Namaste Copyright: Calcutta High Court reopens the idea-expression debate

On August 10, 2009 a single judge bench of the Calcutta High Court gave one of the very few pro plaintiff judgments in a copyright dispute. Namaste London, a hit 2007 Hindi Bollywood movie was allegedly plagiarized by Poran Jaaye Joliya Re, a 2009 Bengali Tollywood movie. Justice Patherya watched both the movies and concluded that expression of the Hindi film was copied as the scenes in the Bengali movie resembled strongly with that of the Hindi movie and if such scenes were removed then there would be no film. Further screening of Poran Jaaye Joliya Rei has been stopped and the prints have been taken into safe custody, however the producers of the Bengali film have managed to secure an interim stay from an appeal bench at the Calcutta High Court which would decide upon the issue on August 11, 2009.

Before the decision of the appeal bench comes let us analyze the law and the judicial decisions in India on copyright over idea-expression divide.

Under section 14(d) of the Copyright Act, 1957 the producer of a cinematograph film has right to copy, sell, hire, offer to sell and communicate the film to the public. Thus u/s 51 of the Copyright Act, when a copyrighted work is copied or reproduced the copyright is violated. One of the surest test to determine whether or not there has been a copyright violation had been given in 1991 by the Karnataka High Court in Associated Industries v Sharp Tools AIR 1991 Kant 406 where the ‘lay observer test’ was laid down, here the lay reader, viewer or the spectator after reading or viewing the works would be clearly of the opinion and get an unmistakable impression that the subsequent work appears to be a copy/reproduction of the first.

However it is important to state that copyright subsists in expression, not in ideas. Idea is not a subject matter of copyright. In Donoghue v Allied Newspaper Ltd, (1937) 3 ChD 503 it was held by Farwell J, that:

“if the idea, however brilliant and however clever it may be, is nothing more than an idea, and is not put into any form of words, or any form of expression such as a picture or a play, then there is no such thing as copyright at all. It is not, until it is reduced into writing, or into some tangible form, that you get any right to copyright at all, and the copyright exists the particular form of language in which, or, in the case of a picture, in the particular form of the picture by which, the information or the idea is conveyed to those who are intended to read it or to look at it.”

Similar conclusions were reached at in Hollinrake v Truswell (1894) Ch 420 and Harnam Pictures NV v Osborne (1967) 1 WLR 723.

In India the first case to lay tests to determine copyright infringement was RG Anand v Delux Films AIR 1978 SC 1613. It laid a seven step guideline:

1. There can be no copyright in an idea, subject-matter, themes, plots, or historical or legendry facts and violation of the copyright in such cases is, confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.

2. 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 the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted 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 substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.

3. One of the surest and safest test to determine whether there has been a violation of copyright is to see if, 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.

4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.

5. Where, however, apart from the similarity appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental, no infringement of the copyright comes into existence.

6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law.

7. Where the question is of the violation of the copyright of stage play by a film producer or a director, the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyright work has expressed the idea. Even so if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.

The lay observer test was successfully used in all subsequent cases of Copyright infringement in India like R Madhavab v SK Nayar AIR 1988 Ker 39, Associated Industries v Sharp Tools AIR 1991 Kant 406, Anil Gupta v Kunal Dasgupta (2002) 25 PTC 1, Zee Telefilms v Sundial Communications (2003) 27 PTC 457 (Bom.).

In 2004 Calcutta High Court looked into a dispute of alleged copyright infringement in Barbara Taylor Bradford v Sahara Media Entertainment Ltd (2004)28 PTC 474 (Cal.) where Barbara Taylor Bradford alleged that Sahara has copied her novel ‘A woman of substance’ to make a 300 episode TV serial titled ‘Karishma – A miracle of destiny’. The court had ruled that the law protected originality of expression and not originality of the central idea due to the balancing of two conflicting policies. The first policy was that the law must protect originality of work, thereby allowing the authors to reap the fruits of their labour and stopping unscrupulous pirates from enjoying those fruits. The second policy was that the protection must not become an over protection, thus, curbing future creativity. If mere plots and characters were to be protected by copyright, all authors could not write anything 'original' at all, on a similar plot or on similar characters.

However in 2003 the Bombay High Court had given a different interpretation to the word ‘copy’ in Star India v Leo Burnett (2003) 27 PTC 81 where the court observed that making of another film, even though it resembles another film, does not infringe the copyright in the later, provided that it has not been made by a process of duplication i.e. by using mechanical contrivance. Thus if a film is shot separately by different persons and it still resembles the earlier film, the subsequent film is not a copy of the first film and does not amount to infringement. A narrow copyright protection is accorded to cinematograph film as the requirements of originality is absent for claiming copyright in films [see diff. between section 13(a) and 13(b) of the Copyright Act].

But this approach of mechanical duplication test has not been taken up by any other High Court and the present single bench decision in Namaste London - Poran Jaaye Joliya Re copyright dispute reinforces the lay observer test. All eyes will be on the two-judge bench, headed by Justice Pinaki Chandra Ghosh, decision expected this afternoon.