Category Archives: Copyright

3EU’s New Copyright Directive Proposal: Boon for Strengthening IPR Law Protection or Bane on the Individual Internet Freedom?

We are at a time where the internet is bringing the world closer together, turning itself into a close-knit community. Internet has enhanced and rather increased the exchange of information. Amidst that, law enforcement agencies and governments all over the world have enacted various laws for channelization of data, protection of internet users, privacy of the individuals, etc. for example, in the European Union, the recent law, is the GDPR which is a privacy regulation which has come into operation in May, 2018, however, the major focus of this article would be in the intellectual property law domain; Furthermore, of the recent would be the most debated EU’s new copyright directive- proposal, that is  yet to be approved. It is argued that, while, having such a law would give more protection to the owners of the copyright content, it is countered that it may deprive the internet users, the world, of the vast copyrighted data currently available. It is in this light, that the probable impact of the new copyright proposal will be analyzed and discussed.

 INTRODUCTION

Many are aware about the new privacy legislation of the European Union which is very talked off and debated all over the world, i.e. the General Data Protection Regulation (GDPR). While, the GDPR was introduced in 2016 and implemented in May 2018 not only EU but the entire world is still grappling with its various adherences and compliances. Due to its extra territoriality aspect, the GDPR is affecting all the countries, other than EU. What is even more surprising is European Union’s new copyright directive proposal. Ever since the beginning of internet age, various intellectual property rights law has been put in place for the same. These laws have been amended all over the globe in various jurisdictions to incorporate the IPR violations if any in the digital space. A similar amendment has been proposed in the EU’s copyright law, whose probable effects and consequences will be discussed in this article.

EU’S NEW COPYRIGHT DIRECTIVE

The EU Copyright Directive is the Directive on Copyright in the Digital Single Market. It is rather an attempt to harmonize copyright laws across all the European Union member states.

The initial EU copyright law (which the new draft proposal seeks to amend) was put in place in 2001, at a time when the intellectual property law protection became vital even in the digital space. It is majorly designed to update the law and make it more relevant in the cyber space in order to grant more protection to the copyrighted content. One of the biggest criticisms it faces is that it is vague and overly harsh. The two major provisions, i.e. Articles 11 and 13 are considered to have a major impact on the individual freedom.[1]

MAJOR PROVISIONS IN QUESTION

As mentioned above, the two major provisions i.e. Article 11 and 13 of the draft proposal/directive have been criticized as being harsh and oppressive to the individual internet freedom.

Article 13, implies that it would force all online platforms to police and prevent the uploading of copyrighted content, or make people seek the correct licenses to post that content. For the most part this would mean filters that check content as it’s uploaded would be mandatory for platforms including Facebook, Instagram, GitHub, Reddit and Tumblr, but also many much smaller platforms. YouTube already uses such a system — called Content ID — to protect copyright infringement, but the technology to do this is extremely expensive and has taken over 11 years to build and refine.

Article 11, although has gained a considerable light of criticism due to it being harsh and oppressive but to a lesser extent. This article states that companies like Google, Facebook and Microsoft may have to pay publishers for showing snippets of news articles.”[2]

IMPACT OF THE NEW COPYRIGHT DIRECTIVE IF MADE A LAW

The impact of the new copyright directive would be on two entities:

1) individuals i.e. users, 2) social networking sites.

ON THE PEOPLE

On one hand, the EU has the GDPR, which is the much-needed privacy law meant for safeguarding the interests of the users in terms of the data content which they would share online and the possibility of it being likely to be misused by the various sites online. On the other, is the new copyright directive? Under this new copyright directive, any user who intends to use any creative content produced by the artist, songs or dance artist, composers or anybody will be liable as per the new directive. Rather they may have to seek the correct licenses for it or else the copyrighted content after being filtered will have to be removed. Not only that, any memes, remixes, or anything concerning any artist will not be uploaded or rather can be but with restrictions mentioned in the draft proposal. The entire purpose of internet which is connecting with people, free flow of ideas, information, may get hampered drastically. One cannot imagine the impact it would have on the people of the European Union. Due to these reasons, various protests have taken place in a bid to take down the proposal.

 ON THE SOCIAL NETWORKING SITES

This directive may make these sites redundant as then the people may be unable to upload the data they may want to. The most controversial provision is the “Article 13, which requires websites to enforce copyright, even on content uploaded by users. Critics believe this could mean that social media sites and others would have to check every piece of content uploaded – a task that would be impossible for humans. Instead, it would require automated copyright checking systems, put in place by each company – a potentially expensive process. Such systems have a high error rate, and have already been controversial on platforms, like YouTube, where they have been implemented. Such systems have been labelled “censorship machines” or an “upload filter” by critics of article 13.It has also led to fears that popular memes, remixes, parodies and other material which use small amounts of copyrighted material could become a thing of the past.”[3] Due, to this, the Italy Wikipedia has shut down in protest of the EU copyright law on 3rd July, 3018

 WHAT HAPPENS NEXT?

“The initial proposal to reform EU copyright law was presented by Günther Oettinger shortly before leaving his post as Digital Commissioner.EU member state governments approved the plans (with slight changes) in the Council. The Legal Affairs Committee narrowly approved the plans (with slight changes) – but in a surprise move, the Parliament then refused to rubber-stamp the Committee’s position, opening it up for further debate. Next, the entire Parliament will vote on changes to the Committee position on September 12, 2018.After closed-door compromise negotiations between the institutions, the Parliament will have to approve the result one final time.”[4]

CONCLUSION

While, it is understood that the copyrighted material of various artists, composers, etc must be protected, a balance between the two, i.e. the internet freedom of the individuals and the rights of the artists, singers, rappers, composers, etc must be maintained. This is rather advocated by many all over the globe. The probable effects, consequences, impact of the same highlight only the possibilities of the copyright (proposed) law that may happen. The actual implications of the same are difficult to measure. Yet, it is further emphasised that a balance must be maintained between the two, i.e. the internet freedom of the individuals and the rights of the artists, singers, composers, etc, so as to ensure that the one doesn’t work to the detriment of the other.

Author: Shruti Gupta, Legal Intern,  at  Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at pratistha@iiprd.com.

References:

[1] https://www.cnet.com/news/article-13-europes-hotly-debated-eu-copyright-law-explained/

[2]https://www.cnet.com/news/article-13-europes-hotly-debated-eu-copyright-law-explained/

[3]https://www.bbc.com/news/world-europe-44696302

[4]https://juliareda.eu/eu-copyright-reform/

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Copyrighting Patents

The nature of Intellectual Property Rights is such that, like any other law, it has loopholes as well as overlaps. These overlaps arise due to the fact that IPR protects ideas by their expressions and expression can be in more ways than what can be imagined by one person. There are subject matters which are eligible for the protection of more than one kind of IP. The prime example is the overlap between design and copyrights which has been statutorily dealt with under the Copyrights Act.

