Copyright law exists for the very purpose that one person cannot copy another’s work without the authorisation. It appears to be a cake walk in theoretical aspect but the practical application of this law is farfetched. For instance, the popular shows such as Naruto, Black Clover and My Hero Academia of the shounen genre of Japanese Anime have a basic theme common to all three, i.e. the underdog, who is not respected in his community, through perseverance and hard work becomes capable and gains his community’s respect. Another example could be the popular films Taken and Finding Nemo, both of which revolve around the basic plot that the single and protective father goes through a dangerous series of events in search of his lost/ abducted child.
Going by the theoretical understanding of copyright law, these films and shows perhaps amount to infringement of copyright. But it is not so due to the idea-expression dichotomy which states that only the expression of an idea is protected and not the idea per se.
Here the question arises as to how does a Court distinguishes between an idea and an expression in cases of copyright infringement.
WHAT IS COPYRIGHT?
Out of all the branches of Intellectual Property Law, copyright is perhaps the most well-known branch to the general public. It is usually spotted in books, music, films, advertisements, etc. Copyright is the right conferred on a creator of a literary or artistic work over his creative work. This right gives the creator exclusive rights of authorization over translation, adaptations, performance in public, recitation, broadcast and such over their creative work.
Berne Convention, 1886 (Protection of Literary and Artistic works) was the first international recognition of copyright. The Indian copyright regime is governed by the Copyright Act, 1957 (hereinafter referred to as “the Act”).
Section 13 and 14 of the Act stipulates an exhaustive meaning of copyright and works in which the copyright subsists. The subject matter of copyright law can be simply summarised as ‘creativity and its expression’. Copyright is said to be infringed when any person, without the permission or license or authorization of the creator of the work, does any of the things which the exclusive right as under Section 14 confers upon the creator such as translating the work, broadcasting it, etc. A more extensive definition and understanding is articulated in Section 51 of the Act.
A copyrighted work is akin to the creator’s private property and thus infringement of a copyrighted work is an equivalent to trespassing on the creator’s private property. It is important to note that the infringement of the work may not necessarily be intentional but at times may be unintentional and both of these are not excused under the law as held in Bobbs-Merril Company v. Isidor Straus and Nathan Straus, 210 US 339 : 52 L Ed 1086 (1907). It is not necessary that the infringing work should be an exact reproduction of the original copyrighted work but its substantial resemblance with the original work is enough to indicate that it is an infringement.
WHAT IS IDEA-EXPRESSION DICHOTOMY?
Copyright extends protection to works such as original literary, artistic, musical and dramatic works. However, it is important to note that this protection is extended to the expression and not the idea. In other words, the protection of copyright lies in the materialised form of abstract ideas which are expressions.
Dichotomy, literally, means distinction, so Idea-Expression Dichotomy is concerned with the distinction between the idea and the expression. An idea essentially is intangible and abstract and it is the expression which gives it a tangible form capable of protection. It is because the same abstract idea can be expressed in numerous forms of expression and if the ideas are copyrighted along with the expression apart from the original creator of the work, nobody else would be able to formulate its own expressions on the basis of the same idea. Henceforth, such a scenario would defeat the entire purpose of encouraging and rewarding creativity and thereby granting copyright.
Justice Brennan believes that:
This distinction between protected expressions and unprotected ideas is at the essence of copyright.”
On the concerned subject matter there are no specific legal provisions and the jurisprudence is based entirely on the case laws. In the case of Hollinrake vs. Truswell, Lindley, L.J. observed as follows:-
Copyright …………. does not extend to ideas, or schemes, or systems, or methods; it is confined to their expression; and if their expression is not copied the copyright is not infringed.”
In India, this jurisprudence first came in through the case of R.G. Anand v. Delux Films & Ors. AIR 1978 SC 1613 and further the same ratio has been reiterated in the cases of XYZ Films LLC v. UTV Motion Pictures, 2016 SCC OnLine Bom 3970, Mansoob Haider v. Yashraj Films Pvt. Ltd. and Shamoil Ahmad Khan v. Falguni Shah 2020 SCC OnLine Bom 665 by the Bombay High Court.
SEVERING IDEAS – EXPRESSION IN CINEMATOGRAPHIC & RELATED WORKS
Ideas by their very nature are inconceivable without explicit expression and thus, it is fruitless to talk of an expressionless idea. Even then the courts are tasked with distinguishing between idea and expression while deciding cases of copyright infringement. However, such a task is not easy as in most cases the ideas and expression are so well mingled that the Court finds it difficult to segregate. Essentially, it is imperative of the Court to determine that “at what point plagiarism ceases to copy an author’s ideas and steals the expression of his ideas.”
