Legal Challenges to Copyright Registration in India: Lawyers Advice

Indian Copyright Law abides by international standards laid down in the TRIPS Agreement. The Copyright Act, 1957, after a number of amendments, completely abides by the Berne Convention, 1886 and the Universal Copyrights Convention.
However, there are also various requirements for a copyright to be registered and there are various legal challenges to the registration of a copyright.

Challenging a Copyright on its Nature

1. Methods, Ideas or Systems
   Methods, ideas and systems and are not protected under Copyright Law, this includes scientific or technical methods or discoveries; making, or building things; business operations or procedures; formulas, algorithms; mathematical principles; or any kind of concept, method of operation or process.
2. Well-known Information
   Includes items that are believed to be public property having no known authorship.
   Items such as height and weight charts, tape measures and rulers, telephone directories, standard calendars and tables or lists taken from public documents. Even an expression such as “the sky is blue” falls under this group considering there is no known authorship linked with it.
3. Choreographic Works
   Regardless of it being original or not, a choreographic work is not subject to copyright protection except if it has been notated or videotaped. Speeches that have not been prepared before or recorded after they are given, along with any other forms of presentations are treated the same way.
4. Names, Titles, Short Phrases, or Expressions
   Titles, names, expressions or short phrases such as catchy slogans made for describing business products, titles of works, pseudonyms and business names. Things like recipes also come under this category. Still, exceptions exist, such as when recipes are collected into cookbooks and if some substantial literary expression accompanies the recipe, or a term that used for text referral such as directions, or when a combination of recipes exists, there may exist grounds for copyright protection.
5. Fashion
   Fashion such as a dress, shirt or any kind article of clothing is not under protection by copyright law. This is because fashion is about accessories and clothing, which are considered useful articles under Copyright Law. While it not possible to copyright an actual dress, a specific fabric pattern can be subject to a copyright.

Objection as a Legal Challenge
After an application for copyright has been accepted, the Examiner examines the copyright application.
In the 30 days waiting period, the copyright examiner reviews the application. Such a waiting period exists so that filing of objections can take place, if any, and be reviewed.
• In the event that no objections are raised, the Examiner himself goes ahead to evaluate and analyse the application to look for inconsistencies.

1. If some inconsistencies are found, a letter detailing such inconsistencies, is issued to the applicant. Depending on how he replies, the Registrar conducts a hearing. After the inconsistency is fixed, the applicant is permitted to carry on with their process of registration.
   • In the event that objections are raised by an individual against the applicant, both parties are sent letters and they are summoned by the Registrar.
2. If the objection is rejected after hearing, the application goes ahead for analysis and the aforementioned procedure for inconsistencies is followed.
3. If the objection is not explained or inconsistency is not fixed, the applicant’s application is disallowed and a letter of rejection is sent to the applicant. With that, the copyright registration procedure for that application ends there.

Originality as a Legal Challenge
Section 13(1) of the Indian Copyright Act, 1957 says that copyright exists in “unique literary, dramatic, musical and artistic compositions.” Still, the Act neglects giving any test or definition to decide the uniqueness of a work. The court is thus, left with the responsibility to determine the extent of originality needed for any work to claim copyright protection.
However, whether this degree of creativity is likely to make a work unique is still a grey area. There is no clear answer as to when a work will be deemed as original in the eyes of law. Particularly in the case of derivative works, it is very uncertain as to when a derivative work can be acknowledged as a distinct work of art and claim legal protection of the law of Copyright.

Doctrine of Sweat of Brow
By this doctrine, an author gets rights by way of simple thoroughness during the conception of a work. Extensive creativity or “originality” is not necessary. The creator is eligible for such rights owing to the efforts and expense dedicated by him in the making of such a work.

Doctrine of Modicum of Creativity
The notion of “originality” has endured a shift in paradigm from the doctrine of “sweat of the brow” to the doctrine of “modicum of creativity” laid down in Feist Publication Inc. v. Rural Telephone Service (499 U.S. 340) by the United States Supreme Court. The “modicum of creativity” doctrine specifies that originality exists in a work where an adequate amount of intellectual imagination and judgment went into the creation of a work. Furthermore, the standard of originality need not be high but some amount of imagination should be there for a Copyright Protection.

In the Delhi High Court case of Burlington Home Shopping v Rajnish Chibber (1995 IVAD Delhi 732), where the facts were the same as Feist’s case, held that a compilation is copyrightable.
Nevertheless, the level of ‘originality’ followed in India is not as low as the level followed in England. The Bombay High Court has categorically said there is no copyright for happenings and events which could be news stories meaning a reporter cannot call for a copyright over an event simply because it was reported by him first.

A landmark case in this regard is Eastern Book Company v. D.B. Modak (Appeal (Civil) 6472 of 2004), where the Supreme Court rejected the doctrine of ‘Sweat of the Brow’ and shifted to the doctrine of ‘Modicum of Creativity’ which was pursued in the US. The introduction of the concept of “flavour of minimum requirement of creativity” was done in this case. It was held that to claim copyright, the standard of creativity applied does not necessitate something must be non-obvious or original, but it is required that some level of creativity exists in the work to claim a copyright.

Therefore, the Court approved copyright protection to the contributions and additions done by the SCC editors. At the same, the Court also clarified that any order or judgment of any Court is in public sphere and everyone has the right to publish and use them and thus, no claim of copyright can be done on the same.

In conclusion, inspired by developments around the world, standards of originality as per copyright law in India are designed to encourage creativity while still protecting the expression of one individual. Such creativity also has room for being questioned before being registered by way of allowing objections from the public on various grounds. The law also guarantees that there is no scope of frivolous, basic or well-known ideas to be copyrighted, thereby ensuring the quality of any other genuine copyright is not eroded.
Authored By: Adv. Anant Sharma & Parinay Gupta