UNIT – II
SUBJECT-MATTER OF COPYRIGHT
by:
Urvi Shrivastava

SUBJECT-MATTER OF COPYRIGHT
 Sec 13 (1) :
Copyright shall subsist in original literary, dramatic,
musical & artistic work, sound recording and
cinematograph film
• The Act grants protection to original work need not
emanate from original thought and idea
• Originality in independent skill of expression, creative
labor, and judgment

ORIGINALITY
 Lord Justice Mansfield’s words in Millar v. Taylor where he
says,
“Because it is just, that an author should reap the pecuniary
profits of his own ingenuity and labour. It is just, that
another should not use his name, without his consent”
Personhood, Incentive and Locke Theory
University of London Press v. University Tutorial Press, 1916
the Court observed that original does not mean an inventive
or novel thought. A “work which is expressed in print or
writing irrespective of whether the quality or style is high is
original.”

 the first case where the issue of Originality was expressly
dealt with was Bleistein v. Donaldson Lithographing
Co, 1903
Plaintiff was George Bleistein, an employee of the Courier
Lithographing Company. The company had been hired
by Benjamin Wallace, owner of a traveling circus called
the "Great Wallace Show“ to design and produce a
number of posters to promote the circus. The posters
featured images from the circus, such as ballet dancers
and acrobats.
When Wallace ran out of posters, rather than ordering
more from the plaintiff, he hired the Donaldson
Lithographing Company - a competitor of the plaintiff - to
manufacture copies of three of those posters. Bleistein
sued Donaldson for copyright infringement. Donaldson
objected on the basis that the posters were merely
advertisements, and thus should not be considered
eligible for copyright protection.

 The poster was said to have copyright.
 The Court held that the quality of a work or the merit of a
work does not determine its copyright ability. What does is
whether the work is the author’s own or plagiarised
from somewhere
Walter v. Lane, 1900
The Court observed that the author must exercise his/her
own labour and skill in creating the work, for the work to
be afforded copyright protection.

 Sec 2 (o) of the Indian Copyright Act does not define the
term ‘literary work’ as such but it includes computer
programmes, tables and compilations including computer
databases
 Therefore, literary works are not limited to works of
literature alone, but include all works expressed in print or
writing (other than dramatic or musical works) also
includes symbols and numerals.
• In Shyam Lal Paharia v. Gaya Prasad Gupta
It was said that the work of literature not just in prose and
poetry, but anything in writing and coming in the
ambit of literary work
University of London Press v. University Tutorial Press,
1916

 Letters qualify as the kind of literature which is protected
by copyright law, wherein copyright in the letters vests in
the writer and not to the addressee.
 Titles, names, short phrases, and slogans are not
considered literary work, therefore no copyright subsists in
such.
 News is essentially facts, which are not copyrightable
subject matter. In the famous case of
Express newspapers v. News (U.K) 1991

Derivative works
 Abridgement of an author’s work means
 To express the thoughts, opinions and ideas expressed by
the author much more concisely in the compressed
language of the abridger.
 Therefore, an abridgement connotes to a new book. The
abridger being the author of such new book.
 Compilations as a form of literary work. Therefore, a
telephone directory, biographical notes of prominent
golfers published in a golf manual, a chemist’s catalogue
of drugs for sale are all copyrightable subject matter.
 Compilation: Originality is a matter of degree of amount of
skill, judgment, labour involved

DOCTRINE OF SWEAT OF THE BROW AND MODICUM OF
CREATIVITY
Doctrine of Sweat of the Brow –
• traditional approach to Copyright Protection
• according to this doctrine, irrespective of any creativity or
judgment, if it can be proved that the author has
expended considerable labour and expenses over the
making of his work, he is liable to get his work protected
by copyright.
• Mere industrious gathering of data and facts even when
such effort lacks imagination or judgment entitles the
“compiler” to get a copyright over his/her “product”
• Walter v. Lane

• The “Sweat of the Brow” doctrine can hence be thought to be one
which does not distinguish between an Author & a Publisher
and Work & Product
Modicum of Creativity/ Creativity Standard Doctrine
This doctrine has evolved with time and through various case laws.
It maintains that a work must possess some level of creativity to
be original and thus protected by Copyright.
Financial Information, Inc. v. Moody's Investors Service
Fiest Publications v. Rural Telephone Service Co
• ‘Eastern Book Co. V. Navin j Desai –
Defendant (“The Laws” and “Grand Jurix”) made CD-ROM of SCC,
plaintiff filed infringement of copyright suit
Court held that there was no copyright in the judgements as they were in
the public domain once published and changes such as spelling,
elimination or addition quotations are trivial and hence no copyright.