Cinematographic films or even theatrical plays or novels are a different class of artistic expression. They are surrounded by a plethora of themes, arrangements, characters, representations, etc. This can be better understood by the example of film 2 States and New Delhi. Both of these films depict the theme of “provincialism” in India, i.e. how the North Indians are opposed to the idea of marriage of their child to a South Indian and vice versa. Now this theme is also coupled with other themes such as “problem of dowry in India”, “father-son relationship”, etc.
Had there been no idea-expression dichotomy; the movie 2 States to a certain extent would be considered to be a copy of New Delhi due to the commonality of themes. However, if one watches both the films one would easily know that these films are different and is not the copy of another. It is clearly understood that for the Court to decide a copyright infringement suit, it has to create a distinction between the two and check whether there is plagiarism of the expression of an idea. But the troublesome part is carving out a distinction because severing the film into parts that are “capable of being characterised as original works and other parts that are not” is difficult and for this very reason the judiciary has created some tools to make the process easier.
TOOLS TO SEGREGATE THE DISTINCTION CREATED BY COURTS
The Courts have come up with certain ways in which the distinction between the idea and the expression can be determined. But before proceeding, the first thing to be determined is whether the plaintiff’s work, looked at as a whole, is protected under the copyright or not and secondly, to inquire whether the part taken from the original copyrighted work of the Plaintiff is substantial or not. If one assumes a copyright in the plaintiff’s work, the finding of the Court will be indeed wrong.
Similarities of events, situations and incidents are considered to be prima facie evidence of infringement or copy or plagiarism and if there is no explanation by the Defendant regarding the sources for such similarity then infringement is quite evident as held in Bobbs-Merril Company (supra).
Substantial similarity is often identified by applying the Lay Observer Test, which is considered to be the surest test to determine infringement of copyright. In this test, the work of the Plaintiff and the Defendant is viewed or read or witnessed by an average lay observer and the opinion of this observer with regard to the similarities between both the works is considered to determine the amount of similarity. If the observer gets an unmistakable impression that the subsequent work appears to be a copy of the first, then it is considered substantial similarity.
In the present times, it is a known fact that themes, plots or historical or legendary facts are not protected under copyright due to the landmark judgment of R.G. Anand vs. M/s Delux Films (supra). It was the first judgment to clarify and settle the law relating to the subject matter and guidelines were laid down which are as hereunder:
1. There is no copyright protection in an idea, subject matter, themes, plots or historical or legendary facts. The protection extends only to the form, manner and arrangement and expression of the idea by the author of the protected work.
2. If the same idea is being developed in a different manner similarities are bound to occur. The determining factor is whether or not these similarities are on the fundamental or substantial aspects of the mode of expression adopted on the copyrighted work.
If the impugned work is found to be a literal imitation of the copyrighted work with a few minor changes then it shall amount to infringement of copyright.
3. Lay Observer Test is the best way to determine infringement of copyright.
4. Question of copyright infringement does not arise when there are two works based on similar themes but the presentation and treatment of the theme is different.
5. No infringement of copyright comes into place when apart from the similarities in two works there are also dissimilarities of a material nature, cancelling out the copying of original work and coincidences appearing in the two works, present in both the works.
6. Being an act of piracy, the infringement has to be proven through clear and cogent evidence.
7. In case of films, there is a larger background where the infringing party can give colour and complexion different from the copyrighted manner. Even in such a case, if it appears to the viewer that the totality of impression that the film is by and large a copy of the original play, copyright infringement may be proved.
The above principles were derived by the Supreme Court after a careful reading of the jurisprudence on the subject matter. By and large, these are principles have been followed strictly in most of the cases by various Courts.
Recently, the High Court of Bombay in Shamoil Ahmad Khan v. Falguni Shah & Ors. (supra), the Court discussed and analysed the novel idea of “Extraction” which seems to be an incredibly suitable way separate the idea from an expression. The Court further referred and relied upon Nichols v. Universal Pictures Corp. 45 E2d 119 (1930) and explained as under:
In a written work of art, such as the story with which we are concerned here, a germ of an idea is developed into a theme and then into a plot and then final story with the help of characters and settings. It is a combination of all these elements which give a body to the work or a substance to it. If one goes on stripping the final work of these various elements, one may finally come to the bare idea or abstraction which no longer enjoys copyright protection. The task before the court is essentially to find out at what point such stripping lays bare the unprotectable idea.”