However, the recent debate has been with regard to Copyrights and Patents. Now, both of these are as far apart as two IP protection sects can be. Copyright protects literary, dramatic, artistic, cinematographic, musical works whereas Patent grants rights to functional inventions which are novel, useful and non-obvious. However, these rights find a commonality in the patent applications. It is pertinent to disclose the information relating to the working of the invention in the patent application by way of specifications. These specifications also include certain drawings and sketches of working models of the invention. There has been a long standing question whether these applications, which consist of the originally authored specifications and drawings, are eligible to be granted a copyright. Or alternately, can the specifications in the patent application be infringing upon copyrights owned by other authors/scholars.

Countries have taken different stands in the matter. Germany, for instance, excludes patent documents from the copyright protection from the time they are published.[1] However it is necessary for a person to cite the source when using it in a scholarly or academic work. Switzerland as well exclusively exempts the patent documents from being copyrighted.[2] On the other hand the position in UK differs depending on when the patent was filed. All the applications filed prior to 1989 were protected by the Crown Copyright. However, after they enforced their 1988 Copyright Act all the applications prior to 1989 remained with the government  unless they had a copyright notice on them, and the copyright for all the applications filed after that date lies with the applicant and no use can be made unless with express license except for the purpose of ‘dissemination of information’.[3] USA holds a different position for copyrighting patent applications. It has been stated that all the information posted on the website of the USPTO is considered to be in the public domain but the government holds international copyright over it. However, the applicants are allowed to specify their copyright on the patent drawings or other materials.[4]

There have been very few cases which discuss the copyright ability of patent applications. The US case that accepted that copyright subsists in a patent application was In Re Yardley.[5] In more recent cases, it has been questioned whether patent applications can be challenged in court as infringing a copyright. In American Institute of Physics and John Wiley & Sons, Inc. v. Schwegman, Lundberg & Woessner P.A. [6], the University alleged that the firm infringed their copyright by attaching a scholarly article in their patent application. The firm on the other hand took the defense of ‘Fair Use’ and stated that the articles were taken from the USPTO website itself. In two other cases, American Institute of Physics and Blackwell Publishing, Ltd. v. Winstead PC[7]  and John Wiley & Sons, Ltd. and American Institute of Physics v. McDonnell Boehnen Hulbert & Berghoff LLP [8]—and again, after intervention by the PTO—the plaintiffs similarly amended their complaints to disclaim any allegation of infringement based on submission of copies of copyrighted articles to the PTO, or on retention of file copies of the works submitted to the PTO.[9] The defendants in all these cases stated that disclosure of prior art was necessary in order to secure a patent for their invention and thereby should be included under the exclusion of ‘Fair Use’. The court accepted this and said that as long as it proves to be of evidentiary value and is a requisite for disclosure for the government the use can be deemed to be fair.

Contrarily, the UK courts do not follow the same rationale. In Catnic Components Ltd. & Anr. v. Hill and Smith Ltd. the court held that the copyright in a patent ceases to exist once it is published. The court was of the opinion that the main underlying principle behind granting a patent is full disclosure. The idea is to bring the invention into public domain so as to boost innovation. Copyright on the other hand restricts the rights of other people by giving exclusive rights to the owner of the copyright. It is a conflict between the most basic objectives of the two rights. Furthermore, scholars have pointed out that granting copyright could in effect hamper the innovations further. The term of a patent is a maximum of twenty years but in case of copyrights the term is much longer and continues to be in effect 60 or 70 years after the death of the owner, depending on the domestic laws of the country. This creates a problem as to the fact that even after the invention is out in the public domain there would still be rights which will be otherwise attached and thereby will beat the purpose of being in public domain. These questions have not yet arisen in front of the Indian courts and the law is also silent on it, nothing has been stated explicitly. But the position of other countries gives us a fair idea as to how allowing copyright in patent applications or not can lead to different scenarios and raise different questions.

Author:  Yashvi Padhya, Intern at Khurana & Khurana, Advocates and IP Attorneys. Can be reached at swapnil@khuranaandkhurana.com.

References:

[1] https://www.dpma.de/english/patents/faq/index.html#a22

[2] https://www.admin.ch/opc/en/classified-compilation/19920251/index.html#a5

[3]http://webarchive.nationalarchives.gov.uk/20140603113132/http://www.ipo.gov.uk/types

/copy/c-other/c-other-faq/c-other-faq-type/c-other-faq-type-patspec.htm

[4] https://www.uspto.gov/terms-use-uspto-websites

[5] 493 F.2d 1389 (CCPA 1974)

[6] D. Minn. Civ. No. 12-528

[7] N.D. Tex. No. 3:12-CV-1230

[8] N.D. Ill. No. 12 C 1446

[9]http://www.mondaq.com/unitedstates/x/283736/Copyright/Can+a+Patent+Application+

Violate+the+Copyright+Laws

Ownership Of Third Party Content On A Website/ Social Media/ Blogs Etc.

We all know that the copyright of any literary/dramatic/artistic work lies with the author of the work even if the copyright is not registered provided, it is original. According to this, the creator of the website is the copyright owner of the same (subject to some exceptions) provided the text, photographs, videos etc., used in the website are not copied works. Now a question arises as to who owns the copyright of the content posted by third parties on a website/ social media/ blog etc. Because individually the owner of the website and the owner of the content posted by third party are different. The answer to this question lies in the terms of the medium one is using to post its content.

Any website has its own terms and conditions that the user must adhere with, without agreeing to those one cannot have access to their services. Generally, public do not take efforts to read these terms and conditions and blindly agree to them, therefore, leading to bunch of all the problems. The terms and conditions are usually drafted in legal language making it difficult for people of non-legal background to understand them. But it is said that one sided efforts are of no use because it is said that one sided efforts go in vain i.e. though efforts are being taken by the website owners to make them easy to understand, people are not taking any efforts to read and understand them before accepting.

In terms and conditions of most of the websites it is mentioned that the owner of the work that is posted through their medium is the author himself, but they give free licence to the owner of the website to use the content anywhere else or even sub licence it to others. This gives them permission to share the content with others also without giving you even a penny. This means that one cannot earn anything out of the efforts one puts in making the work uploaded on the website. Some of the ways to avoid this is reading and understanding the terms and conditions, getting a copyright registered, not relying on only one medium, having a blog of our own in short being aware and alert of one’s rights, terms and conditions of the website.

From the above discussion we may conclude that nobody can take away the ownership right of a work from the copyright owner (subject some to exceptions) i.e. the ownership of the copyright of the work created lies with the author himself even after uploading it on a third party website but by agreeing to their terms and conditions we give them free licence to use our work in a way they want to make use of it.

Author: M. Sai Krupa, Intern at Khurana & Khurana, Advocates and IP Attorneys. Can be reached at anirudh@khuranaandkhurana.com.