Eastern Book Company v. D B Modak
• The court rejected the sweat of the brow principle as the
doctrine had numerous flaws and created monopoly in
public domain materials.
• To support a copyright there must be a substantial
variation not trivial variation such as might occur while
translating to a different medium
• Sweat of the brow rewarded compilers for their efforts in
collecting facts with a de facto copyright to those facts.

SCOPE OF ORIGINAL LITERARY WORKS
 Books
 Judicial decisions
 Text-books
 Question papers
 Law reports
 Head note side or marginal note of a report
 Short-note of cases
 Business letters
 Forms
 Research thesis, dissertations, catalogues

COPYRIGHT IN EVENTS
• No copyright in facts or events which actually take place
Indian Express Newspaper (Bombay) Pvt Ltd v Jagmohan
Mundhara
Facts, information, natural phenomenon, Ideas and events
cannot have copyright

COPYRIGHT IN IDEAS, PLOTS & THEMES
Donoghue v. Allied Newspaper Ltd.
Facts - The Plaintiff was a famous jockey who was interviewed about his
adventures, which were subsequently used by journalist S. T. Felstead.
A series of articles called "Steve Donoghue's Racing Secrets,
Enthhhralling Stories of the Sport of Kings" was published in the 'News
of the World' newspaper about him. All articles were approved by Mr
Donoghue before publishing. Mr Falstead wanted to use further the
material which was published in these articles in another piece titled
"My Racing Secrets. By Steve" to be published in the newspaper
"Guides and Ideas", which was condensed parts from the older articles
and thus effectively creating new work. Mr Donoghue did not approve of
the publication of the new work. He then moved to the court for an
injunction restraining the publication of the aforesaid work alleging
infringement of his copyright
The idea however brilliant and however clever it maybe is nothing more
than an idea and is not put into any form of word, expressions, picture
or a play, there is no such thing as copyright in it at all, reducing it to
some tangible form is essential.

The Idea-expression dichotomy & substantial copying
RG Anand v. Deluxe Films
Anil Gupta v. Kunal Das Gupta

Mansoob Haider v. Yashraj Films Pvt Ltd
1. “There are two sons, one of whom is
adopted. One son suffers from a disability
wherein he has only three fingers. Their
father (the putative father of one of the two
sons) was a magician. The natural son
resents his parents doting on the adopted
son. One son is a successful crime
novelist. The father is killed. The natural
son attempts to “frame” the adopted
successful son by contriving a series of
murders that follow almost exactly those
described in his crime novels. A police
detective and his assistant attempt to
track down the real killer. The identities of
the two brothers are confused. A telling
wound on one is not seen on the other.
The script culminates…… in an exchange
between two brothers.”
2. “A magician in American has twin
sons…Their father is also a magician. He
commits suicide because a bank refuses to
defer repayment of his dues. The film moves
ahead by several years (also said by the
Plaintiff to be a feature common to his script).
Several decades later the bank is repeatedly
robbed. An inspector and his assistant from
India attempt to capture the thieves. It is then
later revealed that the thief has a twin, and that
the two twins together have been robbing the
bank, and using the money to revive “the Grea
Indian Circus” that was once their father’s
dream. In this film too, a wound on one brothe
is not seen on the other. Despite an attempt to
drive a wedge between them, the two brothers
remain united to the end.”

 Judgement - Where, on the other hand, it is
demonstrable that the two works are materially
different in what they intend to portray and the
manner in which they do it, the coincidence of
certain elements, especially if they be of the ‘scene
a faire’ (that which must be done) variety, will not
constitute copyright infringement.
 The judgment re-affirmed the principles laid out in
R.G. Anand.

Thomas Walker v. Time Life Films Inc., 1985
A U.S. case from the Second Circuit Court where the Court has
made observations on what constitutes ‘scenes a faire’. In
that case, the appellant, Walker, an officer once posted in
South Bronx as a lieutenant for a year, published a book
based on his experiences titled “Fort Apache” that narrated
the harrowing impressions of myriad crimes, ranging from
murders to robberies and draws a social pattern of South
Bronx. The Defendants’ company contracted with another
person to write the screenplay for a film titled “Fort Apache-
The Bronx”, which also related to the crimes occurring in
South Bronx.
In a suit for copyright infringement filed by Walker, the Court
held that elements such as drunks, prostitutes, vermin and
derelict cars would appear in any realistic work relating to the
occupation of policemen in the South Bronx. These
similarities were, therefore, held to be not protectable as per
the “scenes a faire” doctrine.

