Professional Documents
Culture Documents
99)
This is the first US Supreme Court case which dealt with the idea-
expression dichotomy.
The facts of the case are that Selden devised a new method of
financial accounting for his business. His new scheme made it possible
to record the entire operations of the business for a given period of
time on either a single page on two facing pages. He published a short
book explaining his new system, along with accompanying forms that
would be used in putting the system into operation. Baker
subsequently prepared forms that were not identical to Selden’s but
were similar to them and were tailored using Selden’s system. Selden
sued Baker for infringement.
Responding to the fact that the Defendant had used diagrams used by
the Plaintiff in his work, the court stated that, “the very object of
publishing a book on science or the useful arts is to communicate to
the world the useful knowledge which it contains. But this object would
be frustrated if the knowledge could not be used without incurring the
guilt of piracy of the book. And where the art it teaches cannot be used
without employing the methods and diagrams used to illustrate the
book, or such as are similar to them, such methods and diagrams are
to be considered as necessary incidents to the art, and given therewith
to the public; not given for the purpose of publication in other works
explanatory of the art, but for the purpose of practical application.”
Thus, if a diagram is the practical use of the idea, it cannot be
protected.
Najma Heptulla v. Orient Longman Ltd. & Ors. AIR 1989 Delhi
63.
Judge: B.N. Kirpal J.
The facts of the case:
This case concerned publication of 30 pages (erstwhile undisclosed) of
the book, India wins Freedom, written by Maulana Azad. While writing
the book, Maulana Azad was aided by Prof. Humayun Kabir. The
process by which the book was written by the two was that Maulana
Azad had, during his life time, dictated and given certain notes to Prof.
Humayun and out of that material Prof. Humayun had composed the
book which had been approved by the late Maulana Azad.
Thus, the court held that Prof. Kabir should have consulted the legal
heirs/representatives of Azad before entering into an agreement with
Orient Longman. A letter/document to this effect was examined by the
court, whereby the Grandmother of the Plaintiff had agreed to the
arrangement between Prof. Kabir and Orient Longman, being entitled
to receive a share of royalty from the sale of the book. The court used
this document as the basis of stating that the consent of the legal
heirs/representatives of Azad had been validly obtained. Consequently,
the agreement entered between Prof. Kabir and Orient Longman was
valid and the Plaintiff’s application for injunction was dismissed.
Applying these points to the facts at hand the Apex Court concluded
that the movie and the play explored the similar idea and problem of
provincialism. However, the movie also explored other themes.
Moreover, the details of the movie relating to the manner,
arrangement, situation to situation, scene to scene with minor changes
or super additions or embellishment here and there, made the movie a
different expression of the similar idea in comparison to the play.
Consequently, any overlap stemmed from the fact of similar ideas and
thus the movie could not amount to literal or substantial copying of the
play. Based on this decision, the Apex Court confirmed the dicta of the
lower courts and dismissed the appeal.
The facts of the case are as follows: Certain persons were appointed as
examiners for matriculation examination of the University of London on
a condition that any copyright in the examination papers should belong
to the University. The University assigned the copyright to the plaintiff
company. After the examination, the defendant company brought out
a publication containing a number of the examination papers, including
three which had been set by two examiners appointed by the
University. The plaintiff company brought a case of copyright
infringement against the defendant company. It was argued that since
the setting of the papers entailed the exercise of brainwork, memory,
and trained judgment, and even the selection of passages from other
author's work involved careful consideration, discretion and choice
they constituted original literary work. On the other and, the
defendants claimed that what they had done was fair dealing for the
purposes of private study which was permissible under the law.
