This article has been written by Mr. Abdulla, a 4th year B.A.LL.B student of Aligarh Muslim University, Uttar Pradesh.

Imagine a writer giving hundreds of his efforts to write a script for a movie and later on he finds that someone else stole his story while he was narrating it to the producers. Now just feel the pain and aggrieved of that writer who gave all of his to write anything that was stolen by someone else. What he will do and how it will be done is the matter where the copyright comes under the light.

What is copyright?

Copyright is made up of two words that are ‘copy’ and right’. In simple words, copyright is an exclusive right provided to a person who wrote, invented or made something using his intellect. Copyright gives that person exclusive rights over that material.

For Example: Mr. A wrote a book named “The Life of Princess Diana” and he has a copyright over it. Now, since Mr. A has the copyright over that book no one else could use that piece of material other than him and he has all the rights over it.

According to Section 13 of the Copyright Act 1957, Copyright subsists in the following works:

1. Original literary, dramatic, musical and artistic works,
2. Cinematograph films and
3. Sound recordings.

Section 13 (a) protects original work, whereas Section 13 (b) and (c) protects derivative works.

What is Original Literary Works?

The script publication comes under the literary work. The copyright act clearly says that it is not concerned with the originality of ideas. It clearly says that the works must be expressed and it should contain minimal creativity. There must be an expression of ideas and in the case of a literary work, those ideas must be expressed in writing or should be printed. Most importantly, those expressions must not be copied from another work and must be originated from the intellect of the author. 

In University of London Press Ltd. v. University Tutorial Press Ltd. , Peterson J. stated that the literary work in the sense of protecting the rights of the author is only when the work is expressed.

In the famous case of Eastern Book Company v. D.B. Modak , The Supreme Court of India held that there are only two classes of literary works:

1. Primary or Prior works means the works that are original and don’t match with any existing material.
2. Secondary or derivative works means the literary works that are inspired or based on the existing literary subject matter.

What is Script Publication?

Script publication is the process of writing the script for the screenplay, movies, drama, theater, videos, etc. In simple words, script writing is the process of writing the kinds of stuff that could be performed or could be given a tangible shape later on.

As we’ve discussed above the original literary works, the script publication comes under the purview of Section 2 [d] [1] of The Copyright Act,1957 and is protected under Section 13 of The Copyright Act,1957. The only condition is that the work must be originally written by the author.

Copyright Challenges in Script Publication

The main challenge that primarily comes in the script publication is that disputes arise between two persons who claim that the script was originally written by him/her and the other person copied it or in layman’s language stole it from him. In the case of Anil Gupta v. Kunal Dasgupta, the issue before the court was that the plaintiff claimed that he disclosed an idea to the defendant about a wedding match-making reality show in which they’ll invite ordinary persons to choose their spouses on TV and he suggested a name ‘Swayamwar’. The plaintiff disclosed this idea to the defendant under a confidential agreement. Later on, the plaintiff found that the defendant was going to launch a TV program named ‘Shubh Vivah’ that has the same concept that the plaintiff disclosed to him in the concept note that he shared with the defendant.

The court rejected the arguments of the defendant that the concept note of the plaintiff is in the public domain and could be used. The Court held that the concept note of the plaintiff has adequate details and is eligible to be registered under the Copyright Act.

So, if the writer who wrote the script proves in any way that he/she is the original author of the said work then that person’s work must be protected under the Copyright Act.

In the case of Urmi Juvekar Chiang v. Global Broadcast News Ltd. , the plaintiff developed the idea of making a TV reality show in which she’ll go and follow the citizens in the different parts of the company and will put up their any civic problem. She wrote a script in the form of a concept note mentioning all the details of his idea. She titled it as “Work in Progress” and got it registered with the Films Writers Association, Mumbai. She sent her concept note under all the confidentialities to the producers and got a call from the producers and she discussed everything with the producers. Although, she didn’t receive any order from them. Later on, by promotions, she found that the defendant was launching a TV reality show which is almost similar to the idea of the plaintiff’s show that she shared with him. The defendant titled his show as “The Summer Showdown”. The court held that the defendant borrowed and lifted the idea of the plaintiff’s idea of “Work in Progress” and the only change that is that the defendant titled his show as “The Summer Showdown” is a cosmetic change. The court held that the idea of the plaintiff is registered under the Films Writers Association, Mumbai, and hence is protectable under the Copyright Act,1957.    