References:

[1] https://www.socialmediatoday.com/content/who-owns-your-content-online

[2]https://www.out-law.com/page-381

[3]https://www.theguardian.com/money/2012/dec/20/who-owns-content-you-upload

[4] http://www.mondaq.com/india/x/607438/Copyright/Copyright+Protection+Of+Online+Content

 

Violation Of Moral Right In Light Of ‘Ghar Se Nikalte Hi’- Will This Be An Eye Opener For The Trend Of Remixes?

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” [1]

The foundation of this concept was laid in the case of Amarnath Sehgal v. Union of India[2]. This was a landmark judgement delivered by the Delhi High Court thereby setting precedent and contributed in increase in understand and scope of moral rights given under Section 57[3] of the Indian Copyright Act, 1957. Moral rights are generally meant for protecting the work of the author and maintaining its integrity which essentially means preventing it from getting mutilated or distorted or altered in any undesired manner which may result in hampering the image of the author or its use in such a way that it may hurt the sentiments of the author.

The latest Bollywood glitch between Javed Akhtar and Armaan & Amaal Malik has been with respect to the same. The renowned Bollywood lyricist Mr. Javed Akhtar has issued legal notice against Armaan & Amaal Malik and Super Cassettes Industries Pvt. Ltd., for violation of his moral rights by recreating the song ‘Ghar Se Nikalte Hi’. It is alleged by Mr. Akhtar that the newly created version has used the original “mukhda (first stanza)” of the song repetitively. Although it is combined and mixed with different composition and different lyrics, the essence of the song remains the same. Mr. Akhtar further claims that the new version infringes his “moral rights” under Section 57 of the 1957 Act and aggrieved by the fact that ‘Kunaal Verma’ has been credited as sole author for the recreated version denying Mr. Akhtar, his statutory right of authorship.

There is no doubt that ‘Mukhda’ is the soul& essence of a song to which we all shall agree and so Mr. Akhtar has every right to be identified and credited for the same, especially when the original track bears his name in bold. Further, the fact that his right to royalty (Section 18[4] and 19[5]of the 1957 Act) in respect of using of lyrics which were originally given by him, has been jeopardized as they will not be able to receive royalty without the recognition of authorship. Even the Apple’s Itunes does not recognize him as the original lyricist which has further aggravated the entire situation.

However, the anomaly which can be observed in this notice is that it has been issued to Armaan Malik, who merely is the performer and singer and had nothing to do with the authorship of the song and in my opinion,

it should have been issued to lyricist of the new version who has in fact distorted the entire song. Other shortcomings of the legal notice may be that-

  • There was no legal notice issued to Apple’s Itunes for having failed to mention Mr. Javed Akhtar as the lyricist of the song, although they have specifically violated Section 52-A[6].
  • Legal Representative of the author can exercise the rights conferred upon the author of a work, other than right to claim authorship of the work. The proper body to allege on the recreated version as trying to escape the payment of royalty is IPRS (Indian Performing Rights Society), to whom Mr. Akhtar has assigned his rights.
  • Notice issue to Armaan Malik for simply making a public comment on You Tube page in which he failed to acknowledge the original authors seems senseless and baseless.

There have been several cases with respect to moral right &recreated versions, but a penumbral area exists as nowhere the term ‘recreation’ has been defined in the 1957 Act per se, but if we go by the definition of the word ‘adaptation’, Section 2(a)includes in relation to any work, any use of that work involving in its alteration and rearrangement. Section 14 also confers such type of right to the owner of any literary, dramatic artistic or musical work. If we comply with these provisions, then T-Series, being the owner of the original work has the right to make an adaptation or recreated version. But the question arises that whether recreation of original work amounts to violation of moral rights of the original authors of that work?

Section 57[7]of the 1957 Act provides two rights to the author i.e., of paternity (right to claim authorship) and integrity (to claim damages for any mutilation, distortion, modification of the work prejudicial to his honor or reputation). These rights are also protected under Article 6bis[8] of the Berne Convention where under the right to Paternity, author can claim due credit for any of his work.

But the catch here is that Section 57 protects the right of authors only when it is established that the alteration or modification of the work is prejudicial to author’s reputation and also there is some relation between the original and recreated work. This view has been reiterated by the court in Manu Bhandari v. Kala Vikas Pictures.[9]

From Amarnath Sehgal’s case[10] the Indian Copyright legislation has moved further on broadening the scope of artist’s reputation and interest and the outcome of present matter will also add up to it.

With respect to integrity rights, I am of opinion that on comparing and reading the lyrics of original and recreated version there is nothing dishonorable or prejudicial which can damage the reputation of the original authors. If this is treated as violation of moral rights, it would send a signal of warning for music industry and the trend of making remixes. As nowadays with increase in number of remixes or recreated versions, this issue of moral right will be one of the major debates in India and even though it remains unsettled, it is essential to protect the interest of original writers so that their music does not wither away with the modern remixes.

Author: Prashant Arya, Intern at  Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at swapnils@khuranaandkhurana.com.

References:

[1]Universal Declaration of Human Rights, Article 27(2)

[2]Amarnath Sehgal v. Union of India,2005 (30) PTC 253

[3] https://indiankanoon.org/doc/1710491/

[4] https://indiankanoon.org/doc/1703533/

[5] https://indiankanoon.org/doc/262036/

[6] https://indiankanoon.org/doc/588136/

[7]Supra, fn.4

[8] Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

[9]Manu Bhandari v. Kala Vikas Pictures,AIR 1987 Del 13

[10]Supra, fn.3

Law On Internet Memes

Internet users in India spend half their time on social media every day. It is one of the most efficient platforms for communication yet the most exploited one. One such famous platform would be Facebook, an online networking site that mostly everyone is aware of. Similarly, internet ‘meme’ is also ubiquitous It is defined as “an idea, behaviour, style or usage that spreads from person to person within a culture.” These memes are a subset of the behaviour passed from one individual to another by imitation or other non-generic memes. In legal terms, it is a ‘derivative work’ and only the copyright owner has the legal right to create such work. Although, if the person claims to have made a “fair use” of the copyrighted work, it can be used as a defense under the provisions of the Copyright Act.

Now, lets come back to the debate as to whether memes shall be protected under the copyright and Trade Mark law or not. You may think that no one is the owner of such memes, rather it is just a creation of the internet but the Law may think differently as some memes do qualify for copyright protection and at some point, they were created by some person who could be the owner of the right. For instance, a meme called the “Grumpy cat” became so famous that it was turned into a business through selling books, posters, mugs, etc. in the name of “Grumpycats.com” and was granted a trademark for the same.

