Copyright is an Intellectual Property Right that, when an author’s creativity is given an appropriate expression, legally protects it.
It gives the author exclusive right to produce, communicate to the public, sanction performances, adapt, translate, license and sell (1). The rationale behind, is that it encourages an author to create, by helping him recoup the ‘costs of expression’ and ‘costs of production’.(2) Economists recognize that in absence of copyright protection, especially for certain creations, there would be no incentive to create them. James Boyle has argued that we are entering a new era and are at the brink of the ‘second enclosure movement’ (3). He says that the first one took place in the 18th century, when people began to fence common lands, eventually leading to legitimatizing private property.
Under Section 13(1)(a) of the Copyright Act, 1957, copyright shall subsist in an original literary work. So, for a work to be protect-able under this section, it should be:
Literary, and
Original
A work may be considered literary if expressed in print, writing, notation or symbols (4). The term ‘literary’ in copyright is used in a sense somewhat similar to ‘literature,’ i.e., any work that is written or printed (5). This includes textbooks, novels, magazines, poems, catalogues, letters, etc. Further, Section 2(o), Copyright Act, 1957 provides that ‘literary works’ shall also include computer programmes, tables and compilations including computer databases. Section 2(ffc) of the Act says: “computer programmes” means a set of instructions expressed in words, codes, schemes or in any other form, including a machine- readable medium, capable of causing a computer to perform a particular task or achieve a particular result.” A work may be registered as a computer programme if it qualifies the Protection Prerequisites and Registration Prerequisites. For this the applicant may submit an application under Section 69 (1)(VI) of The Copyright Rules, 2013, along with the source and object code (6).
Unlike other forms of IP protection, Copyright functions on an ‘opt-out’ mechanism rather that an ‘opt-in’ mechanism. Because this right is automatic, the author does not need to register or conform to any other formality. This is called the “principal of automatic protection”, and Article 5(2) of the Berne Convention, 1886 states: “the enjoyment and the exercise of these rights shall not be subject to any formality like deposit of the copy of the work, registration, payment of registration fee, etc.,” The only requirement in Copyright is that the work should be original.
LEGAL FRAMEWORK
The Test of Originality evolved by Indian courts gauges the work on:
Non-copied
Degree of Originality
The requirement of non-copied, is absolute but is straight and simple. In Agarwal Publishing House v. Board of HS & I Education (7), the court said, a work is protected under the copyright law if “it is not copied from some other work and should originate in the author.”
The later, i.e., the degree of originality, is a little more complicated.
In the UK, during the case: University of London Press Ltd. V. University Tutorials Press Ltd (8), the court birthed the Doctrine of Sweat of the Brow. Here the court said that in order to be copyright-able a literary work must originate from the author. However, such works, need to not be originally creative. This essentially meant that the author should work on an expression himself and use some acumen and hard- work.
In US during Feist Publications, Inc., V. Rural Telephone Service Company, Inc. (9), the courts, later, evolved the Modicum of Creativity Doctrine. The court had earlier, expressly excluded the requirement of novelty, intent of originality, for originality. And, in this case it held that the doctrine of ‘sweat of the brow’ was insufficient and that a minimum degree of creativity is both necessary and sufficient to create a copyright.
Indian Courts earlier had adopted the vision of the UK courts. In the case of Associated Publishers Ltd. V. K Bashyam alias “Arya” (10), the court said that original skill and labour in execution is required.
But today, the requirement of degree of Originality in India, stands closer to the US Modicum of Creativity Doctrine.
In Eastern Book Company V. D.B. Modak (11), the court suggested that there is a required exercise of independent skill, labour and capital in creation. This skill, labour and capital shall neither be negligible, nor be merely mechanical, it should possess the notion of ‘flavour of minimum requirement of creativity’. The court also said that though a work might be derivative, as long as skill, labour and capital has been spent on it to impart quality and character, it shall be considered original.
ORIGINALITY IN A COMPUTER PROGRAMME : PRESENT
For a computer programme there are steps to develop the programme and, in this process, the developer must move away from the general idea and towards specificity. These are:
First, the developer must determine the motive of the and, in this process, desired programme.
Second, he should decide the range of function required to achieve the motive.
Third, an over-all structure is created. “What emerges out of this process is that merely writing down the actual codes is only a minuscule part of development and significantly higher effort is investigated into aspects of conceptualization and design.” (12)
It is this part where the real (and required) creativity of a computer programme is tested.
Copyright, is thus, for a non-copied original expression. The test of skill and creativity in a computer programme, is where the originality is tested.
However, with the advent of newer technology like Artificial Intelligence, this is becoming harder to gauge. Accordingly, the Copyright regime mandates an immediate overhaul. The definition of “Indian work” also needs adapt to the truly global character of these technologies.
FUTURE
With regards to the originality of a computer programme in India, we already have a base. It might be rickety at places, but it gives us a foundation. It is up to us, the legal fraternity, to identify the gaps, help bridge these gaps and nudge the IP regime in the right direction.
References:
Section 14, Copyright Act 1957
Willian Landes and Richard Posner, “An Economic Analysis of Copyright Law,” Journal of Legal Studies, 18 (1989)
James Boyle, “The Second Enclosure Movement and the Construction of the Public Domain,” Law and Contemporary Problems 66 (2003), 37–38
Practice and Procedure Manual, 2018; Copyright Office - Government of India
University of London Press Ltd. V. University Tutorials Press Ltd., (1916) 2 ChD 601
Section 70(5), Copyright Rules, 2013
AIR 1967 All. 91
Supra 5
499 US 340 (2004)
AIR 1961 ad. 114
(2008) 1 SCC 1
Vijay K Tyagi and Yashdeep Chahal, “Infringement of Copyright in Computer Programs in India”, Indian Law review, Vol. II, Winter issue, 2019
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