1.1 Introduction
The primary purpose of this essay is to analyze the copyrightability of a judgment in India. It will examine whether a copyright can be granted to a judgment at all, and if yes, to what extent such copyright can extend.
1.2 The Law For Copyright In Raw Judgment
Section 2(k) of the Copyright Act, 1957 (hereinafter, the Act™) defines government work as work made by, or under the direction of any Court or Tribunal. Section 17(d) provides that the government would be the first owner of all such work, unless there is a contract to the contrary. Clearly, judgments by the Court would be government work and the government its first owner. However, Section 52(1)(q)(iv) makes it clear that the reproduction of judgments, unless expressly prohibited by the Court, would not constitute a copyright infringement. Thus it is clear the raw text of anyjudgment or decision is in public domain and can be copied freely.[1]
1.3 The Law For Copyedited Judgment
The issue is whether the entire copyedited judgment is copyrightable as an original literary work. Also, what is the threshold and criteria for providing such a copyright protection to such an edited judgment?
1.4 International Law
Before delving into the Indian position on copyright in judgments, it is essential to examine the law in other countries.
1.4.1 British Law
It is well established in copyright law, that for a copyright to be granted, the work has to be original.[2] Originality doesn™t refer to any new and inventive thought or idea, rather that the work should not be a mere copy of any subsisting work. Originality is therefore a matter of skill, judgment or labour. Also, literary quality is not a standard to be used while granting copyright. This standard of originality is called the sweat of the brow doctrine, wherein skill, labour and capital are sufficient for granting copyright to a derivative literary work.[3] A copy edited judgment (like the one in SCC) is a derivative literary work based on the original raw judgment. The creation of a copy-edited judgment requires independent skill, labour, capital and reasoning.
However, the Indian Supreme Court rejected the sweat of the brow as a standard for granting copyright in derivative work.[4]
1.4.2 American Law
The main flaw with the sweat of the brow theory is that it tends to monopolise the data in public domain and is not used in the American Law. This is highlighted in Feist Publications Inc. v. Rural Telephone Service Co.[5] Here Rural Telephone would publish a telephone directory in a certain format. Feist Publications also wanted to publish a directory albeit in a different format and asked Rural Telephone for its listings, which was not given. Feist published its dictionary and got sued. As per the doctrine of sweat of the brow, Rural argued that Feist should have collected the data on its own. The US Supreme Court then held that mere originality is not sufficient for granting a copyright. There has to be a minimal degree of creativity in selection and arrangement.
This modicum of creativity deviates from mere originality needed for granting copyright.
1.4.3 Canadian Law
In CCH Canadian Ltd. V. Law Society of Upper Canada[6], the Canadian Supreme Court laid down different criteria for granting of a copyright. There has to be orginailty, that is, the work must be the author™s own work. Also, the work must a product of the author™s skill and judgment. This exercise of skill and judgment cannot be a trivial and mechanical one.
The Canadian Court has rejected the sweat of the brow doctrine, citing it as a low standard for granting copyright. It has removed the requirement of creativity (implying novel and non obviousness) as too high a standard, more associated with patents rather than copyright.
1.5 The Indian Position
The Indian position was laid down in EBC v. D B Modak[7]
Facts
The plaintiff is SCC, which is a renowned case report publisher. It would publish its version of the judgment complete with headnotes, footnoted, edited raw judgment, reference and citations of the same. The defendants were Spectrum Business Support Ltd, which produced Grand Jurix and Regent Data Tech Pvt Ltd which brought out CD Roms which lifted everything from the plaintiff™s edited judgment. The plaintiff felt this was an infringement of their copyright. The issue was whether the plaintiffs had any copyright, which in fact had been infringed?
Accordingly, the plaintiffs approached the High Court for an injunction. The Single Judge Bench dismissed the application for interim relief; however the defendants conceded that the plaintiffs had copyright over headnotes. The plaintiffs appealed to the Division Bench, which held that the appellants had copyright over footnotes, editorial notes as well as headnotes. As such, no injunction was granted and the appellants approached the Supreme Court for an injunction.
The Decision Of The Indian Supreme Court
After analyzing the law of various countries, the Apex Court decided to follow the principle laid down in the Canadian Court.[8] First, there could not be a copyright in the original text of a judgment.[9] Second, in a derivative work, copyright would be granted only if the work has some skill, labour as well as a minimal level of creativity in itself. The edited judgment therefore must have some distinguishing features[10] and add a distinct flavour of its own. While the creativity required need not be non-obvious, a trivial variation of the original would not enable the grant of copyright.[11] Accordingly, the Court granted copyright to SCC only for certain inputs.
The style, arrangement and presentation of SCC were made to make the case more user-friendly, but the Court held that this exercise lacked even a certain level of creativity. It was a product of only labour and capital, accordingly copyright was not granted for this.[12]
There was sufficient input in the original text like segregating paragraphs, adding internal paragraph numbers and indicating which Judge concurred and dissented. The Court felt that such input was a result of knowledge, sound judgment and legal skill[13], thereby having the minimum level of creativity.
With this rationale, the Court granted interim relief to SCC, while directing respondent to refrain from copying the headnotes, footnotes and editorial notes of SCC. The appeal of the plaintiff was partly allowed.
1.6 Conclusion
It is submitted that the Court could not come up with a practical principle. It rejected the sweat of the brow and non-obvious creativity to adopt a midway, that is, the requirement of minimal creativity in a derivative work. This has resulted in a chaotic, subjective principle which has to be applied factually. In the absence of a clear cut definition of minimal creativity, there is a fear in the mind of the authors as to whether their work satisfies the requirement for copyright.
By Harshita Jalan
Student, IVth year, B.A. LLB. (Hons.)
West Bengal National University of Juridical Sciences
[1] Eastern Book Company & Ors v. Navin J. Desai 2001 (58) DRJ 103
[2] Walter v. Lane, 1900 AC 539, University of London Press Ltd. V. University Tutorial Press Ltd 1916 2 Ch 601, Kelly v. Morris (1866) LR 1 Eq 697
[3] (2008) 1 SCC at pp 146
[4] Supra note 3 at pp. 111
[5] 499 US 340
[6] (2004) 1 SCR 399 (Canada)
[7] (2008) 1 SCC
[8] Supra note 4 at pp 112
[9] Section 52 (q) (iv) of the Copyright Act, 1957
[10] Supra note 8
[11] Id
[12] Id
[13] Supra note 8 at oo 115
