Courts have refused to protect the expression of an idea that can be expressed in a restricted manner because doing so would create monopoly in idea itself. Eg: rules of a game; Mattel Inc v Jayant Agarwala (Scrabble) Viewer matters – the effect produced on the mind should be considered – even with that there are certain expressions that are very common. Baker v Selden  ORIGINALITY In order to receive copyright protection, literary, dramatic, musical and artistic works must be original. Law affords protection to expressions that are fixed in a medium and are original. Originality is a threshold for attaining copyright protection, meaning a work will not be eligible for copyright protection without it. Does not mean original or inventive thought. Copyright is not concerned with the originality of ideas, but of expression of thoughts. However, the legislation says very little about what originality actually means. Therefore, what is original, for copyright purposes, is guided by facts and decisions from case law. “Originality” does not mean “first”; it merely means “independently created” rather than copied from other works. Intellectual Creation Filtering mechanism; Normative judgment Article 2(1) – Berne Convention UK – CDPA – Section 1(1) USA – Section 102(a) BEGINNING OF THE DOCTRINE  SWEAT OF THE BROW Sweat of the brow doctrine conferred copyright on works merely because time, energy, skill and labour was expended. Walter v Lane (1900) University of London Press v University Tutorial Press (1916) Ladbroke v William Hill (1964) USA – Jeweler’s Circular Publishing v Keystone Publishing (1922) The underlying notion was that copyright was a reward for the hard work that went into compiling facts.  WALTER V LANE (1900) A reporter attended a speech by Lord Rosebery. The Times newspaper reporters wrote down the notes of speeches given by the Earl of Rosebery, the then Prime Minister of the UK. While doing so, the reports added punctuation, revision and corrections to those speeches. His report of the speech was republished in the Times after another journalist who had not been present published a verbatim copy. He claimed a copyright in the work he produced. Then, the respondent published a book containing the speeches. But, the respondent used the Times Newspaper’s reporting as the source of the speeches and not the reporters themselves. Issue: Whether the reporters who reproduced the speeches could be considered as the authors under the Copyright Act 1842?  WALTER V LANE (1900) The House of Lords held that the reporters were authors of these speeches under the Copyright Act 1842. It found that the effort, skill and time were sufficient to make the reporters work original. The first journalist had copyright and was entitled to succeed. The House considered what was required to establish originality for copyright purposes. Copyright subsisted in reports prepared by shorthand writers’ consisting public speeches as ‘original literary’ works. The speeches were made by the Earl of Rosebery in public when reporters were present. The reporters made notes in shorthand, transcribed them, corrected, revised and punctuated them and published them in newspapers as verbatim reports of the speeches. A speech and a report of a speech are two different things. Lord Rosebery was the author of his speeches. The shorthand writers were the authors of their reports of his speeches. They spent effort, skill and time in writing up their reports of speeches that they themselves had not written. Even though the reporters had intended only to reproduce the speeches as accurately as they could, the works they prepared remained original works.  SHIFT IN PERSPECTIVE Sweat of the brow Modicum of creativity  MODICUM OF CREATIVITY Issues with Sweat of the brow – no one can copyright facts Under the above, the only defense to infringement was independent creation. By virtue of simple creation, rights could be granted. However, with modicum of creativity – paradigm shift in the concept of ‘originality’ Feist Publications v Rural Telephone (1991) (USA) CCH Canadian Ltd. v Law society of Upper Canada (2004)  FEIST PUBLICATIONS V RURAL TELEPHONE (1991) (USA) Rural Telephone Service Company, Inc. (Plaintiff) provided telephone service to several communities. Due to a state regulation, it must issue an annual telephone directory, so it published a directory consisting of white and yellow pages. The yellow pages have advertisements that generate revenue. Feist Publications, Inc. (Defendant) is a publishing company whose directory covers a larger range than a typical directory. Defendant distributes their telephone books free of charge, and they also generate revenue through the advertising in the yellow pages. Plaintiff refused to give a license to Defendant for the phone numbers in the area, so Defendant used them without Plaintiff’s consent. Rural sued for copyright infringement.  FEIST PUBLICATIONS V RURAL TELEPHONE (1991) (USA) Issue: Are the names, addresses, and phone numbers in a telephone directory able to be copyrighted? Facts cannot be copyrighted, however compilations of facts can generally be copyrighted. To qualify for copyright protection, a work must be original to the author, which means that the work was independently created by the author, and it possesses at least some minimal degree of creativity. A work may be original even thought it closely resembles other works so long as the similarity is fortuitous, not the result of copying. Facts are not original. The first person to find and report a particular fact has not created the fact; he has merely discovered its existence. Facts may not be copyrighted and are part of the public domain available to every person. Factual compilations may possess the requisite originality. The author chooses what facts to include, in what order to place them, and how to arrange the collected date so they may be effectively used by readers. Thus, even a directory that contains no written expression that could be protected, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement. But, even though the format is original, the facts themselves do not become original through association. The copyright on a factual compilation is limited to formatting. The copyright does not extend to the facts themselves.  