The essence of Copyright law is that copyright protection subsists only in an author’s original expression of an idea and not in the idea itself. This is well known as the ideaexpression dichotomy and is at the centre of adjudication of every copyright infringement. Despite general guidelines being laid down by judicial precedents, the assessment ultimately depends on the facts and circumstances of each case and the Courts are tasked with discerning whether the subject matter being enforced is an original expression or merely an idea.
2. IDEA-EXPRESSION DICHOTOMY
Creativity can stem through eons of possibilities of a single idea, i.e., an idea can have several interpretations and several expressions. Hence, expressions of a single idea by different artists independently can lead to a plethora of completely different original creations. Therefore, monopolizing an idea can hamper the creativity of the society. Monopolizing an idea may even impact the productivity of various industries such as those related to publishing, entertainment and Information Technology.
Copyright laws protect the originality of an expression of an idea and do not seek to protect the originality of ideas. In the U.K. case of Donoghue v. Allied Newspaper, Ltd, it was observed that if the idea is not put into any form of words or any form of expressions such as a picture or a play, however brilliant and however clever it may be, is nothing more than an idea and is not copyrightable. It was held that until an idea is reduced into writing or some other tangible form, no copyright protection may be granted. It was thus held that the copyright exists in the particular form of the information or idea in which it is conveyed, such as, or, in the case of a picture, in the particular form of the picture by which, the information or the idea is conveyed to those who are intended to read it or to look at it.
The Division Bench of the Calcutta High Court, in Barbara Taylor Bradford v. Sahara Media Entertainment Ltd. held that the law of copyright protected originality of expression, and not the originality of the idea behind it. The impetus behind such an observation was to provide a balance between two conflicting schools of thought, i.e., to protect the originality in the idea of the work to avoid tactful workarounds around the original work, or to provide no monopoly over original work to unleash the subsequent creativity. The idea-expression dichotomy meets this schools midway and provides a balance that ensures that the author can exploit economic benefits from his/her creations, but at the same time, ensure that there are no unnecessary curbs on future creativity stemming from the same idea.
Simply put, dichotomy means two distinct groups whose characteristics are mutually exclusive to each other. Hence, the works can be sorted into two mutually exclusive groups, wherein one group will be composed of works which are merely an idea devoid of any expression of such idea and the other group will relate to works which are an expression of an idea. Accordingly, to assess whether a work is worthy of being deemed copyrightable, the Courts will pass it through the sieve of idea-expression dichotomy, and while the former group would be deemed as not copyrightable, the latter group will be able to enjoy the protection of Copyright laws.
3. ORIGINALITY IN CINEMATOGRAPH FILMS
Before the Copyright Act, 1911, there was no statutory provision that dealt with cinematograph films. Producers had to rely on common law or the then existing categories of statutory copyright law. A cinematograph film during those days was protected as a series of photographs. It was by virtue of the revised text of 1908 of the Berne Convention that cinematograph films were recognized as a new art form. Subsequently, the Copyright Act 1911 for the first-time accorded films copyright, in their own right. At present, section 2(f) of the Copyright Act, 1957 (“Act”), defines cinematograph film to mean any work of visual recording which includes a sound recording and also embraces any work produced by any process analogous to cinematography including video films.
The idea-expression dichotomy plays an integral part when it comes to cinematographic creations. For instance, an idea of a police officer, wearing aviators, fighting criminals can be expressed in a number of ways without infringing another’s copyright work. Therefore, for example, leading characters in Hindi movies such as Singham, Simba, Sooryavanshi, and Dabangg are all original expressions of a similar idea or theme.
Though on first blush, the concept of idea-expression dichotomy seems easy to grasp, however, it is often difficult to separate an idea from its expression due to “an inherent difficulty in seeing the two as different from each other.” Copyright disputes related to films and TV shows are subjective given the unique facts and circumstances in each case. The findings of the Madras High Court in C. Cunniah and Co. and Ors. v. Balraj and Co. and Ors. while dealing with a question as to whether the Respondents’ movie was a colourable imitation of the Appellant’s movie, reiterated the observation made in Hanfsataenglc v. W. H. Smith and Sons , wherein Justice Kekewich defined copying as that “which comes so near to the original as to suggest that original to the mind of every person seeing it.” The Court expanded the said test and stated that the most pertinent consideration is that of the degree of resemblance between the works, which if looked at subsequent work suggests as if looking into original work, will lead to the conclusion whether the work is copied or not. It should be noted that it is an intricate work for Courts to perceive work with the eyes of many and not colour it with their own.
