No IPR protection for modern yoga techniques

Early this month, the Delhi High Court in the case of Institute for Inner Studies v. Charlotte Anderson discussed the important issues of whether yoga asanas or Pranic Healing are entitled to copyright or trademark protection.

 The plaintiffs argued that the defendants’ use of the yoga techniques, practices and other teachings invented by the Master Choa Kok Sui (the Master)  without the prior authorization of the plaintiffs was not permissible as firstly, it amounted to an infringement of the copyright in literary works under the Copyright Act, 1957, secondly, the yoga postures and Asanas which state the manner of performing the Pranic Healing is a choreography work that deserves protection as a dramatic expression and thirdly, the term ‘Pranic Healing’ is a trademark that has achieved distinctiveness owing to longstanding use and the same has been associated only with the Master and therefore ought to be protected.

Protection of the Pranic Healing Asanas as an original literary work

The first issue deals with the dichotomy of expression and ideas with respect to copyright protection. S. 13, Copyright Act, 1957 provides that original literary works are entitled to copyright protection.  However, the definition of literary work under S. 2(o), Copyright Act merely provides that it includes tables and compilations. Therefore, there was no indication given in the Copyright Act as to what constitutes an original literary work. The question of what constitutes original work was discussed in 1916 by J. Peterson in University of London Press Limited v. University Tutorial Press Limited [1916] 2 Ch 601 , wherein he stated that original does not imply that there must be an expression of original or innovative thought. The import of the term “original” was simply that the manner of expression of the idea must originate from the author and not that the idea expressed must be original. This dictum was accepted in India by the Privy Council in 1924 in Macmillan v. Cooper AIR 1924 Privy Council 175, wherein the Court additionally stated that the amount of knowledge, labour, skill or judgment required to constitute originality is a question of fact and degree. In 2008, the Supreme Court after revisiting the case law on the originality issue, it held in Eastern Book Company v. D. B. Modak 2008(1) SCC 1, held that while the creativity standard for establishing copyright is not that it must be novel and non-obvious, a minimal degree of creativity is required. Moreover, the Supreme Court in R.G. Anand 1979 SCR (1) 218  recognized that similarities are bound to occur when two works derive their ideas from a common source. But to be actionable under copyright law, the alleged copy must be a substantial and material one.

This idea of originality has an immediate nexus with the problem of distinguishing between an expression and an idea. This is because copyright protection is available only for the original expression of the idea and not for the idea itself. But as stated by Lord Hoffman in Designer Guilds [2001] F.S.R. 11, there may be expressions that do not deserve protection because it is unconnected with the literary, dramatic, musical or artistic nature of the work. Therefore, there is an attempt to distinguish between such works which, in the opinion of the courts, do not merit protection from those works where there is “expression of ideas where originality resides in the copyright sense”, which are usually protected by the Courts. The US Supreme Court has a rich scholarship when dealing with the idea-expression problem. As early as 1880, the USSC in Baker v. Seldon 101 U.S. 99, proposed an alternative with respect to books and literary works describing and defining arts, medicines, scientific practices.  With respect to such works, the USSC held that the “the scope of protection in relation to copyright lies in the manner of language employed in the book in order to describe the said art and selection and arrangement of the incidents and overall compilation of the work and not in the art or the performance of art itself howsoever new or unique it may be.”(as explained by the Delhi High Court) Similar questions were discussed in 1991 in Feist Publications v. Rural Telephone Services Company 499 U.S. 340 (1991) wherein the USSC ruled that with respect to fact-based works or works deriving from pre-existing data, scientific principles or arts, copyright protection would be available only to the manner of describing these arts and principles and not to the facts contained within them. This same principle has been upheld in 2007 in the UK as well in Baigent & Leigh v. The Random House Group (2007) FSR 24.

Applying the ruling in Baker, Feist and Baigent, the Delhi High Court noted that copyright vests with originality and not novelty. It stated that “the said originality in the copyright sense as indicate would imply the hard work, skill, judgment extended by the author towards creativity which emanate from author and not in innovative sense.” Therefore, the Court stated that the plaintiff could ask for copyright protection only if there is substantial copying of the language employed by the master in his works, the manner of explanation of the Asanas, the pictorial content as well as the arrangement and selection of settings and its content. Even if the Pranic Healing was a novel innovation of the Master, Copyright protection does not extend to protect such an innovation. The method to protect such a novel innovation (if it is so) is through patent law and not copyright law.