Section 17 of The Copyright Act states that the work created by the author in the course of employment is. It says that if the work created by the employee (if he/she) is subjected to any agreement/contract/service and he has done any work during the course of that employment, then the employer will be the first owner of that work. In the very famous case of V.T. Thomas v. Malayala Manorama, the matter before the court was that who owns the property right over the cartoons created by the cartoonist who works in the newspaper. The court held that the employer did not obtain a property right on the disputed cartoon because although the employee gave his cartoons to the employer and published them in his newspaper but the cartoonist invented them before joining the newspaper. Therefore, the copyright over the cartoons was given to the cartoonist i.e. the employee.

In the landmark case of RG Anand v. Deluxe  Films , the Supreme Court of India held 7 important points in its judgment:

1. There can be no copyright claim in an idea, subject matter, plot, etc.
2. It has to be seen whether the work which is claimed to be copyrighted has similarities or not and what is the nature of those similarities. Meaning thereby, it has to be seen whether are those similarities fundamental or substantial. 
3. Test: If a man of common prudence will see or read it then it should appear to be copied to him.
4. There will be no question of infringement where the theme is the same but that theme is presented differently.
5. If there exists a lot of similarities and along with those similarities, a lot of dissimilarities are also there then it negates the intention of copying. 
6. If the viewer instantly gets the idea that the work largely is a copy of the play then it will be said that the copyright has been violated.
7. To prove that the movie is an infringement of the play written by the original author and his right of copyright is infringed, the burden of proof will be on the plaintiff.

What is an Anthology? 

According to the dictionary meaning, an Anthology is a compilation the writings, poems, etc often, on the same subject but by different authors. In simple language, the anthology is the accumulation of writing, poems, etc by different authors in one book which is common but does not need to be on the same subject. For example: The compilation of all the poems of Mr. Harivansh Rai Bacchan into a book.

Copyright Challenges in Anthologies.

For a work to be original, it is important that the work must not be copied from any pre-existing work. As we’ve discussed above that copyright law doesn’t care about the idea or thought but it gives all the respect to the work that is expressed and in matters of literary work it must be in writing or printing. In crux, originality must be related to the expression of thought. But interestingly, the Act does not enforce that the work must be original or novel in its form. It says that if a person used the existing sources in inventing something new by using his skills and labor then that person must be awarded for his labor and pain done by him. The doctrine of “sweat of the brow” says that the person who devotes his time, uses his skills and does the labor and invents something by using the existing material then that person should be awarded for his labor and pain done by him.

For example: A person collects all the telephone numbers of the hospitals in the country and makes a telephone directory. If we observe, then we will find that the person is not the owner of the telephone numbers neither did he use any intellect to form the telephone directory but he did the labor, devoted time to research and collection of all the numbers, and then invented a book containing all the telephone numbers in a book. As per the doctrine of the sweat of the brow, that person must be awarded for the labor he did and his work must be protected under copyright law. The Supreme Court of The United States of America rejected the doctrine of the sweat of the brow in the case of Feist Publications Inc. v. Rural Telephone Service Co. Inc.  It was held that originality is the sine qua non of the copyright. Further held that the work must contain a minimal degree of creativity in it, even if very low then it’ll suffice.

The Supreme Court of India also rejected the doctrine of sweat of the brow in the case of Eastern Book Company v. D.B. Modak   It was held that the doctrine has numerous flaws, out of which one flaw is that it extends the copyright to the compiler even if there is no original contribution to the compilation. Further held that even a compilation can be protected under the copyright act if there is some creativity in the work. The court made a distinction between the doctrine of the sweat of the brow and the modicum of creativity. It stated that copyright cannot be sought only based on the labor done, there must be some modicum of creativity in the work.

In the case of Key Publications, Inc. v. Chinatown Today Publishing Enterprises, Inc.,  held that all the works that have been done by the works are done by using the materials that are available for all in the public domain. It further held that there are three requirements to be completed by the compilation to be qualified for copyright protection: (1) The collection and assembly of the already available data; (2)  The data is chosen, coordinated, or arranged; (3) the final outcome of the work that comes out of the chosen, coordinated or arranged work must be original. The work need not to be novel.

Conclusion

The Copyright Act of 1957 protects the original work done by the author. Copyright Act also protects the compilation of works that are not novel or non-obvious but there must be some amount of creativity. The courts of India in their various judgments observed that the works done by the person need not to be original or inventive but the final outcome must be original and not similar to the pre-existing work. In case of scripts, if it is proved that the work is similar to the registered work of the plaintiff then the work will be protected under copyright act but it is must that the work is expressed either in the form of writing or printing.  

References:

(1916) 2 Ch 601

 (2008) 1 SCC 1

 2002 (25) PCT 1.

 2000 PTC 382

AIR 1989 Ker 49.

AIR 1978 SC 1613

499 US 340 (1991)

(2008) 1 SCC 1

 945 F 2d 509 (2d Cir) 1991