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  2. 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
  3. 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.”
  4.  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.
  5.  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.
  6.  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
  7.  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
  8. 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
  9. 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
  10. • 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.
  11. 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.
  12. 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
  13. 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
  14. 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.
  15. The Idea-expression dichotomy & substantial copying RG Anand v. Deluxe Films Anil Gupta v. Kunal Das Gupta
  16. 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.”
  17.  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.
  18. 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.
  19. 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.
  20. 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.
  21. 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
  22. 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.”
  23. 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
  24. 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”.
  25.  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.
  26. 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
  27. 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