Even though a lot of memes are shared on the internet for the sole purpose of fun, there have been instances in the past that states otherwise. Just like in the case of Getty Images, an American agency which supplies images and illustrations that sent letters demanding license fees who exploited their copyrighted content was an image of “Awkward Penguin”, a photograph taken by George Moberly, a National Geographic photographer, for which Getty enjoys the licensing. Posting a meme on a personal blog (non-monetized) or a personal social network account might not be challenged. However, if it is for a commercial purpose, it might violate the copyright.

Assuming that these marks are registered in India, they will be governed by the Trade Marks Act. Now, if the image on a meme is being used on goods and services or for other commercial purposes, it would lead to infringement of the trademark under Section 29 of the Act which clearly states that a mark may be infringed by use of spoken words or their visual representation meaning that even a slight usage or any modification of that image on social media would result in infringement. However, this provision is only applied to registered marks and not unregistered.

Even though Copyright law in India does not specifically provide remedy in the case of parody, the owner of such artistic work can reach the Court for infringement of his right as any use of the Copyrighted work if,  it is  not a “fair use” can result to infringement leading to a lawsuit.

Even though its tempting to think that viral content is nothing but part of the web that is “owned by everyone”, there is still some source attached to the work and if such work amounts to copyright, the owner should be provided with the rights for the same. Memes are a rapid business and do not get immunity from the skirmishes of copyright and trademark, thus leading to more upcoming battles in court.

Author: Ms. Tushita Dogra, intern at Khurana & Khurana, Advocates and IP Attorneys. Can be reached at swapnils@khuranaandkhurana.com

References:

[1] https://www.plagiarismtoday.com/2013/05/07/copyright-memes-and-the-perils-of-viral-content/

[2]https://www.washingtonpost.com/news/the-intersect/wp/2015/09/08/how-copyright-is-killing-your-favorite-memes/?utm_term=.64b3b3aa2474

[3] http://www.abajournal.com/magazine/article/do_memes_violate_copyright_law

Does Publication of Bare Acts by Private Companies amount to Copyright Infringement?

Introduction

“[I]f ignorance of law is no excuse it presupposes that a citizen is able to know law. The elementary requirement in this country is that the citizen is able to obtain an authenticated copy of the Act, Rules and Regulations. If a citizen is not able to obtain these documents, the argument is that it would be difficult to implement the rule that ignorance of law is not an excuse.

A Public Interest Litigation [WP(C) 10941/2017] has recently been filed in the High Court of Delhi contending that ‘Right to Know’ being a fundamental right and obliges the Government to inform the citizens about law by publishing authenticating it and updating as well as providing  reasonably priced printed copies of Bare acts. Interestingly, the PIL also goes on to claim that Acts of Parliament are under copyright ownership of the Government and, therefore, these cannot be permitted to be published by private players for commercial gains.

Background

The present petition has highlighted the troubling issue of accessing legislative and judicial documents in India. This issue was previously brought to the forefront by Vansh Sharad in his writ petition, whereby the High Court of Delhi observed that the “RTI Act itself mandates the Government to place the texts of enactments in public domain”[1]. Even prior to this The Bombay High Court has on a number of occasions passed orders directing the Government to make available authentic and updated copies of the acts and legislation, the most recent one being in the case of Mumbai Grahak Panchayat and Another. Vs State of Maharashtra and Others[2].

On the basis of the status report filed on the last date of hearing in the case of Union of India v. Vansh Sharad Gupta (hereinafter referred to as ‘Vansh Sharad’)the Court took a prima facie view that the Cabinet Secretariat’s officials are making positive efforts in tackling the issue of digitisation of bare acts, rules, regulations and notifications. Visibly, the actions taken by the Government is evidenced in the New India Code web portal which is under development and provides for improved online access to Indian legislations[3].

However, access to legislation has re-surfaced again with the present PIL filed in the High Court of Delhi by Advocate Arpit Bhargava which claims that the failure of the Government in providing affordable and accurate hard bound copies of Central Enactments, Rules and Notifications is violative of the fundamental right guaranteed under Article 19(1)(a) of the Constitution. Advocate Bhargava has also alleged that apart from the high prices of the private publications, some were also inaccurate. A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar on 08.12.2017 has thereby issued notice to the Ministry of Law as well as the Department of Publications under the Ministry of Housing and Urban Affairs and sought their stand on the issue raised in the petition. The matter is listed for 11th April, 2018.

The present PIL sheds light on two cardinal principles, the Right to Know and the principle of fair use which is given under Section 52 (1) q (ii) of the Copyright Act 1957 (hereinafter referred to as the ‘Act’). The said provision excludes the reproduction or publication of any Act of a Legislature from the scope of copyright infringement subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter.

Analysis

While the importance of the right to know has been reemphasized, time and again as being co-related to the fundamental right of freedom of speech and expression guaranteed under Article 19 of the Constitution, the interpretation of Section 52 (1) q (ii) and the condition laid therein has never before come into question. One needs to analyse a number of issues to understand whether the publication of Bare Acts by private companies amounts to copyright infringement of the Government or not?

  • Whether there exists any Copyright over Statutes?

An interesting point to be evaluated while considering this issue is whether the State can assert any copyright over Statutes. In U.S.A. the position laid down in State of Georgia v. Harrison Co[4] is that, “the citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process”. Even the Bombay High Court in Vansh Sharad reaffirmed the observation made by the CCI that “[t]he law and enactments are in public domain and none can claim copyright in the law”. In light of these judgements, one could reasonably argue that there exists no copyright over Acts and Statutes and therefore, can be reproduced or published freely.

On the other hand, various provisions of the Act suggest otherwise. Section 52 which enumerates the acts that shall not amount to infringement necessarily implies the existence of a copyright. Moreover, Section 17 (d) of the Act lays down that Government shall be the first owner of all Government works, unless there is an agreement to the contrary. The definition of Government work as laid down under Section 2 (k) of the Act covers within its scope, all works which are made or published by or under the direction or control of the government, legislature, Court, tribunal or any other judicial authority in India. On reading these provisions together, the logical inference would be that the copyright over the Acts and statutes lies with the Government.

  • Whether such Copyright is infringed by publication of Bare Acts by private publishers?

If the argument of the Government being the copyright holder is accepted, one would then have to examine if there exists any exception which gives the private companies the right to publish Government work without infringing government’s copyright in them. This exception is given under Section 52 (1) q (ii) which lifts the prohibition on reproduction or publication of an Act or statute if it is knit together with any commentary thereon or any other original matter. This requirement has been confined to Acts of legislature alone and does not extend to other categories of Government work covered under Section 52 (1) (q).