The task of adjudicating such matters was further clarified by the Supreme Court in R.G Anand v. M/S. Delux Films & Ors by laying down detailed guidelines. This seminal case subsequently formed the basis for adjudication by various High Courts. The Apex Court in this case made a comprehensive review of precedents regarding the idea-expression dichotomy both in India and in the UK and laid down the following:
▪ There can be no copyright over an idea, and thus a copyright cannot be claimed over subject matters, themes or plots. However, an artist/creator can claim copyright over an original expression of the said ideas.
▪ In case of two materials sharing similar themes, they are bound to have similarities. In such case, the Court should seek the answer to whether such similarities are on fundamental or substantial aspects of the mode of expression. However, weightage has to be given to whether there are any broad dissimilarities which negates the intention to copy of the original. If there are any such dissimilarities, then no cause of infringement arises.
▪ Consideration has to be given to whether the spectator or reader after seeing or reading both the works is of the opinion that the subsequent work is copy of the original.
The test laid down in the RG Anand case has been applied by many High Courts and in doing so they have expanded the horizon of the said case. One such case is Anil Gupta and Ors. v. Kunal Dasgupta and Ors. . In this case, the Plaintiff devised an idea of a reality serial titled ‘Swayamvar’. The series was based on the premise of matchmaking before a television audience. The matchmaking involved a woman selecting a groom among many suitors in the show, wherein an anchor mediates the process. The Defendant launched a similar program named ‘Shubh Vivah’, against which the Plaintiff contended violation of copyright and alleged to have suffered huge losses. The Delhi High Court held that an idea per se has no copyright, but if the idea is developed into a concept fledged with adequate details, then the same is capable of registration under the Act and that the laws must ensure that persons who create an original work based on an idea/concept or theme are rewarded for their labour. Accordingly, the Defendants were restrained from televising the TV show “Shubh Vivah”.
In the abovementioned case, the Court granted protection to a work involving a mythological theme “Swayamvar” from Ramayana on the count of the creator developing the idea into a reality tv show with adequate details. On the other hand, The Bombay High Court in Sameer Wadekar & Anr v Netflix Entertainment Services Pvt. Ltd. , where the works of both the Plaintiff and Defendant were inspired by mythological stories of ‘Vetalam’, refused to grant interim relief. Despite the Plaintiff claiming 13 similarities in the 146-second-long trailer of the Defendant and that of the Plaintiff’s, it is intriguing that the Court limited itself only to the reason concerning the title of both conflicting works rather than drawing differences between the two works in question. The Court could have taken into account characters, scènes à faire and other significant elements of the theme as laid down in RG Anand Case. Though, the Court made it aptly clear that no injunction can be sought on a work that involves mythological characters or stories, as these are known to the public at large. However, it would have been more insightful had the Court made a comparison among all the three works, drawing similarities and differences among them to exercise the doctrine of idea-expression dichotomy.
In some cases, the Courts have added another dimension to the dichotomy by considering the details webbed among the substantial elements of a work while adjudicating infringement suits. This can be seen in the case of Mansoob Haider v. YRF Films , wherein the Plaintiff instituted a suit claiming that “Dhoom 3” produced by the Defendant infringes the Plaintiff’s copyright in the script “Once”. The plot of “Dhoom 3” revolved around the suicide of a magician due to his inability to pay off loans to the bank. The deceased had twin sons, with one having a certain disability, which is revealed later in the movie as suspense. The twins take revenge by robbing multiple branches of the same bank. “Once” had several similar features as that of the movie “Dhoom 3” such as; similar-looking sons with one having a certain disability, though one of them was adopted and this movie also had a deceased magician father. The Court pointed out that both the stories had few similarities like a magician father having two sons who resemble each other and that such expressions were not original but had a common theme. The Court, reaffirming the findings of the RG Anand case rejected the application for interim injunction and observed that the infringement will exist in cases where identity between the two works is substantial. Whereas, it has to be seen whether the appropriation by the Defendant is of a substantial or material part of the original work. Careful consideration has to be made that copyright is not granted over standard or stock incidents, such as those that abound in everyday life, mythological stories, history.
