All of us have heard the tagline of Idea (Telecom Operator) that says “What an Idea Sirji” however, have you ever thought if the idea can be Protected? For example, if you are a scriptwriter without any experience in the TV Industry, you got an idea for the plot of a reality TV show and you are confident that if communicated it would be a big hit thus you communicate your plot to a Producer for adaptation of the work. A few weeks passed, and no response was received from the Producer so, you decided to drop your idea. After a few months, you came across a new program on channel XY which is very similar to the idea of the plot you discussed with the producer. Now you want to protect your idea, and thinking Can I still protect my idea under the various Intellectual Property Laws, or can I get my idea registered under various Intellectual Property laws?
Overview of Copyright
Copyright is an exclusive legal right given to the creator or a group of individuals to protect their work or creativity from reproduction, adaption, translation, distribution, and public performance by others without prior permission from the creator/person responsible for the existence of the work. The objective of copyright law is twofold: First to protect the original expression of writers, designers, artists, producers, songwriters, and other creatives who have invested their money in them to present their works to the public and second, to encourage others to build freely upon the ideas and information conveyed by a work. Copyright is administered by the Copyright Act, 1957, and the Copyright Rules, 2013. The Copyright Rules were altered in 2013 and restored the original Copyright Rules, 1958.
Analysis of the relevant statutory provisions
- According to Section 13(1) of the Copyright Act of 1957, the following works are permissible to get protection:
- Original literary, dramatic, musical, and artistic works;
- Cinematograph films; and
- Sound recording.
Apart from the works aforesaid, there are other works as well in which protection can be given under copyright such as
- Live Shows or,
- Performer’s rights and broadcasting rights as mentioned in Sections 37 to 39A of the Copyright Act.
- Section 14 read with section 13 wherein Section 14 states the various exclusive rights provided to the owner of the copyright and section 13 tells that copyright shall exist only in tangible form.
- Section 16of the Act clearly states that there is no copyright in any work except as mentioned under the Act.
The work presented must be expressible, physical, and tangible forms such as paintings, documents, sound recordings, papers, etc.
Copyright Protection is not permissible under the following works
- Works presented are not fixed in tangible form;
- Works such as slogans, symbols, designs or titles, names, and factual information– however, these works may be protected under Trademark laws;
- Processes, Ideas/concepts, procedures, principles, discoveries, and guidelines – these works may be protected under patent or trade secret law;
- Works which are already available to the public and the original creator is not identifiable are not covered under copyright law;
- Works that are already expired under Copyright laws.
Difference between Idea and Expression of Idea
There is a principle to distinguish between idea and expression. This Principle is known as the Idea-Expression dichotomy which was framed by courts. The main prospect of copyright laws is that it only protects the expression of an idea. Therefore, Copyright is sought only for the novelty of the way a particular idea is expressed. “Hence, it is to be understood that the Act does not protect an idea per se, but the expression of such an idea in any tangible form is recognised for protection under the Act. The expression of an idea in a tangible form is the underlying principle of the Act and is the basic pillar relied upon by Courts in dealing with copyright matters.”
The above-mentioned principle can be well understood through a landmark case of R.G. Anand v. M/S Delux Films and Ors. (1979) Wherein R.G. Anand (appellant-plaintiff) an Indian Playwright who had written and produced the play ‘Hum Hindustani’ which was highly successful thus Mr. Mohan Sehgal (second defendant) asked the appellant to provide him a copy of the play to prepare a movie. In 1956, a movie named ‘New Delhi’ was released which was completely based on his play as per appellant. However, the appellant was not given any credit for the movie. The matter went to Supreme Court and while handling the issue of protection of copyright held that – “There can be no copyright in an idea, subject matter, themes, narratives, or historical or legendary facts, and copyright infringement in such circumstances is limited to the creator of the copyright work’s form, method, arrangement, and presentation of the concept.” The above case also stated lay observer’s test which up to some point can help to differentiate between idea and Expression of an idea says that if “seeing the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.” Then it can be said that there is a copyright infringement.
Similarly, in the case of Anil Gupta V. Kunal Dasgupta AIR (2002) Delhi 379– also known as the Swayamvar Case, the Delhi High Court said that “an idea per se has no copyright. But if the idea is developed into a concept fledged with adequate details, then the same is capable of registration under the Act, and the Laws must ensure that persons who create an idea/concept or theme which is original are rewarded for their labour.”
In Beyond Dreams Entertainment Pvt. Ltd.(plaintiff) vs. Zee Entertainment Enterprises Ltd.(defendant) 2015(4) ALLMR 518 wherein a reality TV show concept note was developed by the plaintiff and was reduced to concept notes. Afterward, the plaintiff met the defendant to produce the same, and later a new serial was announced by the defendant which as per the plaintiff was entirely based on his concept note. The Bombay High Court while dealing with the said matter, held that the “elements of expression in the Plaintiffs’ concept notes which are protectable under copyright law are copied into the Defendants’ work, and it is not the basic plot or idea of the story, but actual concrete elements that make up the total sequence of events and relationships between major characters that are plagiarized”. Thus, the concept note was recognized by the Court as a work in which copyright exists and hence can be protected under the Act. The Delhi High Court in its recent judgment in Sanjay Kumar Gupta Vs. Sony Pictures Networks India P. Ltd (2018) reiterated the principle that “a concept obviously cannot be a subject matter of copyright because a concept has to be brought into the form of a literary work or dramatic work or musical work or artistic work or cinematographic work or sound recording or a performance/performer’s right or live show and only where after there will exist a copyright in the work”. Thus, the case turns in favor of the defendant as there was a lack of originality in the concept, and the work already existed in the Public domain.
Thus, from the concept of idea-expression dichotomy, it can be clearly said that Copyright protection is not provided for ideas, facts, and concepts. However, under copyright laws protection is provided for the expression of ideas, facts, and concepts. Ideas can be similar to other people, but protection is provided for the demonstration of the idea and the way it is communicated. Although there are very rare chances where the idea and expression of an idea are so intertwined and if exist then protection is given to the expression of an idea. It is to be understood that act protects the expression of an idea in tangible form only. Therefore, the work must be original literary work or artistic work, sound recording, or live shows.
Author(s) Name: Manisha Khalkho (University-Campus Law Center ,University of Delhi)