The Petitioner in this regard claims that the term “Bare Act” itself implies law in its raw form and hence any reproduction of it by private publishers amounts to infringement of the copyright of the Government. Whether the comments and cases added by the private publishers to the Bare Acts published by them fulfil the condition set out Section 52 (1) q (ii) could be analysed on the touchstone of the judgement laid down in Eastern Book Company v. D.B. Modhak[5]. In the given case the Supreme Court of India rejected the ‘sweat of the brow’ doctrine(which conferred copyright on works on the basis that some amount of skill, labour and capital has been employed in the work), and held that the work must be original “in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author”. The present PIL therefore delivers a platform to interpret whether on account of the skill and judgment displayed in the combination and analysis of statutes with cases and other annotations, the private players of the market satisfy the requirement of commentary or original matter.

Apart from this, there are other concerns regarding publication of Bare Acts by private companies. In the Mumbai Grahak Panchayat case, it was observed, “[t]he Judges of this Court have repeatedly noticed that there are errors in the Bare Acts published by the private publications. …[I]n some publications, the amendments to the Enactments or to the Rules are not incorporated. In some cases, the amendments are not correctly reproduced.” This issue which has also been raised in the present petition is worrisome considering the wide use of such Bare acts, including by the Courts.

Conclusion

The present PIL seeks directions to the Government to take immediate steps to ensure availability of its own authentic, accurate and reasonably priced publications of all central acts, rules, notifications and their amendments and to immediately bar private publishers from doing the same. If this prayer of the petitioner is granted, one is left to wonder whether these directions could in fact result in an improvement in the accessibility of public domain materials or rather disincentivize the creation of new expressive works. It is no doubt the duty of the Government to provide for promulgating the statutes. However, in my opinion, allowing the Government (or anybody else) to monopolize publication and distribution of statutes is not a reasonable panacea. Alternatively, the Government could exercise its power to regulate the mode of promulgating these Acts, so as to ensure its accuracy and authority. Fair use provisions, must be interpreted so as to strike a balance between the rights and interests of the copyright holder, and the often-competing interest of the public in protecting the public domain. What remains to be seen is whether the Hon’ble Court takes such a balanced approach, or one more skewed toward either side.

Author: Ms. Prakriti Varshney, intern at Khurana & Khurana, Advocates and IP Attorneys. Can be reached at anirudh@khuranaandkhurana.com.

 References: 

[1] Union of India v. Vansh Sharad Gupta, W.P.(C) 4761/2016 & CM APPL. 22914/2016

[2]2017 SCC OnLineBom 726

[3]See Order dated 15.12.2017 inUnion of India v. Vansh Sharad Gupta, W.P.(C) 4761/2016 & CM APPL. 22914/2016

[4]548 F.Supp 110, 114 (N.D. Ga 1982)

[5] 2008 (36) PTC 1 (SC)

Freedom of Panorama

Freedom of panorama is a derived from German word Panoramafreiheit. It is the right of individual to publish photographs of the public buildings and the public structures which are attached to the public places permanently and is one of the exception of the Copyright law. “French-Italian model” and the “German-English model” are the two modular frameworks on which the freedom of panorama is based. On one hand, where the French-Italian model does not lay down the restrictions on the copyright law, the German-English model, on the other hand, states freedom of panorama as an exception to the copyright law. Indian Copyright Act has incorporated the German-English model with certain modifications to suit the Indian scenario.

Article 5 of the Berne Convention,1886 has laid down the “principle of assimilation” which means that countries who are the members of the convention enjoy the rights as laid down in the convention along with the national law of the State. Article 17 of the Convention has permitted the States to enact necessary legislation to prevent the infringement of any work thereby following one of the essential principles of the International Law. Article 9 of the Berne Convention mentions that audio and visual reproduction of copyrighted work amounts to the copyright infringement. Article 9 of the Berne Convention is contradictory to the Section 52 of the Copyright Act, 1957 as it follows the principle of assimilation and the basic principles of the International Law.Italian Copyright law follows the French-Italian model by recognizing the freedom of panorama and states that the photographs and video recording of sculptures, artistic work and architectural structures having public access, will not amount to copyright infringement if such a reproduction is used only for personal purpose but, if it such photographs or video recordings are used commercially, it will amount to the copyright infringement.

For example: – Photography of the Eiffel Tower at night amounts to copyright violation. However, photography during the daytime is rights-free and does not amount to infringement. The interesting explanation to such a law in France is that the in 1923 the creator and the owner of the copyright of the Eiffel Tower died and the Eiffel Tower entered public domain in the year 1993. Thus, in 1999 Las Vegas had its own Eiffel Tower. Although, the copyright expired in 1993 the lights in the Tower were installed in the year 1985, adding to the aesthetic beauty of the pre-existing structure and classifying the tower’s light display as an “art work” within the purview of Copyright Laws. Hence, the night-time photography of Eiffel Tower will amount to the copyright infringement, as it does not fall within the public domain till date.[1]

Looking into the Indian scenario, even though there is no provision explicitly defining the Freedom of Panorama, the Copyright Act, 1957 under Section 52 sub-clause (t) and sub-clause (u) has provided for the provision related to the Freedom of Panorama. Section 52(t) states that the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or any other work of artistic craftsmanship, permanently situated in a public place or any premises to which the public has access, will not amount to copyright infringement. Section 52(u) has included the cinematographic films within the ambit of the freedom of panorama.According to sub-clause (u)the following inclusions in the cinematographic films does not amount to the copyright infringement:-

  • Any artistic work which is situated permanently in a place which can be accessed by the public.
  • Any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film.
  • Use of the author’s artistic work where the author is not the copyright owner or it was the author’s commissioned
  • Reconstruction of any structure or building in accordance with the architectural plans by which the building was constructed.

All in all, Section 52 of the Copyright Act, 1957 has resolved a potential conflict which could have arisen, if any architectural structure or any sculpture displayed in the public is photographed or used in a cinematographic film without the prior permission of the artist.In practice, Section 52 does conflict with certain aspects of the copyright law yet, it has been seen that Section 52 prevails over the other provisions.

Neelkant Darshan was a short feature film shot in the Akshardham Temple where photography and videography is prohibited. Section 14(c)(i)(A) of the Copyright Act, 1957 provides the architects and the author of an architectural work have the right to protect their work from being stored in any medium by electronic means. A tourist if photographs the Akshardham Temple by virtue of Section 14(c)(i)(A) will be deemed to infringe the copyright. However, by virtue of Section 52 of the Copyright Act, 1957, such photography and videography will not amount to infringement of copyright as the temple is situated permanently in an area easily assessable to the public.Therefore, it is quite evident that Copyright law is clear about the concept of Freedom of Panorama; however, conflict may arise if a building is trademarked and recorded in a video!