Nichols v. Universal Pictures Corp., 1930
Facts:
 The plaintiff, playwright Anne Nichols,
was the author of Abie's Irish Rose, a 1922
play about a young Jewish man who
marries an Irish Catholic girl against
the wishes of both of their fathers,
with hilarity ensuing. The defendant then
produced The Cohens and Kellys (1926),
a film based on a play about an Irish boy
who marries a Jewish girl from feuding
families. A lawsuit followed, with the
plaintiff asserting copyright infringement
based on the defendant's use of similar
story elements.
 The question before the Court was whether the defendant's film
infringed the plaintiff's copyright in the play by using similar
elements.

Judgement :
Judge Learned Hand, writing for the Court, noted that
protection of literature cannot be limited to the exact text, or
else an infringer could get away with copying by making
trivial changes. The question then is whether the part taken
was 'substantial'. However, it is impossible to set a firm
boundary demarcating the line between work and ideas, he
said, stating, "her copyright did not cover everything that
might be drawn from her play; its content went to some
extent into the public domain." In this case, there was no
infringement, as the ideas that are copied are really universal
concepts and stock characters.

MERGER DOCTRINE
 The doctrine of merger provides that when the expression
is the idea, and vice-versa, and there is only one way to
express the underlying idea, the idea will merge with the
expression as to make them indistinguishable.
Consequently, the expression becomes non-copyrightable.
 Mattel v. Jayant Agarwalla, 2008
The facts of the case are generally well-known. Essentially,
the Court was requested by the plaintiffs (the
manufacturers of the popular game ‘Scrabble’) to issue an
injunction restraining the defendants (the makers of the
online game ‘Scrabulous’) from infringing the copyright

The plaintiffs argued that the game was an ‘artistic work’
under copyright law; and claimed that “… the defendants
have infringed (the plaintiffs’) copyright in the game board
and the rules. By use of red, pink, blue and light blue tiles
and the use of a star pattern on the central square … the
defendants have infringed (the plaintiffs’) copyright in the
game board which is an artistic work.”

Copyright law protects the expression of an idea, and not
the idea itself. The doctrine of merger applies when a
particular idea has so few forms of expression that
protecting the expression would actually mean that the
idea itself was being protected
Court cited the case Atari v. North American Philips, 1982.
In that case, the Court had held that copyright protection
would not extend to games as such, because the idea
behind the rules of a game finds expression in
extremely few forms, leading to the application of the
doctrine of merger.
Relying on this, Justice Bhat concluded that the copyright
protection claim could not succeed

Fictional Characters
Protection is granted to a fictional character only when the court
is made to believe beyond doubt that the characters are well
delineated.
Universal City Studios v. Kamar Industries, 1982
The Character ET was held Copyrightable because of it being
unique and distinctive character about whom the movie
revolved.
In Arbaaz Khan Vs. North Star Entertainment Pvt. Ltd, 2016 the
copyright in the character “Chulbul Pandey” was discussed.
The Bombay High Court opined that “As to the general
principle that the character is unique and the portrayal of that
character, as also the “writing up” of that character in an
underlying literary work is capable of protection is something
that I think I can safely accept”.

 Mickey Mouse, James Bond, Harry Potter, Charlie
Chaplin can be said to be such characters which can
have copyright protection.
 Character merchandising could be another reason
for such protection.
Computer Programmes (Sec 2(ffc)) –
Computer is any electronic or similar device having
information processing capabilities
Computer programme is a set of instructions expressed in
words, codes, schemes or in any other form including a
machine readable medium, capable of causing a computer to
perform a particular task or achieve a particular result.
Must be ‘original’ and ‘recorded’ in writing.

Dramatic Work (Sec 2 (h))
“dramatic work” includes any piece for recitation, choreographic work
or entertainment in dumb show, the scenic arrangement or acting,
form of which is fixed in writing or otherwise but does not include a
cinematograph film
Musical Work (Sec 2 (p))
“musical work” means a work consisting of music and includes
any graphical notation of such work but does not include any
words or any action intended to be sung, spoken or performed
with the music

Sec 2 (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) work of architecture; and (iii) any other work of
artistic craftsmanship
Sec 2 (xx) “sound recording” means a recording of sounds from
which such sounds may be produced regardless of the medium on
which such recording is made or the method by which the sounds
are produce
Sec 2 (f) “cinematograph film” means any work of visual recording
5 [***] and includes a sound recording accompanying such
visual recording and “cinematograph” shall be construed as
including any work produced by any process analogous to
cinematography including video films