CCH CANADIAN LTD. V LAW SOCIETY OF UPPER CANADA (2004) The Law Society of Upper Canada (LSUC) has a reference/research library offering a custom and self serve photocopy service. CCH Canadian (CCH) sues seeking a declaration of subsistence and ownership of copyright in 11 specific works, a declaration that LSUC has infringed on their copyright, and a permanent injunction preventing further copying. LSUC denies the infringement and files a counterclaim for declaration that copyright is not infringed when a single copy of a reported decision, case summary, statute, regulation or a limited selection of text from a treatise is made by the Great Library staff or patron for research purposes. Issues: Are publishers' materials "original works" protected by copyright? Did the Library authorize copyright infringement by maintaining self-service photocopiers and copies of the publishers' works for its patrons' use? Were the law society's dealings with the publishers' works "fair dealings" under s.29 of the Copyright Act?  CCH CANADIAN LTD. V LAW SOCIETY OF UPPER CANADA (2004) The publishers’ works are original and protected by copyright act. Applied a test for originality: The expression of an idea is an exercise of skill and judgment Must not be so trivial that it could be characterized as a purely mechanical exercise Creativity is not required for a work to be “original” Discarded Sweat of the brow doctrine – not “skill, labour and judgment” – but only “skill and judgment”  CONCLUSION A combination and balance of both is required to ascertain originality Sweat of the brow solely considered defeats the purpose of copyright Modicum of creativity, starting out as a mild difference, became a strict distinguishing factor However, to ascertain originality, it is based on a case-by-case analysis. Copyright works cannot be novel, they are original A balance between sweat of the brow and modicum of creativity required Eastern Book Company v. DB Modak (2008) 1 SCC 1  EASTERN BOOK COMPANY V. DB MODAK (2008) 1 SCC 1 The petitioners, Eastern Book Company, a partnership firm and EBC Publishing Pvt. Ltd. are together engaged in printing and publishing various books in the field of law. One such publication of the appellant is the law report called ‘Supreme Court Cases” ( also called as the SCC) - since 1969 - consists of all the reportable and non- reportable judgments, short judgments, orders, record of proceedings and directions of the Supreme Court. For the same, they procure Raw data (copies) of judgments from the office of registrar of the Supreme Court. The Law report used to publish copy edited versions of the judgments which include formatting, numbering, cross-referring and various other inputs to make it user friendly. It also includes inserting Headnotes, Long Notes, and footnotes. In 2004, the defendant Spectrum Business Support Ltd(Respondent 1) and Regent Datatech Pvt Ltd(Respondent 2) came out with a software called ‘Grand Jurix’ and ‘the Laws’ respectively publishing the same CD ROMs. They had been alleged to take the Appellant’s copy-edited version of the supreme court judgments as it is – hence constituting infringement of appellants’ exclusive right towards it.  EASTERN BOOK COMPANY V. DB MODAK (2008) 1 SCC 1 Before the Single Judge of the Delhi High Court - The Court after granting certain temporary injunctions ruled in favour of respondents after they applied for the vacation of the stay order saying that mere copying of supreme court judgments with some changes does not amount to originality and hence the work cannot be copyrighted. The Division Bench also ruled in favour of the respondents – because the ‘character of the judgment remains the same’ even after making corrections to it and ‘does not make it materially different’ from the original judgments. Issues: standard of originality with respect to derivative works; extent of copyrightable content The Supreme Court ruled in favour of the appellants. The court ordered the respondents to sell their CD-ROMs with their own Headnotes, footnotes and editorial and in no way, they should be a copy of the appellant’s work. It held that the derivative work should be more than just a copy of the original work and involve individual skill, labour, capital and a minimal level of creativity. In the said case the work is done by the author i.e. segregating the facts into separate paragraphs; adding paragraph numbering and indicating the concurring and differing opinion of the judges in a particular case requires a great measure of legal skill and judgment on the part of the author. Therefore, a higher threshold than ‘sweat of the brow’ but not as high as ‘modicum of creativity’  FIXATION Application of copyright - only if the work is fixed in a tangible medium Walter v Lane Requirement mentioned in Berne and Rome Convention Berne Convention – Article 2(2) Rome Convention – Article 13 and 14 UK – has a formality US- has a formality France – does not have this as a pre-condition India – fixation important – although not specifically mentioned in the Copyright Act EXPRESSION + ORIGINALITY = COPYRIGHTABLE WORK  DERIVATIVE WORK Consists of a contribution of original material to a pre-existing work to recast, transform or adapt the pre- existing work Skill, labour and judgement expended solely in the process of copying could not confer originality ‘Material change’ and not minor alteration Abridgement Translation THANK YOU