About the Author: Trishala Sanyal, intern AKK New Law Academy Intern at Khurana and Khurana Advocates and IP Attorneys and can be reached at  info@khuranaandkhurana.com

Reference:

[1] https://petapixel.com/2017/10/14/photos-eiffel-tower-night-illegal/

Copyright Protection to Architectural Works

Issue of infringement of architectural works requires understanding of protection of works when they are reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

For example: if an architect uses a part of the architectural design of another architect in order to build his own building, without the prior permission of the architect who owns the copyright from which the other architect derives his work, it would amount to infringement. This permission may be obtained through an assignment or a license for the use of the same. However, not all inspiration amounts to infringement of copyright. Copyright law allows portions of a copyrighted work to be used without the author’s permission for specific purposes such as criticism, comment, news reporting, research, teaching etc. under the doctrine of fair use which is often used as a defense.

The protection of architectural works through Copyright against infringement and imitation is provided in the copyright act 1957. Therefore answer to the question of whether architects could protect their “Architectural works” from infringement? Is yes. Discussion on what is protected as part of Copyright of a building, needs clear understanding of what is a copyright, what is an architectural work, and is it an work of art or not?

Architectural works were not afforded legal protection or any form of copyright protection till the “Berne Convention” of 1908 was revised, after which it was included in the ambit of “literary and artistic” works protected at international level.

Despite architectural works being considered artistic works, some structures have been kept outside the scope of copyright protection, like bridges, dams, tents, boats are not considered “buildings”.

 Freedom of Panorama

“Freedom of Panorama” is an exception to the other provisions of the Copyright Act, 1957. The term has not been explicitly incorporated in the Act but Section 52 of the Copyright Act interprets similar meaning to the terminology and lays down certain acts which do not lead to copyright infringement. The section is explained by the following points:-

  • Any painting, engraving, drawing or the display of a work of architecture, photograph of a work of architecture can be made or published and has been incorporated under section 52 (1)(s).
  • The making and publishing of a drawing, painting, photograph of a sculpture, or other artistic work, engraving or any other work of artistic craftsmanship, if such work is situated in a public place permanently or any premises where the public has an access.
  • Any artistic work which is permanently situated in a public place or where the public has an access is included in a cinematograph film.
  • It is in this regard that the Indian Copyright Law can be appreciated, as against European and American copyright law which allows this freedom only if the copyrighted work is used for non-commercial or educational purposes, the Indian law is not subject to such demarcations.

Protection under the ambit of Copyright Act

“In general, any original work made by a person is eligible for copyright protection. Originality refers to the fact that an author must have created the work through the application of the author’s own creativity and labour. In addition, such work must have been reduced to a material form. Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright, although it is advised that the author/owner of the copyright gets their work registered to make sure they can enforce the rights conferred by the Copyright Law, should their copyright be infringed. Different countries have different laws pertaining to copyright of artistic works.

Indian law provides protection to the architectural works under the uniform copyright law. Section 13 of the Indian Copyright Act, 1957 numerates the types of artistic works that are eligible for copyright protection.

According to Copyright act 1957-

Section 2(b) “work of architecture” means any building or structure having an artistic character or design, or any model for such building or structure;

Section 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) a work of architecture; and

(iii) any other work of artistic craftsmanship.

In India architects can register their original works under the Copyright registration system. Also, being a signatory to Berne Convention as well as Universal Copyright Convention, works protected in other Berne signatory countries will automatically be protected in India without the need for registration. Architecture may be defined as the “art of designing and constructing buildings”, and therefore has both functional as well as artistic attributes. Section 57 of the Indian Copyright Act also takes into consideration the moral rights of the creator of the artistic work as well as the rights of integrity and attribution of the author. The Indian copyright law has also widened its scope to allow protection to the architectural design of commercial buildings. We, at Khurana & Khuranahadthe opportunity to register the copyright for architectural design of a commercial building for our client Riis Retail, a company based out of Denmark, vide diary no. 12158/2010/CO/Aon 10thof November, 2010!

 Protection under the ambit of Design Act

Section 2(d) of the Design Act, 2000 has defined the term design as “ the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.

The Design Act, 2000 provides for registration of Architectural works under Class 25-03 and 25-99. Due to multiple provisions conferring protection to architectural works, a conflict mayarise, whether Architectural works should be protected under the Copyright Act, 1957 or under the Design Act, 2000 or whether Section 15(2) of the Copyright Act, 1957 would come in play for determination of what works would be protected through Designs vs Copyrights.

Application of Mischief rule by the courts

Mischief rule pertains to the interpretation of the statutes and is applied by the Courts when there is a conflict between two laws or provisions of law on interpreting it by the words as stated in the particular law or is interpreted by the courts to resolve the confusion in its application. In the case of Microfibers Inc. vsGirdhar& Co. &Anr.,[1]the question was whether the design of an “artistic work” in fabrics should be protected under the Copyright Act or the Design Act. The court by applying the mischief rule stated that the “the mischief sought to be prevented is not the mischief of copying but of the larger monopoly claimed by the design proponent inspite of commercial production.[2] The court had held that if the design is registered under the designs act, the design would lose its copyright protection, and if the design has not been registered it would still continue to enjoy copyright protection as long as the threshold limit of its application through an industrial process does not go beyond 50 times, after which it shall lose its copyright protection. Delhi High Court by giving a reference to the particular case in Holland L.P. &Anr. vs A.D. Electro Stell Co. Pvt. Ltd[3]., where it was argued by the plaintiff that under section 2(c) read with section 13 of the Copyright Act he had the “right to convert a two dimensional artistic work into a three dimensional constructions”[4]and that the “drawings” are capable  of being copyrighted under Section 15(2) of the Copyright Act. Thus by the virtue of the two statements the copyright should stay with him. The court rejected the plaintiff’s contention and stated that the drawing was capable of being registered under the Design Act and it would lose its copyright if it is reproduced by the industrial process more than 50 times and would also fall under the public domain.

International Conventions protecting the architectural structures 

 Article 2(1) of the Berne Convention requires member countries to extend copyright protection to, among other things, “works of . . . architecture . . . and three-dimensional works relative to . . . architecture.”[5]However, the Berne Convention does not explicitly define what works constitute a “work of architecture” entitled to protection, except that such works may be “incorporated in a building or other structure.” The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) explicitly incorporates the Berne Convention’s mandate for architectural copyright protection without further defining what constitutes a work of architecture. Architectural works were not included in the Convention of 1886, except for the Article 4 which states “plans, sketches and artistic works relating to architecture were specified.

Thus, the protection of architectural works is an issue that has not been understood and discussed enough. A large number of architects or designers lack the knowledge to protect and enforce the IP rights in their building designs. Most of the countries have now modified their laws to meet the requirements of the Berne Convention with regard to the copyright protection for architectural works. Further, the basic use of spaces such as windows and doors, which are elementary to any building’s structure, are not themselves protected by copyright law. In such a scenario the Delhi High Court’s judgment and the harmonious construction of the Copyright Act and the Design Act has acted as a balancing beam to tackle the issue.

.