Similar findings as that in the Anil Gupta Case can be seen in Shivani Tibrewala v. Rajat Mukherjee , where the Plaintiff in the suit alleged that the Defendant had substantially reproduced the Plaintiff’s script called “The Laboratory” in his cinematographic work named “Umeed”. The contours of both the works pertain to an evil pharmaceutical corporation indulging in malpractices in the form of harmful drug testing on poor people without their valid consent. The Court observed that both the works have a common theme. However, the feature of lack of revenge on the part of the protagonist is one of many elements which set apart the Defendant’s work from that of Plaintiff. Further, the Court observed that in the case of infringement of copyright, the Plaintiff is not required to prove that the entire work is copied but has to show that substantial copying of the work was undertaken by the Defendant. Moreover, the Court pointed out that, the focus should be on whether the substantive part or the kernel of the Plaintiff’s work was copied. In finding out the answer to the said question, the Plaintiff must show, that deleting such substantive part of its work will render the Defendant’s work meaningless. The Court highlighted that the work of the “rival work must be compared as a whole and not dissected into small fractions bearing no originality on their own.”
The Court herein laid down the following considerations that may be considered in disputes involving common theme:
• How the idea is expressed and not the idea itself.
• The protectable story elements in the rival works must be considered, which do not necessarily flow from the subject/theme and which as such are unique.
• The focus will be on the quality of the work copied and not on the quantity.
• The dissimilarities introduced in the infringing work should not be deliberate, introduced by an intelligent copier only to create a farce of an independent work, which are trivial and are inconsequential to the determination of copying and/or substantial copying.
Thus, the adjudication is premised on the extraction of the key elements from the original work and reducing the extracted elements from the impugned work to see whether any meaningful or substantial elements are left, if so, then the impugned work is an original expression of an idea. In another case, Tarun Wadhwa v. Saregama, , where the impugned work of the Defendant “Zombivali” was alleged to be infringing the copyright of Plaintiff’s screenplay titled “Haila! Zombi”, the Bombay High Court extracted the key elements from the original work into “a Mumbai chawl, a hospital, a research centre, polluted or poisoned water, villains who seek power, land and control, and of course zombies”. The Court refuted the Plaintiff’s assertion that the Defendant’s work will not stand without the said elements. The Court reasoned that the elements of the Plaintiff’s work are a recurrent theme in movies involving zombies. Further, the Court highlighted that, since a copyright cannot exist in an idea, it is eminent that there will be similarities between works. The Court then went on to prescribe the following test to ascertain whether the latter work is original or not,
“Even if the two works are thematically the same, but treated and presented differently, there may be no question of copyright infringement. Incidental coincidences are not copyright infringement. Infringement is established only by clear and cogent evidence.”
Relying on XYZ Films LLC v. UTV Motion Pictures & Ors, it was further held that the Courts should be mindful of the degree of similarity between two works. Where the degree of copying is so extensive that without the copied portion, nothing substantial is left in the impugned work, only then a cause for infringement arises. The typical application test laid down in matters involving idea-expression dichotomy can be summed up in the findings of the Court in Vinay Vats vs. Fox Star Studio India Pvt. Ltd. , wherein the Delhi High Court of adjudicated on the dispute of the Plaintiff alleged the movie “Lootcase” as being a copy of the script titled “Tukka Fitt”, which revolved around a suitcase, carrying money, being lost, and various persons, including gangsters, chasing to get hold of it. The Court held that “the plot idea is as old as the hills” and, thus, no one can lay claim to any such theme. Further, due to the absence of substantive features of Plaintiff’s script and certain new elements which are substantial to the Defendant’s movie, the Court denied the prayers of the Plaintiff.
4. NOTION OF EXTRACTION
The Bombay High Court, in the case of Shamoil Ahmad Khan v. Falguni Shah observed that it was unthinkable to communicate an idea without expressing it either in writing or in some other form. Further, the Court was of the view in order to determine what is protected under the copyright law, an intricate task of distinguishing expression from an idea had to be done. This said, the Court understanding the complexities that such matters are prone to subjectivity gave a detailed order in favour of the Plaintiff, wherein it introduced a test of ‘Notion of Extraction’, which could be employed by the Courts in adjudicating matters of copyright infringement cases wherein there is an ambiguity between the idea and its expression.
