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Ideas: Are they really bulletproof OR Are you surgically striked?

Updated: May 6, 2020

The present case goes on to show that merely copying an idea or an incident/event  does not amount to infringement of copyright as ideas or events per se are not copyrightable and that it is only the novelty of how such idea is expressed, is what stands protected under the copyright law regime.

The present case came up for consideration in a Delhi District Court before Additional District Judge Gaurav Rao just around a week prior to the release of the film “URI- The Surgical Strike” and it was alleged that the movie merely portrayed the real incident describing the surgical strike that was undertaken by the Indian Government on September 29, 2016, as had been described in the book written by the plaintiff, Nitin A Gokhale, tilted “The Surgical India – The Modi Way”. Further, the plaintiff claimed to immediately injunct the screening of the movie until the plaintiff was given his due credits. Further, he went on to claim a monetary compensation from the Director, Aditya Dhar and Producer, Ronnie Screwvala. To this plea the Defendant stated that the movie was based on a real time incident which was already there in the public domain and hence the question of copying does not arise. Additionally the idea behind any story can never amount to infringement of copyright unless it is the expression that has been copied[i].

On a careful reading of the Copyright Act, 1957, particularly Section 51(a) of the Copyright Act, 1957 which provides that when a person without a license granted by the owner of the copyright does anything, the exclusive right to do which is by the act conferred upon the owner of the copyright or permits for profits any place to be used for the communication of the work to the public where it constitutes infringement of copyright[ii]. Further, according to Section 51(b) of the Copyright Act, 1957 it is stated that when any person makes a sale or hire or sells or lets for hire by way of trade or display or offer for sale any copies of others work amounts to the violation of copyright[iii].

In the present set of circumstances, such infringement cannot be regarded to have taken place as the way the event has been expressed in the movie is clearly distinguishable from that of the book written by the plaintiff. It thus stands proven that just taking the idea of any work and not the expression of work does not amount to copyright violation. Additionally, when such claim pertains to having caused an infringement of copyright with regard to a historical event or on facts it per se is not copyrightable according to the scope & ambit of protection as given under Section 13 of the Copyright Act, 1957[iv].

Such contention can be substantiated through the catena of cases where both the Indian & English Judiciary has time and again upheld the fact that a case of copyright infringement shall only lie if the expression of idea is copied & not the idea especially when the idea is an event known to public at large or a fact[v].

In the noted case of R.G Anand vs. Delux Films (1978) 4 SCC 118, the plaintiff being an architect by profession and a play writer, screenwriter and producer of stage plays. He had a exchange of thought with Mr. Mohan Seghal about making a film on “Hum Hindustani” but nothing such proceed regarding the same. In 1955 the defendant makes a film named “New Delhi” which the plaintiff claimed that there was a copyright infringement of his work which was discussed earlier between them. He claimed the same of monetary compensation for copying his idea and potraying the same in the film. After reviewing the script of the film, the film and the play the court acclaimed that mere taking of an idea does not amounts to copyright infringement until and unless the expression is copied or the whole film is fully same as the story line of the plaintiff’s work. Thus in this case, the plaintiff’s request was dismissed and it was ruled that no copyright infringement had been done by the defendant.

In Indian Express Newspapers Bombay vs Jagmohan (1984) SCC OnLine Bom. 256, it was held that there lies no copyright in events per se.

In Fiest Publications vs. Rural Telephone Services Co. Inc. (1991) SCC OnLine US SC 46, it was held that copyright shall not subsist on facts as they are already there in the public domain and it is only the novelty of expression that entitles it a copyright.

Further, in the case of Zee Telefilms vs. Sundial Telecommunication (P) Ltd. (2003) SCC OnLine Bom. 344 it was held by the Bombay High Court that for an idea to receive a copyright, it should be expressed. Zeroing down of character, depiction of characters of a film is important. It is not necessary that shooting or camera rolling is a mandate. To invoke copyright, paper expression of an idea is a paramount & indispensible need.

In Barbara Taylor Bradford vs. Sahara Entertainment Ltd (2003) SCC OnLine Cal. 323, the same situation arose as of the instant case. In this case too allegations were raised that a book had been copied and a TV serial had been created. The plaintiff wrote a novel ‘A Woman of Substance’  & claimed that the defendant had copied the story and created a TV serial named Karishma ka Karishma on similar lines. The plaintiff was able to acquire an injunction to stop the serial but later, after scrutinizing the whole serial it was found that that there was no direct infringement of copyright. Further, it was also also stated that there was no direct copy of the story from the novel and thus it did not amount to infringement of copyright and ordered to pay the defendant Rs.1, 50,000 per week for making delay of their broadcasting to the public & to compensate the losses suffered by them as a result of such delay. Thus, it can be said that the originality of expression is always taken into account and not the originality of the central idea.

In Eastern Book Company vs. D.B. Modak (2008) 1 SCC 1, it was held that the Copyright Act is not concerned with the original idea but only with the expression of thought. Copyright has nothing to do with originality and literary merit and a work can be copyrighted on the basis of the originality of expression, arrangement, selection and co-ordination of the author. Further, there can lay no copyright in events, facts, ideas, plots, themes etc.

In the case of Beyond Dreams Entertainment vs. Zee Entertainment (2015) SCC OnLine Bom. 4223, it was held that a verbal exchange with regard to a Television serial titled “Pachwa Mausam Pyaar Ka” and later being titled as “Badki Bahu” by the defendant did not amount to infringement of copyright as such idea has not been expressed nor a concept note to the said effect was given by the plaintiff proposing the first name of the serial. Thus, the court ruled that no copyright can lie on an idea or information per se.

Thus, squarely applying the principle it can be concluded that ideas per se are not copyrightable and that the present case pertains to an event that is out in the public domain and thus a question of copyright infringement does not arise. Thus it can be concluded that the above case merely attempts to create an impediment & undue hardship for the film-makers, although this cases does not stand ground when tried with copyright laws.

[ii] Dr. Mathew Thomas; Understanding Intellectual Property; 1st Edition 2016; Eastern Book Company, Lucknow; Pg-72.

[iii] Dr. Mathew Thomas; Understanding Intellectual Property; 1st Edition 2016; Eastern Book Company, Lucknow; Pg-74-75

[iv] Dr. VK Ahuja, Law Relating to Intellectual Property Rights, Third Edition, 2017; Lexis Nexis, Gurgaon, Pg- 31-32.

[v]  VK Ahuja, Law of Copyright & Neighbouring Rights: National & International Perspectives Second Edition, 2015; Lexis Nexis, Gurgaon, Pg- 26.

By Atish Chakraborty, Debdeep Das & Souptik Bhattacharyya

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