Confidentiality and Copyright: The Bombay High Court clarifies the interface

Beyond Dreams Entertainment and Ors. v. Zee Entertainment Enterprises and Anr.

In the entertainment industry, with sometimes long drawn out production processes involving multiple players, scripts and production notes are often exchanged, with the promise of confidence. Differences that then arise between these players leads to litigation for these scripts and production notes, and two particular causes of action are commonly employed in these claims – breach of confidence and infringement of copyright. This post attempts to demonstrate through an analysis of a recent judgement of the High Court of Bombay that these are two separate and distinct causes of action and although the remedies appear to be the same, they are grounded on different considerations.

The Bombay High Court was faced with a combined claim of copyright infringement and misuse of confidential information brought by the Plaintiffs – Beyond Dreams Entertainment (“BDE”), with regards to certain scripts and concept notes of a particular Hindi television show, they had handed over the Defendants – Zee Entertainment. Initially, Zee was supposed to telecast the series, with production responsibilities retained by the Plaintiffs. It was with this understanding that the latter had shared the concept notes. However, negotiations failed and Zee was no longer to telecast the show, but instead (as alleged by BDE) went on to create a new show based on the concept notes shared. BDE sued to restrain the telecast of this show developed by Zee.

The claim was that Zee had breached BDE’s confidence by using their scripts and production notes in the development of their show and had infringed their copyright in these as well. In its analysis, the court considered the elements of a breach of confidence claim to be the identification of confidential information, the handing over of this information under circumstances of confidence, and the use or threat of use of this information. While elements 2 and 3 are largely questions of fact, element 1 required also an analysis of the novelty of the information. The court ruled for BDE finding prima facie that there was a breach in confidence and that there might be a case to be made out in the merits stage that there is an infringement in copyright as well.

The judgement is largely a discussion on the law relating to confidentiality in India, but has some valuable portions on how the law relating to confidentiality and copyright interact with each other. The court notes that these two systems operate in different spheres, the former being a broader right than the latter proprietary right. That being the case however, the court also observes that it is a well settled proposition that the publication of a work (work in the copyright sense of the word) could be restrained for breach of confidence. So in a sense, the court is laying down that remedies may be granted to restrain the final publication of a work on grounds that are purely rooted in confidence, including, as noted by the court, when the impugned work is a copy of the idea on which the original work is based.

The requirements of the law of confidentiality absolutely require that such a position be followed as the nature of the cause of action is drastically different in a copyright claim than in a claim grounded in confidentiality. Such a position is reflected also in the text of S.16 of the Copyright Act which states that,

“No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or any other law for the time being in force, but nothing in this section shall be constructed as abrogating any right or jurisdiction to restrain a breach of trust or confidence.”

Had this section been worded to omit the emphasised portion, there might have been a slight conflict as the court would be allowing a copyright like remedy (restriction of the publication of a work) on grounds that are outside the scheme of the Copyright Act, in effect allowing a copyright to exist where there should have been none.

The judgement also clarifies the process adopted to determine novelty in the case of a claim of breach of confidence. This process is far more abstract and removed from specifics as opposed to a claim of substantial similarity in its first tier of analysis, but then reverts to the substantial similarity test (in substance) subsequently.

This judgement in my opinion amply clarifies the interface between copyright and breach of confidence claims however a little better clarity could have been lent to the analysis of novelty as an element of confidence.