Copyright

Supreme Court on Copyrightability of Judgments: Guest Post


Pursuant to our earlier post on a Supreme Court case (EBC vs DB Modak) dealing with the copyrightability of court decisions/judgments, we bring to you a guest post by Yashaswani Kumar. A 4th year student at NALSAR, she has written an incisive analysis of the Supreme Court ruling.

A Modicum of Flavour

“The decision in the case of Eastern Book Company v. D.B. Modak sees the Supreme Court taking tentative steps in altering the jurisprudence surrounding the concept of originality in Indian Copyright law. Leaning towards the “modicum of creativity” arguments followed in America the interpretation offered by the Court in this judgment is especially fascinating as it shows an inclination on the part of our Judiciary to move away from the close association that Indian copyright law shares with its English counterpart.

The basic fact situation is that SCC and SCC – Online were aggrieved by individuals who launched a software package entitled “The Laws” and “Jurix”. Allegedly they infringed the copyright of the copy-edited judgments published by SCC (I figure the reason this was of such great concern was because the cost of the newer software was about a third of that of SCC). The said suits were founded, inter alia, on infringement of copyright and unfair competition.

The issues are –
• whether the copy-edited judgments reported by SCC were entitled to copyright protection as derivative works;
• what standard of originality is required by derivative works to evoke that protection;
• and whether the protection would be afforded to the entire text or only certain inputs.

The Court held as follows-

A distinction was made between substantive corrections which required the application of mind and more technical rectifications. It was held that technical or clerical alterations in the text like inserting correct punctuation, providing alternate citations, and the correction of minor errors although an aid to increased readability are too trivial to be granted copyright protection.

However, inputs put in the original text by the editors with regard to segregating the existing paragraphs by breaking them into separate paragraphs; adding internal paragraph numbering; and indicating the Judges who have dissented or concurred; must be treated differently.

“The task of paragraph numbering and internal referencing requires skill and judgment in great measure. The editor who inserts para numbering must know how legal argumentation and legal discourse is conducted and how a judgment of a court of law must read.”

Furthermore the Court went on to say “The High Court has already granted interim relief to the plaintiff-appellants [SCC] by directing that though the respondent-defendants shall be entitled to sell their CD-ROMS with the text of the judgments of the Supreme Court along with their own head notes, editorial notes, if any, they should not in any way copy the head notes of the plaintiff-appellants; and that the defendant-respondents shall also not copy the footnotes and editorial notes appearing in the journal of the plaintiff-appellants.

It is further directed by us that the defendant-respondents shall not use the paragraphs made by the appellants in their copy-edited version for internal references and their editor’s judgment regarding the opinions expressed by the Judges by using phrases like `concurring’, `partly dissenting’, etc. on the basis of reported judgments in SCC.”

With relation to the issue of whether copy – edited judgments were entitled to copyright protection it was decided that the judgments of a Court are in the public domain and therefore no copyright can be claimed on the same.

“To secure a copyright for the judgments delivered by the court, it is necessary that the labour, skill and capital invested should be sufficient to communicate or impart to the judgment printed in SCC some quality or character which the original judgment does not possess and which differentiates the original judgment from the printed one.”

The last and most interesting aspect of the judgment lies in the introduction of the notion of “flavour of minimum requirement of creativity” being required with regard to derivative works. In my opinion with this phrase there is an attempt to reconcile the sweat of the brow doctrine with the notion of modicum of creativity, and therefore the standard of creativity required seems to be placed rather vaguely on a middle ground between the two doctrines.

“To support copyright, there must be some substantive variation and not merely a trivial variation, not the variation of the type where limited ways/unique of expression available and an author selects one of them which can be said to be a garden variety. Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity.”

“The derivative work produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author.”

However, from the paragraphs quoted above I sense a lack of certainty with regard to the degree of originality required – the ambiguous nature of the terms “flavour” and “substantive variation” seem to leave the Courts with an exit option in terms of allowing interpretation which could tend towards either of the doctrines of originality.

Amongst the things which set this judgment apart is the Supreme Court’s deliberate inclusion of creativity into Copyright jurisprudence which has so far devotedly followed the English “sweat of the brow” approach. The High Court wasn’t as bold instead basing its decision on the nature of judgments as documents in the public domain, as well as tools for public utility and the triviality of the corrections made. However it must be seen to what extent the Court is willing to take its “flavour” concept. Considering “modicum of creativity” finds its basis in the American Constitution where will we locate the import of this principle in our own laws?

Secondly, although limited to judgments, this decision with its predecessor CCH Canadian v. Law Society of Upper Canada marks a trend amongst commonwealth countries to move towards embracing the principles underlying the Fiest decision, in the process overturning nearly a century of precedent starting with Walter v. Lane. Whether this inclination leads to the adoption of more American principles into IP laws in commonwealth nations will have to be seen.

In my opinion this progression is not so much a shift between two doctrines as a logical advance in the evolution of the apperception of originality. Examining Walter v. Lane in context of the year of the decision, we see that in 1900 technology was at a stage where the ability to copy a speech verbatim was considered a job that deserved copyright protection – an idea which is laughable today. Thus logically as technology makes collecting and editing raw data easier the degree of protection afforded to it, should be reduced so as not to create unfair monopolies on knowledge which defeat the purpose of copyright law.

Especially as I believe the insistence placed on the principle that where there is common source the person relying on it must prove that he actually went to the common source from where he borrowed the material, employing his own skill, labour and brain did not copy imposes unnecessary hardship and enforces needless control on the flow of knowledge and information dissemination.

Thirdly, what impact will this trend have on Section 2 (o) of the Copyright Act which says that compilations (also derivative works) are to be considered as literary works?

In addition keeping in mind the fact that copyright law is closely connected with commercial implications the induction of a “flavour of minimum requirement of creativity” poses as a massive economic concern for those dependent on data compilations. Thus before denying all derivative works which lack requisite flavor copyright protection perhaps the sui generis rights granted to databases in the E.U. can be considered for the Indian scenario as well.

Finally I have to say that the decision is brimming with potential to finally close the originality debate in copyright jurisprudence with a majority of countries opting for a requisite measure of creativity. The impact on database owners and creators of derivative works is something to watch out for though. Moreover it is to be seen whether the Courts expand the scope of this “flavour” requirement – the current judgment has stated it so hesitantly as to make it nearly impossible to apply without some kind of clarification. “

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.

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