About the Author: Trishala Sanyal, AKK New Law Academy and Aditya Sehgal, Symbiosis Law School Intern at Khurana and Khurana Advocates and IP Attorneys and can be reached at  info@khuranaandkhurana.com

[1] RFA (OS) NO.25/2006

[2] https://indiankanoon.org/doc/112937069/

[3] CS(COMM) 83/2017

[4] https://indiankanoon.org/doc/151057483/

[5] https://www.law.cornell.edu/treaties/berne/2.html

Copyright Protection for Architectural Works- Part II

Application of Mischief rule by Courts

Mischief rule is pertains to interpretation of statutes, and is applied by Courts when there is a conflict between two laws or provisions of law on interpreting it by the words as stated in the particular law or is interpreted by the courts to resolve the confusion in its application. Delhi High Court in Microfibers Inc. vs Girdhar& Co. &Anr.[1] where the “artistic work” in the fabrics was in question that if the design would be protected under the Copyright Act or the Design Act. The court by applying the mischief rule stated that the “the mischief sought to be prevented is not the mischief of copying but of the larger monopoly claimed by the design proponent inspite of commercial production.[2]  In other words it means that the copyright is protected in an article till 50 reproductions by the industrial process are made and beyond this limit the copyright ceases to exist. Delhi High Court by giving a reference to the particular case in  Holland L.P. &Anr vs A.D. Electro Stell Co. Pvt. Ltd[3]. , where it was argued by the plaintiff that under section 2(c) read with section 13 of the Copyright Act that he had the “right to convert a two dimensional artistic work into a three dimensional constructions”[4] and that the “drawings” are capable to be copyrighted under Section 15(2) of the Copyright Act thus by the virtue of the two statements the copyright should stay with him. The court rejected the plaintiff’s contention and stated that the drawing was capable to be registered under the Design Act and it would lose its copyright if it is reproduced by the industrial process more than 50 times and had also entered the public domain.

International Conventions protecting the architectural structures 

Article 2(1) of the Berne Convention requires member countries to extend copyright protection to, among other things, “works of . . . architecture . . . and three-dimensional works relative to . . . architecture.”[5] However, the Berne Convention does not explicitly define what works constitute a “work of architecture” entitled to protection, except that such works may be “incorporated in a building or other structure.” The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) explicitly incorporates the Berne Convention’s mandate for architectural copyright protection without further defining what constitutes a work of architecture. Architectural works was not included in the Convention of 1886, except for the Article 4 which states “plans, sketches and artistic works relating to architecture were specified.

Thus, the protection of architectural works is an issue that has not been understood and discussed enough. A large number of architects or designers lack the knowledge to protect their building designs intellectually. Most of the countries have now modified their laws to meet the requirements of the Berne Convention with regard to the copyright protection for architectural works. Certain structures are considered to be outside the protection of copyright law. For instance, certain structures such as bridges, dams, cloverleaf’s, tents, recreational vehicles, walkways, mobile homes, and boats cannot be considered “buildings”. Further, the basic use of spaces such as windows and doors, which are elements that can be found in the majority of buildings, are not in and of themselves protected by copyright law. In such a scenario the Delhi High Court’s judgement and the harmonious construction of the Copyright Act and the Design Act has acted as a balancing beam to tackle the issue.

[1]RFA (OS) NO.25/2006

[2]https://indiankanoon.org/doc/112937069/

[3]CS(COMM) 83/2017

[4]https://indiankanoon.org/doc/151057483/

[5]https://www.law.cornell.edu/treaties/berne/2.html

About the Author: Trishala Sanyal, AKK New Law Academy and Aditya Sehgal, Symbiosis Law School Intern at Khurana and Khurana Advocates and IP Attorneys and can be reached at  info@khuranaandkhurana.com

Sarine Technologies Ltd v. Divora Bhandari Corporation & Ors

When it comes to one of the most contentious aspects of copyright law in software, two things come to our mind:

  1. The idea-expression dichotomy and;
  2. Which part of software is copyrightable, and which part is patentable.

The present case of Sarine Technologies Ltd. v. Divora Bhandari Corporation &orsunfolds many perplexing facts of the copyright Law.

The Plaintiff is an Israeli company established in 1988 that is engaged with the business of providing diamond dealers/ merchants with the best in class equipment and services for mapping, processing, and trade of diamonds and other gemstones.They developed“Advisor” software that generates an optical planning and polishing plan so that maximum value can be derived from rough stone in furtherance of its business.

The plaintiff claimed their copyright ownership on the software “Advisor”, stating that computer program comes under the domain of copyright, and therefore the same is claimed under copyright ownership on the ‘sixth version of the Advisor software’ in the USA and Israel through registration and common law respectively. They claimed the same in India as well. Further, they asserted that Defendants illegally use their Advisor software, and have also ‘developed pirated software copy’ in the name of “Mandakini- Work Manager”, leading to their unjust enrichment, and hence the defendants are liable under section 51 of the Copyright act, 1957.

On the other hand, Defendants are engaged in the business for four years for providing scanning services to diamond merchant, and also provide such scanning machines for sale to its customers. For this purpose, they have developed software namely ‘Mandakini- Work Manager’ without any reference to the plaintiff’s software.

The suit was originally filed in the district court of Surat for infringement by the defendants under sections 51 r/w 55, 58,63 and 63B of Copyright Act, 1957, where the permanent injunction restraining the defendants to engage with the copyrighted software and damages prayed by the plaintiffs which were enhanced to INR 50 Crores due to which it was transferred to Commercial court in consonance with the pecuniary jurisdiction.Further, plaintiffs filed an “Interim Injunction Application” under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 seeking an ex parte ad interim injunction restraining the defendants from using, distributing, selling, offering for sale any inclusion scanning services which is claimed to have been infringed by the defendants.

There were few questions that were answered in the proceedings of the case:

  1. How has the plaintiff claimed its copyright protection in India when neither it is first published nor it is registered in India?

 Plaintiff  has copyright ownership on the ‘Avisor software version 6.0’ in Israel, as it was first published in the country and they claimed copyright in the USA through copyright registration according to Title 17 of US copyright Act.[1] Both these countries are party to the Berne Convention and so is India. By virtue of being signatory to the Berne Convention, the plaintiff can claim their copyright ownership on the said software.[2]In addition to this, section 40 of the Copyright Act, 1957 enables the plaintiff to copyright protection in India as it extends protection to the foreign works.

The defendants alleged that there is no evidence as to whether the software is being developed by the employees in ‘contract of service’ or ‘contract for service’. To this, the plaintiff put forth that where the work is developed in course of the author’s employment, under contract of service or apprenticeship, the employer shall be the first owner of the work of copyright, in absence of any agreement to the contrary.[3] Further, plaintiffs cleared that although they have copyright in version 6 of their software, due to this reason, they have copyright in all derivative works which include previous versions of the computer programme as well.[4]

  1. Whether the software is copyrightable or not?

Going by the statutory provisions, section 2 (o) of the copyright Act, 1957, computer program is included in the definition of ‘literary work’ but not software per se. Further, section 2 (ffc) defines computer programs as set of instructions expressed in words, codes, schemes or in any other form including machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result. This principle was also supported in SAS Institute Inc v World Programming Ltd[5], where the EU court of justice, by referring to the Software directives held that expression of ideas in form of source code/ object code is protected under the copyright law and not the ideas in form of functionality.In the present case, the plaintiff claimed that they have copyright over their software in the USA through its registration under statutory provisions[6] and in Israel through common law.