The court agreed that the material under consideration was a literary
work. According to the court, “The words 'literary work' cover work
which is expressed in print or writing, irrespective of the question
whether the quality or style is high. The word 'literary' seems to be
used in a sense somewhat similar to the use of the word 'literature' in
political or electioneering literature and refers to written or printed
matter.” The court noted that the definition of literary work is
not restricted to novels or other great works of literature but
also extends to maps, charts, tables and compilations. Thus,
there isn’t any need for any literary style for the purposes of
attaining copyright protection. Consequently, the court
concluded that “literary work” covers work which is expressed
in print or writing, irrespective of the question whether the
quality or style is high and papers set by examiners are, in the
court’s opinion, "literary work" within the meaning of the
Copyright Act.
With respect to the originality issue, the Court held that the term
'original' under the Act does not imply original or novel form of ideas or
inventive thought, but the work must not be copied from another
work - that it should originate from the author.
The next question which followed was whether question papers
satisfied the requirement of originality. In this regard the court held
that, “The word “original” does not in this connection mean that the
work must be the expression of original or inventive thought. Copyright
Acts are not concerned with the originality of ideas, but with the
expression of thought, and, in the case of “literary work,” with the
expression of thought in print or writing. The originality which is
required relates to the expression of the thought. But the Act
does not require that the expression must be in an original or
novel form, but that the work must not be copied from another
work - that it should originate from the author. In the present
case it was not suggested that any of the papers were copied. The
professors who set the papers proved that they had thought out the
questions which they set, and that they made notes or memoranda for
future questions and drew on those notes for the purposes of the
questions which they set. Thus, the papers which they prepared
originated from themselves, and were, within the meaning of the act,
original and could be subject matter of copyright. – Thus the work
originated from the author.
In the light of these arguments the Apex Court held that, “the judicial
pronouncements of the Apex Court would be in the public domain and
its reproduction or publication would not infringe the copyright. That
being the position, the copy-edited judgments would not satisfy the
copyright merely by establishing amount of skill, labour and capital put
in the inputs of the copy-edited judgments and the original or
innovative thoughts for the creativity are completely excluded.
Accordingly, original or innovative thoughts are necessary to establish
copyright in the author's work. The principle where there is common
source the person relying on it must prove that he actually went to the
common source from where he borrowed the material, employing his
own skill, labour and brain and he did not copy, would not apply to the
judgments of the courts because there is no copyright in the
judgments of the court, unless so made by the court itself. To secure a
copyright for the judgments delivered by the court, it is necessary that
the labour, skill and capital invested should be sufficient to
communicate or impart to the judgment printed in SCC some quality or
character which the original judgment does not possess and which
differentiates the original judgment from the printed one. The
Copyright Act is not concerned with the original idea but with the
expression of thought. Copyright has nothing to do with originality or
literary merit. Copyrighted material is that what is created by
the author by his own skill, labour and investment of capital,
maybe it is a derivative work which gives a flavour of
creativity. The copyright work which comes into being should
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.
To claim copyright in a compilation, the author must produce
the material with exercise of his skill and judgment which may
not be creativity in the sense that it is novel or non- obvious,
but at the same time it is not a product of merely labour and
capital. The derivative work produced by the author must have
some distinguishable features and flavour to raw text of the
judgments delivered by the court. The trivial variation or
inputs put in the judgment would not satisfy the test of
copyright of an author.”
Applying this law to the facts the Apex Court concluded that,
“Arrangement of the facts or data or the case law is already included in
the judgment of the court. Therefore, creativity of SCC would only be
addition of certain facts or material already published, case law
published in another law report and its own arrangement and
presentation of the judgment of the court in its own style to make it
more user- friendly. The selection and arrangement can be viewed as
typical and at best result of the labour, skill and investment of capital
lacking even minimal creativity. It does not as a whole display
sufficient originality so as to amount to an original work of the author.”
