Conceptually speaking, copyright infringement analysis in a given factual scenario involves three basic steps – (i) establishing that the work is protected under copyright, exists; (ii) the alleged infringing act falls within the scope of exclusivity offered for that work; and (iii) the act is actually infringing in nature. The scope of this note is limited to direct infringement of copyright.
Standard for Determining Originality
As per Section 13 of the Indian Copyright Act, copyright subsists, inter alia, in ‘original’ literary, dramatic, artistic, musical works as well as cinematographic films and sound recordings. The plaintiff in any copyright infringement suit must first establish that his work is original if it is literary, dramatic, artistic or musical in nature. However, originality itself has not been defined anywhere in the Copyright Act. Indian courts have relied upon doctrines laid down in various judicial pronouncements in the UK and the US.
The Privy Council, in the case Macmillan & Company Ltd. v. Cooper, approved the principle laid down in University of London Press v. University Tutorial Press , which laid down that copyright over a work arises and subsists in that work due to the skill and labour spent on that work, rather than due to inventive thought. This is more popularly known as the ‘sweat of the brow’ theory – originality derives merely from the fact that sufficient labour, skill, capital and effort (whether physical or otherwise) has been applied. This seems to be the original principle adopted in India as well, as illustrated by the Delhi High Court judgment in the case of Burlington Home Shopping v. Rajnish Chibber, where it was held that a compliation may be considered a copyrightable work by virtue of the fact that the there was devotion of time, labour and skill in creating the said compilation.
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(Adarsh Ramnujan is Associate, IPR Division, L&S, Prateek Bhattacharya and Esheetaa Gupta were interns at L&S)