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Introduction
In a recent judgment[1], the Bombay High Court ordered that the web series Singardaan is prima facie infringing the copyright of the author (plaintiff) of a short story by the same name. However, the court in the case refrained from ordering temporary injunction against the exhibition rather it restrained the makers (defendants) from making any further adaptation of it and ordered them to maintain an account of revenues generated from the web series. The peculiar point of this judgment that garnered attention of fraternity is its possible alleviation to protection of themes. The irony is the same court in XYZ case[2] stated that “I must agree with this view that there is, generally speaking, no copyright in the central idea or theme of a story or a play.” This article explores the contours of copyright protection and answers the question whether there is a departure from the settled law or is the judgment following the same concept?
Facts of the Case
The outline of the claim is that plaintiff’s story which has also been adapted in a play has been illegally copied by the defendants. The story is such that the protagonist acquires courtesan’s dressing table or Singardaan and places it in his home. It is centered around the theme that a lifeless object like Singardaan can affect human lies by virtue of various human vibrations and vibes absorbed by it over generations of use.[3] The web series is also based on somewhat similar plot with a minimal change in details.
Analysis of the Case
The point to be noted is that the order was passed by the judge after carefully watching the web series and having gone through the story written by plaintiff. As per Article 9 of the TRIPS[4]– “Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.” Similarly, Article 2 of the WCT[5] states the same definition. Both the agreements are in consonance with Berne Convention[6] which provides for protection of literary or artistic works.
To avail protection under copyright law, the plaintiff in every case must first establish that there is a strong prima facie case for the existence of the right and he has a case which is reasonably capable of succeeding.[7] While exercising its discretion, the Court must have given due regard to the twin principles of balance of convenience and irreparable prejudice.[8]
To understand the extent of protection it is imperative to refer to two very important cases which are as follows:
- R.G Anand v/s M/S. Delux Films & Ors.[9]– The Court in this case led down the test to determine whether there is a violation of copyright. It is- “Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrights work. If the defendant’s work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which is at once leads to the conclusion that the defendant is guilty of an act of piracy. One of the surest and the safest test is to determine whether or not there has been violation of copyright is to see if the reader, spectator or the viewer after having red or seen both work is clearly of the opinion that gets an unmistakable impression that the subsequent work appears to be a copy of the original.”[10] The point to be noticed is that the Court emphasized on mode of expression and not themes to be protected under copyright.
- XYZ Films LLC &Ors. v. UTV Motion Pictures[11] – A single judge bench observed that- “I must agree with this view that there is, generally speaking, no copyright in the central idea or theme of a story or a play. It subsists in a combination of situations, events and scenes which, working together, form the realization or expression of that idea or theme. If this combination is totally different and yields a completely different result, the taking of the idea or the theme is not copyright infringement. To my mind this would seem to apply almost exactly to the case at hand.”[12] Thus, the two prominent judgments referred by the present judgment mandate otherwise that is no protection to themes, ideas and plots.
However, the contentious point in the judgment is the reasoning adopted by the Hon’ble judge which is “extraction” technique as elucidated in the US case of Nichols v. Universal Pictures Corporation[13]– “Upon any work, and especially upon a play, a great number of patterns of increasing generality fit equally well, as more and more of the incident is left out. The last may perhaps be more than the most general statement of what the play is about, and at times mightconsist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended.”
Where to stop or draw a line in this “series of abstractions” is, of course, for the individual court to decide and in doing so, it must perforce impose its own value judgment, by applying its knowledge of a subject matter to a specific expression of that subject. Everything above this line is a matter of expression capable of copyright protection and everything below unprotectable.” [14]The above approach renders themes protected by copyright as according to the Bombay High Court it is the expression of the idea. Other details are mere embellishments.
This reasoning is flawed as it will defy the objective of copyright protection. It has the potential of expanding the reach of copyright protection beyond its measures. The judgment is certainly a step towards fostering and protecting creativity in a country where most of the people are not aware of the concept of copyright. But it places its foundation behind flawed reasoning. The method is very subjective. When we already have settled good laws there was no need to insert a novel test.
However, the result produced by the analysis was right as any viewer will say that web series Sigardaanis likely to be a copy of the story. Hence, because of substantial similarity and trivial differences between the series and the story the order is valid. The facts and circumstances also differ from the facts of RG Anand[15] case as there was substantial change in the manner the movie was presented ( 2-3 more themes added weightage to it) and also XYZ[16] case where the movie was not revolving around the same concept, there were dissimilarities in the alleged infringed part thus no copyright violation.
Conclusion
This judgment deserves some acknowledgement as the first time an Indian Court talks about protection of themes though the approach to this was not very satisfactory. It creates confusion regarding the extent of protection. A better alternative could have been the test laid down in Zee Telefilms[17] case where the court stated the difference between idea and concept of idea as- “because some of the components of the story are common or in public domain, the concept or idea doesn’t become incapable of protection.” It also gave two tests to determine copyright infringement- 1) what is the impression created on the average viewer( as adopted in the present judgment) 2) the substance/kernel assessment test- which includes assessing the impact of the infringing portion on the rest of the work, if the work can stand without it, then no violation has occurred but if it is expunged the rest becomes meaningless then copyright infringement has taken place(in the present judgment the work will become meaningless without it, so violation has occurred).
These pronouncements throw light on the fact that there is a long way to go for Indian courts in the arena of copyright law. The authors, musicians, artists, etc., need to be protected to encourage suitable environment for creativity. People should be confident that their work cannot be stolen just be altering some of the details of the idea and rest is a copy. It is the time to safeguard the interests of people to generate more work and promote originality.
[1]Shamoil Ahmad Khan v. Falguni Shah,2020 SCC Bom 665.
[2]XYZ Films LLC v. UTV Motion Pictures, 2016 SCC Bom 3970.
[3]Shamoil Ahmad Khan v. Falguni Shah, 2020 SCC Bom 665.
[4]https://www.wto.org/english/docs_e/legal_e/27-trips.pdf( 6th June 2020, 11:00 AM).
[5]https://wipolex.wipo.int/en/text/295157( 6th June 2020, 12:00 AM).
[6]https://wipolex.wipo.int/en/text/283693 (6th June 2020, 12:30 AM).
[7]Harman Pictures vs. Osborne (1967)1 WLR 723.
[8]Harman Pictures vs. Osborne (1967)1 WLR 723.
[9]1978 AIR 1613.
[10]1978 AIR 1613, p. 67.
[11]2016 SCC Bom 3970
[12]2016 SCC Bom 3970, p. 32.
[13]45 F.2d 119 (2d Cir. 1930).
[14]45 F.2d 119 (2d Cir. 1930).
[15]1978 AIR 1613.
[16]2016 SCC Bom 3970.
[17]Zee Telefilms Ltd. v. Sundial Communications Pvt. Ltd., 2003 (5) Bom CR 404, p. 29.