The Court also referred to the US District Court case of Bikram’s Yoga College v Evolution Yoga 105 U.S.P.Q.2D (BNA) 1162, where the issue was according copyright protection to yoga exercises. There the Court held such: “There is a distinction between a creative work that compiles a series of exercises and the compilation of exercises itself. The former is copyrightable, the latter is not.” The Delhi High Court accepted this line of case law and ruled that the plaintiff could not state that copyright protection for the performance of Pranic Healing techniques can be accorded on the basis of the copyright claim in the book describing, illustrating and compiling the exercises or Asanas of Pranic Healing. The protection will be restricting to the compilation that has been done by the Master, the language and the manner of explanations employed by him in his book and the pictorial content in the book and not for the performance of the techniques themselves.

Protection of the Pranic Healing Asanas as a dramatic work

Section 2(h) of the Copyright Act, 1957 defines a dramatic work in an inclusive fashion. A mere reading of Section 2(h) implies that Yoga Asanas could be protected as choreographic work.  The Delhi High Court referred to Copinger & Skone James on Copyright (a leading authority on the subject) to state that two conditions are to be satisfied for a work to constitute a dramatic work.  First, a dramatic work needs to be one that is capable of being physically performed. Second, there must be certainty of performance in the manner conceived by the author or writer. The specific question of yoga asanas was discussed in the US in Bikram’s Yoga College where the Court held that yoga asanas do not satisfy the requirements of a dramatic work and that it cannot be considered choreography because of the simplicity of its sequences. This was because, in the opinion of the Court, “A mere compilation of physical movements does not rise to the level of choreographic authorship unless it contains sufficient attributes of a work of choreography. And although a choreographic work, such as a ballet or abstract modern dance, may incorporate simple routines, social dances, or even exercise routines as elements of the overall work, the mere selection and arrangement of physical movements does not in itself support a claim of choreographic authorship.” Applying the following requirements to the instant case, the Court held that Pranic Healing cannot be accorded copyright protection as a dramatic work.

Protection of the term ‘Pranic Healing’ as a trademark

The plaintiffs claimed that they were the registered proprietor of the trademark comprising the  term ‘Pranic Healing’ and that the term has acquired secondary significance vis-à-vis the plaintiffs due to long standing use by them. The defendants on the other hand claimed that the term ‘Pranic Healing’ is publici juris and therefore, no monopoly could be claimed on it. Moreover, they argued that the plaintiffs could not acquire any secondary significance on the expression ‘Pranic Healing’ owing to its generic nature. While S. 18, Trademarks Act does provide for the right of registration of a trademark, it is necessary that the person claiming to be the proprietor of the trademark must have made a truthful claim, ie, the trademark must either be inherently distinctive or the mark must be capable of distinguishing the goods and services of the one person from that of another. Considering that the first usage of the term ‘Pranic Healing’ goes as far back as 1906, the Delhi High Court noted that the registration of the expression ‘Pranic Healing’ by the plaintiffs was itself in doubt as it was neither distinctive nor capable of distinguishing the goods and services of one person from that of another. In this context the Court recognized that the registration of a trademark is only prima facie evidence of its validity and the presumption of prima facie validity of registration is a rebuttable presumption (as recognized by the Delhi High Court itself in Marico Ltd. v. Agro Tech Foods Limited (2010 (44) PTC 736 (Del)). In this case as the expression ‘Pranic Healing’ was neither distinctive nor capable of distinguishing the goods and services of one person from that of another, the Court ruled that it ought not to have been registered under S. 9, Trademarks Act. Moreover, the Court noted that the plaintiffs had secured the registration by making a false claim to the proprietorship of the trademark which prima facie vitiates the registration. Therefore, the Court rendered the registration of the trademark of the expression ‘Pranic Healing’ inconsequential and ruled that it was too generic an expression to be protected. Hence, the Court ruled against the plaintiffs in the trademark claim as well.

Thus, through this judgment that is rich in scholarship, J. Manmohan Singh has stated that there can be no exclusive rights over pranic healing or other modern yoga techniques which are a derivative of the ancient art of yoga in India. This is a judgment that is welcome for the careful and detailed legal analysis given to controversial issues such as the expression-idea distinction and the extent of a dramatic work among others.