Consequently, another question arose pertained to where the functionality aspect of the software falls? The plaintiff claimed that their software was the only software that could scan the diamond for marking the edges to be cut by the diamond cutters in the diamond industries. Additionally, they stated that in order to provide inclusion scanning services, Defendants have ‘developed pirated software’ and prayed for injunction referring to Microsoft Corporation v. Vijay Kaushik, where the court granted an injunction on account that the defendants had pirated the plaintiffs software.The plaintiff had also submitted few evidences in sealed envelope under section 151 of CPC, 1908, requesting the court to not to disclose the same to the Defendants. This was refuted by the Defendants stating that this is against the natural justice not to show the evidences on which certain allegations are made out on the Defendants. It was further argued by the Defendants that development of software cannot be referred to as ‘piracy’ as Piracy pertains to use of an unlicensed software or use under an invalid license, and therefore reference to the term “developed a pirated software” is technically incorrect, and demonstrates Plaintiffs’ incorrect understanding of how software works and where Copyright subsists in the software. In the present case, the Defendant independently developed their own software by using their own intellect and therefore the source code of the Defendants’ software is completely different from that of the Plaintiff, which scans the diamonds as to show edges of diamond which are to be cut and polished. Therefore, although functionality of Gal Manager of Plaintiff may be overlapping with Work Manager of the Defendant, the implementation/source code/object code is completely different, which is a clear indicator of non-infringement on the copyright of the Defendant. Moreover, law of copyright does not protect ideas/functionality and instead only gives protection to the particular/specific expression of ideas.[7] Defendants also claimed that they used Advisor software (version 4.7) only by acquiring licence, and that the same was clearly stated in the report of the Local Commissioner. Thus, the defendants cannot be held liable for infringement of copyright.

Lastly, Plaintiffs claimed that results generated by the Defendant’s software are deceptively similar to theirs by relying on reports of Private Investigator appointed by them. The report stated that the output result of the scanned diamond through the Defendant’s software was the same as that of the plaintiff’s output result of Advisor software.The Defendants averred that this appointment of private investigator is flawed as no procedure of law was followed and thus, the veracity of the report cannot be relied upon. However, by looking at the plaintiff’s claim comprehensively, the Plaintiff only focussed on the output results/functionality of the defendant’s software, which does not determine copyright infringement. Neither did the Plaintiff disclose any source/object code that it claims to have been infringed by the Defendants, nor did it demonstrate any similarity in the source/object code by comparing it with the Work Manager software of the Defendants.  Moreover, source code can be written in different ways to perform similar function, which need not infringe any copyright of others. This is the rationale behind computer program coming under the ambit of ‘literary work’ for Copyright protection. Like so, the Defendant has independently developed software‘Mandakini- work manager’ that provides a similar file with different codes without any infringement.Defendants agreed that they are using advisor software version 4.7 but only licensed version of said software, which was clearly evidenced in the report of Local commissioner who was appointed by the High Court of Gujarat to investigate defendant’s premises on 28th June, 2017. This was initially prayed by the plaintiff under order XXVI Rule 9 and 10 of the Civil Procedure Code,1908, before the district court which was denied. However, it was successfully appealed in the High Court.

Further in support of their contention, Defendants referred to SAS Institute Inc v World Programming Ltd[8] where the Chancery court, by referring to the software directives, held that “only the expression of a computer program is protected and …ideas and principles which underlie any element of a computer program…are not protected by copyright.’[9]It was upheld by the Court of appeal. The applicability of this case was questioned by the plaintiff as the referred directive was repealed and also that the software directives are based on local European Laws. But in the present case the Hon’ble court confirmed that new directives[10] are in consonance with the Berne Convention and clearly mention the above held decision by the Chancery Court, hence affirmed the applicability of the said case.

The court raised its concern over the fact that the plaint was silent on comparison of the source code and object code of both the software- ‘Advisor’ and ‘Mandakini- work manager’. The plaint has only focussed on functional aspect of the software mentioning that the extension files generated by plaintiff’s as well as defendant’s software is same, which is subject matter of patent and not copyright. The court highlighted the principle that expression of idea is protected under the copyright law and not the ideas[11].Protection to ideas extends only to the protection granted by Patents. The court referred to Lotus Development Corporation v. Borland International Inc[12], where the United States Supreme Court had upheld that only the object code and source code is protected under copyright and not the operating and application software. The court tested the three step process called Abstraction-Filtration-Comparison Test which would determine the non literal elements of software that are protected by Software.[13]  The court did not find any incriminatory results that prove defendants wrong. Lastly, the court relied upon the reports of Local commissioner, who was appointed to inspect the defendant’s premises, where they did not find any infringing material. Hence on considering three issues, i.e. a) whether the matter is a prima- facie case of copyright infringement, b) where do the balance of convenience lie and; c) whether the plaintiff has suffered an irreparable loss. The court declared that the plaintiff could not proof the validity of the suit filed by them, hence no prima-facie case could be established and therefore, the Hon’ble court dismissed the petition.

Therefore, it is clear from the present case that the Court has firmly quoted that copyright does not protect ideas but only the expression of those ideas. The court made it clear in case of computer programs that only the expression of a computer program is protected, and ideas/principles that underlie any element of a computer program are not protected by copyright. Accordingly,  the court dismissed the petition.

[1] Section 101 : Definition of Computer Program; Section 102: subject matter of copyright.

[2]Article 1, Berne Convention For Protection Of Literary and Artistic Works: The countries to which this Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works.

[3]Section 17, proviso (c)

[4]Aspen Tech.,Inc. V. M3 Tech., Inc.

[5][2012] E.C.D.R. 22

[6]Title 17 of the United States Code

[7]Mishra BandhuKaryalay&Ors v. Shiv RatanlalKoshal, AIR 1970 MadhPra 261

[8][2012] E.C.D.R. 22

[9]SAS Institute Inc v World Programming Limited; [2013] EWCA Civ 1482

[10]Directives 2009/24/EC

[11]R.G Anand v. Delux Films &ors, AIR 1978 SC 1613)

[12] Lotus Dev. Corp. v. Borland Int’l, 49 F.3d 807, 1995 U.S. App.

[13]Computer Associates International, Inc. V. Altai, Inc. 982 F. 2d 693(2nd Circuit, 1992)