The Plaintiff, in this case, is a well-known Urdu and Hindi writer and has authored several novels and a collection of short stories including the issue of this case, a short story named “Singardaan” which was first published in the year 1993. A dissection into the soul of the Plaintiff’s story portrayed a tale of the protagonist forcefully taking hold of a Courtesan’s ancestral Singardaan (vanity box) and thereafter, gifting the said box to his wife and daughters. The use of the said box brought a visible negative change in the appearance, body language, and behaviour of the ones who possess it. The striking feature of this story was that how a lifeless object can influence human lives by the various human vibrations and vibes absorbed by it over several generations of its use.
A copyright infringement suit was filed against the Defendants by the Plaintiff for telecasting and exhibiting their web-series by the name of “Singardaan”. The Plaintiff claimed that the Defendants have not only copied the title, “Singardan” but also the entire plot, narrative, and characters of his story by the same name. The Defendants on the other hand claim that even though there is a similarity in the title, but their work is an entirely original creation. The web-series revolved around a married grocery store owner, the protagonist who fell in love with a Courtesan in possession of a Singaardan. Upon the death of the said Courtesan during certain riots, the protagonist came in possession of the Singaardan. However, instead of destroying it as per the Courtesan’s last wish, he kept it as part of her last memory and took it home. Thereafter, he started to see changes in his wife’s and daughter’s demeanour which ultimately led him to bury the said Singaardan. As per the Defendant’s claim, save and except the central idea, namely, as a man taking away a vanity box, during the course of riots, from a brothel to his home, and its use leading to changes in the behaviours of the women at his home, there was no similarity between the two works of art.
The Court while deciding this case explained the Notion of “Extraction”. In the case of written work of art, an idea is evolved into a theme, which further advances to a plot, finally it flourishes into a final story involving characters and settings. It’s the combination of these elements which provides the entire organism of a completed copyrightable work. Likewise, a stripping of these elements will lead us to the bare idea or abstraction which enjoys no copyright protection. It is the duty of the Court to find out at what point such stripping lays bare the unprotectable idea.
In furtherance of this, the Bombay High Court reiterated the observation made in the US case of Nichols vs. Universal Pictures Corp. The Court observed that there will be a point in a series of abstractions where the work will be no longer protected, since otherwise the copyright holder will be able to prevent the use of the “ideas,” to which, apart from the expression, its property was never extended. Where to stop or draw a line in these “series of abstractions” is for the individual Court to decide and in doing so, it will have to impose its own value judgment, by applying its knowledge of a subject matter to a specific expression of that subject.
The Court in this case stripped off the Plaintiff’s theme of the story into an idea that “a thing or an artefact belonging to someone brings out in its user, by its use, a change in appearance or behaviour in line with the one to whom the thing or artefact originally belonged”, which was a non-protectable idea. A story or a play or other adaptation of this idea alone created by using different settings, characters, themes, and plot will not give rise to a copyright infringement of the said idea. However, the plot, theme, characters and the story itself belongs to the Plaintiff and any copying of the same will not be permitted. The Court further observed that even though the Defendants had drawn several distinguishing features of their work from that of the Plaintiff’s, the series was about the protagonist coming into possession of a courtesan’s vanity box and bringing it home and noticing perceptible changes as a result of its use in the appearance, mannerism, and behaviour of his wife and daughter which was the copyrightable plot, theme, and storyline of the Plaintiff’s book. Accordingly, the Court held the Defendant responsible for the infringement of Plaintiff’s work.
In general, there is no copyright in the central idea or theme of a story or play, however, the theme, plot, and storyline of a work put together is an expression of the central theme or concept. They contain sufficiently developed elements of expression or realization to have a life of their own for copyright protection. And these elements are essential or fundamental to the story and are its life and blood. Without them, the story would be robbed of its meaningful content.
5. PROTECTION OF MATERIAL SHARED IN CONFIDENCE
While ideas are not copyrightable, in certain circumstances, a creator may avail other remedies to protect their intellectual property in ideas, themes or plots. While the protection the copyright umbrella can only afforded under the provisions of the Copyright Act, 1957 or other statutes, however the right to restrain a breach of trust or confidence can be availed18 by the creator if certain conditions are met.
