(In Part I of this note, I made the following points:
- The “prima facie” standard in injunction law requires the plaintiff to show that he has some possibility of success and that his claim is not vexatious. The probability of success and the relative strengths of the parties’ arguments are not relevant factors.
- The “originality” standard in copyright law requires that in order to be original, a work must involve some intellectual skill and judgment according to the standard in CCH.
- From these two points, it follows that in matters of temporary injunctions in copyright cases, the plaintiff would have met the “prima facie” standard if his claim is not vexatious and if he shows that he has some possibility of success in demonstrating in trial that his work involves intellectual skill and judgment. Once the plaintiff shows this, he has prima facie established “originality”. The Court’s decision should then be guided by “irreparable injury” and “balance of convenience”.
The following is Part II of the note)
I now turn to the application of the principles discussed above to the
C. The application in Oxford
The essential question which must be considered is simple. There was no allegation that
- Regarding the questions themselves, “Besides asserting the work put in by Dr. Roy, and the effort in arranging such questions at appropriate stages, chapters or units in the textbooks, the plaintiffs do not show how such effort is original to conform to the minimum degree of creativity mandated by Indian law.” However, the plaintiff was not required to show this at all. All the plaintiff was required to show was that it is possible that the required degree of creativity was conformed to. Whether the required degree was actually conformed to was a matter for trial, and not for the determination on temporary injunction.
- Again, in relation to the questions themselves, “Recognition of copyright as inhering in the questions themselves (as the plaintiff suggest the court to do), without existence of the “creative” element of originality would deny access to ideas, thus robbing one of the primary objectives of copyright law (promotion of creativity) of vitality, thereby stifling intellectual growth.” Now if the plaintiff actually suggested that the Court recognize copyright without arguing that it was possible for the originality standard to be met, this holding would be correct. Because, it is impossible (as a matter of law) to show that an idea would be protected by copyright law.
- Another reason for denying copyright in the questions was, “Interestingly, Section 3 (k) of the Patents Act, 1970 explicitly denies any form of patent protection to a mathematical method or algorithms. Prima facie, Parliament could not have intended that innovations such as new mathematical questions, denied benefit of patent protection-which if granted is of restricted duration-could be refused, but a wider protection in time, by way of copyright, could have been granted.” For a moment, let us assume that all questions were on the form of 2 + 2 = 4. This type of question can obviously be expressed in only one form. It is denied protection because of the doctrine of merger (reason 2 discussed in the preceding paragraph). Just because something is excluded from the protection of patent law, it does not necessarily follow that the thing must be excluded from copyright protection as well. It is worth noting that in CCH, the Court expressly rejected the Feist standard of “creativity” because the creativity standard implies that the work must be novel or non-obvious, which are standards relevant to patents and not to copyrights. Justice Bhat’s reliance on the Patent Act is therefore unfortunate.
- On the issue of copyright in the schematic arrangement of the textbook, the Court stated “The plaintiffs had to show original effort, unique to their schematic arrangement or sequencing. In education, the dictates of the “learning content” are such that each level demands a “curve”. These “learning content” and “learning curve” elements are inherent in the syllabi evolved by examination bodies such as J & K Board or the CBSE. The plaintiff therefore, had to show how it evolved an arrangement so unique that the scheme is entitled to copyright protection, independent of the dictates of the Board. The involvement of the Board, in the creation of the syllabus, negates such originality. This is not to suggest that there can be no creativity in such schematic arrangement; the court merely infers that prima facie there is no material in support of it; the plaintiff has made no attempt to show this creativity, apart from placing the textbooks on the record.” This is a clear example of a wrong understanding of “prima facie”. Let us assume that the plaintiff made no attempt to show their creativity apart from placing the textbooks on record. They were not required to make any such attempt. In any case, the plaintiff had made specific averments in relation to their intellectual skill, effort and judgment in preparing the textbooks. The Court itself notes “this is not to suggest that there can be no creativity in such arrangement…” This means that it was possible to show such creativity. The prima facie case is established at this point itself. Further attempts to show how creative the plaintiff actually was were irrelevant.
- The fair dealing / fair use issue: A commentator on a previous post pointed out that this appears to be obiter dicta, and was unnecessary for resolution of the case. This is in my opinion the correct view to take, given that there is a holding that there was no copyright at all. I will add one point here, that I am unsure whether the question of fair dealing should be gone into in temporary injunction matters while dealing with a “prima facie” case. Fair dealing is a matter which should be established at trial. One way it might be relevant at the temporary injunction stage is to argue it in establishing that the balance of convenience is not in favour of the plaintiff.
In short, the Court was justified in refusing to grant a temporary injunction against the alleged infringement of copyright in the questions themselves (assuming that the questions were straightforward mathematics questions incapable of being expressed in any form but one) on the grounds of the doctrine of merger. The other reasons are not good enough to deny the existence of a prima facie case, as the plaintiff did not have to show the possibility of success in the trial. With respect to copyright in the arrangement/scheme of the textbook; again, the Court has proceeded on the basis that the plaintiff did not show that the work met the required standard of originality. This misses the point that the plaintiff was not required to show this; it was enough to show the possibility of the work meeting the required standard. Perhaps, the final decision can still be justified by saying that although the plaintiff established its case (at least with respect to the schematic arrangement) prima facie, it was still not entitled to a temporary injunction given that both parties would have suffered irreparable injury and that the balance of convenience was not in favour of the plaintiff (because of fair use). However, that approach called for an entirely different type of analysis, looking extensively at the balance of convenience between the parties. The holding that no prima facie case was made out is in my opinion very debatable.
In light of the final result in the
- The standard for originality is the “intellectual skill and effort” standard of CCH.
- In deciding whether to grant a temporary injunction or not, the question to be asked is not, “Has the plaintiff established that the CCH standard is satisfied?” Instead, the right approach would be to ask, “Is it possible that the plaintiff will be able to establish the CCH standard?” If this question is answered affirmatively, the Court must look at issues of irreparable injury and balance of convenience, and should not assess the relative strengths of the parties’ claims (except perhaps as a tipping factor in cases where the balance of convenience cannot be clearly identified).
- The question “Has the plaintiff established that the CCH standard is satisfied?” is the proper question at the stage of the final order at the end of the trial.