Copyright

Are Indian Court Judgments Copyrightable?


In a very interesting copyright case, the Supreme Court of India recently ruled that there can be no copyright in the raw text of court judgments/decisions. Well, we don’t exactly need a court to tell us this, as section 52 (1) (q) of the Copyright Act makes this crystal clear.

The real issue before the court was: how much of work ought one to do to on such “raw” judgments to make them copyrightable? Will mere copy-editing (the mere correction of clerical errors or syntax) in the judgment suffice?

The facts of Eastern Book Company & Ors vs D.B. Modak & Anr (Civil Appeal No. 6472 of 2004) are as below:

Eastern Book Company (EBC) is a leading publishers of law reports/journals in India. One such publication is a law report titled “Supreme Court Cases” (“SCC”), containing all Supreme Court judgments. Raw judgments are copy-edited by a team of assistant staff and various inputs are put in the judgments and orders to make them user friendly. These include an addition of cross-references, standardization or formatting of the text, paragraph numbering, verification and by putting other inputs.

The appellants also prepare the headnotes comprising of two portions, the short note consisting of catch/lead words written in bold; and the long note, which is comprised of a brief discussion of the facts and the relevant extracts from the judgments and orders of the Court. EBC argues that the preparation of the headnotes and putting the various inputs in the raw text of the judgments and orders received from the Supreme Court Registry require considerable amount of skill, labour and expertise and a lot of effort and expenditure.

Therefore, “SCC” constitutes an `original literary work’ of the appellants in which copyright subsists under Section 13 of the Copyright Act, 1957 and EBC alone has the exclusive right to make printed as well as electronic copies of the same under Section 14 of the Act.

EBC alleges that two defendants (Spectrum Business Support Ltd and Regent Data Tech Pvt Ltd) market software packages that infringe EBC’s copyright in SCC. Sprectrum markets “Grand Jurix” (published on CD-ROMs) and Regent Data Tech Pvt. Ltd markets “The Laws” (again on CD-ROMs). As per EBC, all the modules in the defendants’ software packages have been lifted verbatim from the SCC.

In particular, EBC alleged that the defendants’ have copied EBC’s sequencing, selection and arrangement of the cases coupled with the entire text of copy-edited judgments as published in SCC, along with and including the style and formatting, the copy-editing paragraph numbers, footnote numbers, cross-references, etc.

Interestingly, the court adopted the “minimal degree of creativity” as the threshold for copyright protection. Deploying such a standard, the court held that mere copy editing would not suffice, as this involved mere labour and nothing else. However, since there is some creativity involved in the making of headnotes, such headnotes would qualify for copyright protection. (Incidentally, Mr Surendra Malik, the owner of EBC writes the headnotes himself! I had the great pleasure of studying with his son, Sumeet Malik in law school. Sumeet joined his dad at the EBC, after a stint at the Franklin Pearce Law Center [FPLC], a school reputed for its IP program. Sumeet was the one who alerted me to this and asked me as to what SpicyIP thought of this judgment).

Unsurprisingly, the judgment of the court rambles on for 100 odd pages, with the court religiously reproducing arguments of counsel and the various case law that they cite. The real crux of the decision is only about 4 pages!! This seems to have become a way of life for our judiciary, with none of them paying any heed to the great bard who pleaded that “brevity was the soul of wit”.

We have a guest post on this judgment from Yashaswani, an outstanding student of NALSAR, that I will post soon. For the moment, I just wanted to point out one inconsistency in the court’s judgment. The Court appears to endorse a standard enunciated in a recent Canadian Supreme Court case (CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 (1) SCR 339 (Canada). This case strikes a “middle path” between the two extreme doctrines enunciated by courts (in the US and elsewhere) to explain as to when a work can be considered “original” enough to merit copyright protection.

At one extreme lies the “sweat of the brow” approach to originality, which the Canadian court held as too low a standard. Such a standard (which entitles anyone expending “labour” and “capital” to claim copyright protection) shifts the balance of copyright protection too far in favour of the owner, and fails to allow copyright to protect the public’s interest in maximizing the production and dissemination of intellectual works. At the other extreme, we have the “creativity” standard, which implies that something must be novel or non-obvious – concepts more properly associated with patent law than copyright law.

The court therefore adopted a “middle path” approach by enunciating an “excercise of skill and judgment” standard. In essence, the court held that to claim copyright in a compilation, the author must produce a material with “exercise of his skill and judgment” which may not be creativity in the sense that it is not novel or non-obvious, but at the same time it is not the product of merely labour and capital. (Readers will know that SpicyIP is a huge fan of such “middle path” standards and we’ve tried to incorporate this Buddhist wisdom in some of the issues relating to pharma patents).

The Indian Supreme Court endorses the above standard of the Canadian Supreme Court (that the appropriate standard is neither one of “sweat of the brow” nor of “creativity”) and holds that:

“Creative works by definition are original and are protected by copyright, but creativity is not required in order to render a work original. The original work should be the product of an exercise of skill and judgment and it is a workable yet fair standard”

Yet, a few paragraphs later, the Indian Supreme Court notes:

““novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity.”!!

Under such a standard, the court held that mere copy-editing (clerical corrections, syntax etc) wouldn’t qualify as they did not involve “creativity”, but skill expended in writing head-notes, footnotes and editorial notes would qualify. The Supreme Court therefore “restrained the respondents from copying head notes, footnotes and editorial notes appearing in their law journals.”

An earlier SpicyIP tidbit by Prashant Reddy covered this case in short. I had also referred to this case in passing in one of my previous posts.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

6 comments.

  1. AvatarSushant

    Shamnad,

    I just wanted to know what possible copyright restrictions are on S.C.R judgments that you can find on judis. I emailed them long back but never got a reply and I thought may be I should not worry about them.

    Reply
  2. AvatarShamnad Basheer

    hey sushant,

    under the ebc ruling, there will be copyright in the headnotes. but no copyright in the edited text of the judgment. i suggest you remind them of your query__as you dont want to run into problems later.

    Reply
  3. AvatarSushant

    Hey Shamnad,

    I thought SCR is run by supreme court using government money and is without copyright restrictions. Let me know if it applies to SCR as well and I will remove the headnotes.

    Reply
  4. AvatarAkhileshwar

    Lucid reporting of Supreme Court of India & High Court judgments is a fundamental rubric of the rule of law in India. Copyrighting these judgments will create a private monopoly over a public resource the access to which is the right of every citizen. The Hon’ble Supreme Court has missed an opportunity in this regard.

    Reply

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