However, as regards paragraph numbering and other such details, the
court held that, “However, the inputs put in the original text by the
appellants in (i) segregating the existing paragraphs in the original text
by breaking them into separate paragraphs; (ii) adding internal
paragraph numbering within a judgment after providing uniform
paragraph numbering to the multiple judgments; and (iii) indicating in
the judgment the Judges who have dissented or concurred by
introducing the phrases like 'concurring', 'partly concurring', 'partly
dissenting', 'dissenting', 'supplementing', 'majority expressing no
opinion', etc., have to be viewed in a different light. The task of
paragraph numbering and internal referencing requires skill and
judgment in great measure. In these inputs put in by the appellants in
the judgments reported in SCC, the appellants have a copyright and
nobody is permitted to utilize the same.
Consequently, the Apex Court concluded that, “For the reasons stated
in the aforesaid discussion, the appeals are partly allowed. The High
Court has already granted interim relief to the plaintiff- appellants by
directing that though the respondent- defendants shall be entitled to
sell their CD-ROMS with the text of the judgments of the Supreme
Court along with their own head notes, editorial notes, if any, they
should not in any way copy the head notes of the plaintiff-appellants;
and that the defendant-respondents shall also not copy the footnotes
and editorial notes appearing in the journal of the plaintiff-appellants.
It is further directed by us that the defendant-respondents shall not
use the paragraphs made by the appellants in their copy-edited
version for internal references and their editor's judgment regarding
the opinions expressed by the Judges by using phrases like
'concurring', 'partly dissenting', etc. on the basis of reported judgments
in SCC. The judgment of the High Court is modified to the extent that
in addition to the interim relief already granted by the High Court, we
have granted the above-mentioned additional relief to the appellants.”
Thus, the court interpreted the Purpose and character of the use
parameter under the fair use doctrine, and stated that, “the central
purpose of this investigation is to see ... whether the new work merely
supersedes the objects of the original creation, or instead adds
something new, with a further purpose or different character, altering
the first with new expression, meaning, or message; it asks, in other
words, whether and to what extent the new work is transformative.” If
the work is found to be transformative, it would go on to satisfy the
doctrine of fair use. On this basis the court concluded that the work of
the Defendant’s was clearly transformative, as Live Crew added
substantially new words to the original tune and changed the format
from ballet to rap. Given the transformative nature of the Defendant’s
work, the same was not a copyright infringement of the Plaintiff’s work.
Also, addressing another factor in the application of the fair use
defence, the court stated that the commercial nature of the parody did
not make it unfair or an infringement of the Plaintiff’s work.
449.
The Appellant was the proprietor of the medicinal preparation called
“Amritdhara”. As per the Appellant the medicinal preparation was
prepared and marketed by them in as early as 1901. The Respondent
claimed to be the manufacturer of “Lakshmandhara” (a similar
medicinal preparation) and applied for registration of the trade mark
for the same. The plaintiff opposed the registration of trade name
“Lakshmandhara” on the ground that “Lakshmandhara” was used to
denote the same medicine as “Amritdhara” and the word ‘dhara’ was
first used in conjunction with “Amritdhara” and hence, in view of the
similarity in names, and the likelihood of confusion to the public, their
plea of refusal of registration should be upheld. They contended that
the similarity goes on to deceive the public, as the ultimate purchaser
would be confused between the two goods due to the similarity.
Therefore, registering of the trade name “Lakshmandhara” would
amount to sanctioning passing off.
The respondent denied that such confusion could take place. He
argued that the composite “Lakshmandhara” taken as a whole cannot
cause any possible confusion with “Amritdhara”. The respondent also
claimed that he had been marketing the said drug under the name
“Lakshmandhara” since 1923 and the Appellant had not raised any
claim of passing off or deception earlier.
In the case it was held that the question whether a trademark is likely
to deceive or cause confusion by its resemblance to another already
registered is a matter of first impression and one for decision in each
case and has to be decided by taking an over all view of all the
circumstances. Second, the standard of comparison to be adopted in
judging the resemblance is from the point of view of an unwary
purchaser of average intelligence and imperfect recollection. Third,
while deciding whether such confusion or deception exists one should
consider the two names as a whole and not merely the component
words thereof separately, i.e., one should consider overall structural
and phonetic similarity.