Additionally, the Court added that it is the discretion of the Court, keeping in view the facts of the case, where they want to draw a line in this series of abstractions. The Court must apply its own value judgment based on the knowledge of a subject matter to a specific expression of that subject. It is almost as if it creates a visual of a line below which whatever lies is unprotectable, and above it everything is a matter of expression and thus, protectable.
The Court also referred to the decision in XYZ Films (supra) in addition to the R.G. Anand case (supra) and observed that:
“In general, there is no copyright in the central idea or theme of a story or play, however original it may be; the theme, plot and story line of the Plaintiff’s work extracted above cannot be called bare “central” theme or concept in the sense in which the Supreme Court in R.G. Anand and the learned Judge in XYZ Films have meant. As we have seen above, the theme, plot and story line quoted above are clearly expressions of the ‘central’ theme or concept. They contain sufficiently developed elements of expression or realization so as 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. If they are copied, there is a case of actionable plagiarism.”
Therefore, it is pertinent to note that the Court in the present case did not apply the guidelines in a blanket fashion, rather the Court in a way expanded the protection to a theme, as explained in the next section.
UNDERSTANDING THE TOOL OF EXTRACTION USING FACTS
To understand the concept of extraction better, the facts of Shamoil Ahmad (supra) play a significant role. The Plaintiff in this case was the author of a popular Urdu short story titled “Singaardaan” and this story has been published popularly in literary magazines in English, Marathi and Punjabi Translations and on websites as well in India. It was also staged in the form of a play and had received appreciable reviews.
The Defendants’ are the creators of a web series called “Singaardaan”. The Plaintiff sought a temporary injunction to restrain the use of “Singaardaan” as the title of the series by the Defendants or other similar title, so as to pass off the web series as Plaintiff’s popular story “Singaardaan”. The Plaintiff also sought for damages as well as temporary reliefs on account of copyright infringement by the Defendant on the Plaintiff’s story.
As per the submissions made by both the parties, I was amply clear that the central theme, plot and storyline revolved around where in a riot a Hindu man comes into possession of a Muslim courtesan’s heirloom vanity case and takes it to his home. Following which, there is a noticeable change in the lifestyle of his wife and daughter, who start to dress like a courtesan.
Therefore, in the present case, the Court opined that the events and elements were mere embellishments, description of the mood, the motivations and tribulations of its characters and their actual actions added to the basic or the central theme, plot and storyline, which was called to be the life and blood of the plaintiff’s work. The Defendant’s work is a copy of the work of the Plaintiff without the prior permission or authorization by the Plaintiff. Furthermore, the Defendant had tried to commit colourable imitation of the Plaintiff’s work by adding embellishments, moods, events and such to it.
The Court was of the opinion that it cannot say that the life and blood of the plaintiff’s is non-protectable merely because it is plot, theme and storyline. This is because the Plaintiff’s central theme, plot and storyline was above the line of extraction.
In other words, the series of abstractions has not reached the level where there can be no more abstraction and the bare idea is found. The court identified the non-protectable idea or the bare idea left after the entire process of extraction is complete and observed as follows:-
An idea that a thing or 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.”
Thus, the central theme, plot and storyline of the plaintiff is an expression of this non-protectable idea and likely to get protection. It should be noted that this finding is in line with the law laid down in R.G. Anand Case. In the Apex Court judgment, the Court by the terms ‘theme or idea or plot or storyline’ referred to the non-protectable idea which is the same as the content below the line of extraction, the bare idea which is not-protectable.
The Court never reflected its intention where a storyline or theme, which is actually an expression of an idea, cannot be protected. It is important to note that when a theme or plot or storyline is an expression of a non-protectable idea, then essentially it actually is a form, manner and arrangement and expression of an idea, which is very expressly considered as protectable in the guidelines laid down in the R.G. Anand case.
Distinguishing between an idea and expression in an artistic work is a difficult task and more so in the case of a cinematographic film or a play as it has so many elements and features to it. To determine whether there has been any copyright infringement or not, following aspects ought to be dwelled upon:
1. Firstly, to look at whether the plaintiff’s work is protected under copyright or not.
2. Secondly, to check whether the defendant’s work has substantial similarity, based on “Lay Observer Test” with the former and if so, whether this similarity forms the fundamental aspect of the work.
If the answer is in the positive then it shall amount to infringement of copyright.
To ease this process for the courts, the process of extraction seems to be the ideal tool.
Extraction is removing all the layers of embellishment of a work till the point where the bare idea or theme becomes visible and this bare idea or theme is not protectable.
The recent judgment of Shamoil Ahmad (supra) is one of the example which could possibly expand the scope of protectability to themes or plots or storylines which are expressions in themselves of bare ideas, under the copyright law.