Pertinently in Zee Telefilms Ltd. v. Sundial Communication Pvt. Ltd. it was reiterated that there can be no copyright on ideas or information. However the Court further held that if the ideas or information have been acquired by a person under such circumstances that it would be a breach of good faith to publish them and he has no just case or excuses for doing so, the Court may grant injunction against him. The Court in Zee Telefilms v. Sundial (supra) further distinguished copyright from some material shared in confidence. Whereas copyright was held to protect material that has been reduced to permanent form, the general law of confidence may protect either written or oral confidential communication. It was held that copyright was good against the world generally while confidence operated against those who receive information or ideas in confidence. The Court held that to establish the breach of confidence the Plaintiff has to identify clearly what was the information being relied on, that it was handed over in the circumstance of confidence, that it was information of the type which could be treated as confidential, that it was used without licence or there is a threat to use it
In Urmi Juvekar Chiang v. Global Broadcast News Limited, the Bombay High Court adjudicated such a matter where, inter alia, breach of confidence was also alleged. The Plaintiff claimed to be a reputed script-writer and contended that an idea of a reality television programme was conceived by her in November 2005, which would follow citizens from different parts of the Country as they took the initiative and set out to solve a civic problem of their choice in their locality. The Plaintiff argued that she converted her idea into a concept note for the television programme titled “Work in Progress”, which was also registered with the Film Writers Association, Mumbai on 9 November 2005. The Plaintiff then discussed it with the Defendants who then developed a production plan and even engaged a producer. The Plaintiff submitted that after these initial discussions, there was no response from the Defendants despite follow ups by the Plaintiff until April 2007. On 19 May 2007, the Plaintiff submitted that she was shocked to learn that the Defendants had begun to telecast a programme titled “Summer Showdown” from 14 May 2007 on their channel CNN-IBN and the Plaintiff alleged that it was based on her concept note with only cosmetic changes. The Plaintiff sought interim injunction against the Defendants, on the basis of, inter alia, the ground of breach of confidentiality by the Defendants. The Bombay High Court analyzed Bombay High Court’s Division Bench’s Judgement Zee Telefilms v. Sundial (supra) and held that the law of breach of trust or confidence “is a broader right” than proprietary right of copyright. Based on the jurisprudence of Zee Telefilms v. Sundial (supra), the Court granted the interim injunction and held that the Plaintiff had made a case on first ground i.e. for breach of confidentiality.
The findings of various High Courts have been consistent in observing that no copyright protection can be sought for any idea, but copyright will exist in original expressions of ideas. To put it simply, copyright cannot be sought over one or even multiple elements of a work. It is the stringing of all the components into a finished work that matters, for example, the element of a chase by a police-officer soon after a robbery or a father having two identical sons or daughters are themes or common elements in a movie or book. However, it is the uniqueness of the narration and webbing of many elements that will make a work, an original expression.
The Courts have been successful and consistent in defining and explaining the dichotomy, however, the inconsistency is observed in its application. The Courts across the globe have struggled to uphold the principles of dichotomy and have on occasions, if not regular, given orders which are subjective to various interpretations. The Bombay High Court in Shamoil Ahmad Khan Case has even acknowledged that it is a delicate task to apply the dichotomy in matters of copyright infringement suits. This can be seen, where in one case a party was able to protect a show based on the common concept of ‘Swayamwar’ in another case, the script based on the common fable ‘Vetalam’ was not given any protection. The Courts, especially the Bombay High Court which is at the epicentre of such matters, attempt to evolve the jurisprudence to make the dichotomy less ambiguous and subjective. The introduction of the notion of “extraction” to find the nonprotectable idea behind a copyrightable work is a novel addition to the jurisprudence in the matter of copyright protection.
However, owing to overlaps between ideas and expressions, the idea-expression dichotomy is not a watertight concept and frequently percolate onto each other’s domains. Hence, despite creative interpretations and novel additions of jurisprudence by the Courts, the adjudication of such matters is still subjected to ambiguity. This leaves a vast task for the Courts to further facilitate the evolution of the jurisprudence concerning the idea-expression dichotomy, in order to secure the balance between freedom of creativity and economic rights of the authors.