Copyright Law in the Digital World

Manoj Kumar Sinha

Vandana Mahalwar Editors

Law in the

Digital World

Challenges and Opportunities

Manoj Kumar Sinha • Vandana Mahalwar

Editors

World

Challenges and Opportunities

123

Editors

Manoj Kumar Sinha

The Indian Law Institute

New Delhi

India

Vandana Mahalwar

The Indian Law Institute

New Delhi

India

ISBN 978-981-10-3983-6 ISBN 978-981-10-3984-3 (eBook)

DOI 10.1007/978-981-10-3984-3

Library of Congress Control Number: 2017931569

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Preface

The intriguing relationship between freedom of expression and copyright law has

deepened in the 21st century. Freedom of expression and copyright are seen as two

harmonizing concepts, but there exists two opposing views also against this

backdrop. Some characterise copyright as “engine of free expression”. Copyright

incentivises the creations and promotes the freedom of expression. The obverse of

this reasons the copyright law to operate as a fetter on what others do express and

hence, results in a tension between copyright law and freedom of expression. The

potential coexistence and conflict between the freedom of expression and copyright

law has brought into being much of academic reviews and interpretations.

Copyright law, more because of advent of the internet; open-source software initiatives; peer-to-peer exchanges and changes to copyright rules, is under the

scholarly debates. The debates about copyright law unfold the questions relating to

substantive law, right to education, freedom of expression and the concept of

ownership. These debates question our existing legal system on how do they work

and how should they work in the internet age. There are scholars who argue that

over emphasis on commercialising the literary and artistic creations is epistemically

unfavourable to the overall advancement as it inhibits the stream of information.

The philosophical or theoretical justification behind the copyright law is utilitarian

i.e. best situations are those in which people are in total as happy or fulfilled as

possible. The internet has landed as one of the most revolutionary social development which has exploded more prospects to access the information. The emergence of digital media and network connections has enabled the dissemination of

information which was previously unimaginable. The intellectuals set up dichotomous justifications for copyright protection, as a few view copyright owners having

control over their creations and extracting some commercial value, while others

perceive it as a mechanism which promotes the mass interests. Technological

advancements upsetting the link between copyright and freedom of expression,

have radically impacted the scope of protection under the copyright law.

This volume is set of papers reflecting the diverse perspectives on copyright law.

A good number of papers canvass almost the entire breadth of copyright law which

will appeal the professionals in the copyright world.

The editors would like to express sincere thanks to all the contributors for their

significant contributions and insights without which this book may not have been

possible.

New Delhi, India Manoj Kumar Sinha

Vandana Mahalwar

vi Preface

Contents

Idea-Expression Dichotomy and Originality Requirements

for Copyright Protection: An Analysis of the Jurisprudential

Underpinnings of the Judicial Pronouncements in India ............. 1

T.G. Agitha

The Economics of Intellectual Property and Economic

Entrepreneurship of Copyrights ................................ 45

Rodney D. Ryder and N.S. Sreenivasulu

Jurisprudential Analysis of the Rights of the Users

in Copyrighted Works ........................................ 61

Yashomati Ghosh

Marrakesh Treaty to Facilitate Access to Published Works

for Visually Disabled: Putting an End to Global Book Famine ........ 97

V.K. Ahuja

Reproduction Right in Digital Medium and Free

Use for Educational Purpose—An Analysis of National

and International Obligations of India to Provide Education

to All Viz. a Viz. Protecting Copyright ........................... 109

Poonam Dass

‘Minor Exemptions’ Doctrine in National Copyright Law:

Guidance from the WTO Jurisprudence .......................... 133

R. Rajesh Babu

Vandana Mahalwar

Anirban Mazumder

vii

Software Protection Under Copyright Law........................ 185

V.K. Unni

Database Protection in India: Need for Reforms ................... 205

K.D. Raju

in the New Legal Regime in India ............................... 221

C.P. Dayananda Murthy

First Sale Doctrine in the Digital Era ............................ 255

Amit Jyoti S. Gomber

Hosting Service Providers’ Liability for Third Party Content:

A Malaysian Perspective....................................... 277

Cheng Peng Sik and Pek San Tay

Criminalization of Copyrights Infringements in the Digital

Era with Special Reference to India ............................. 299

C.P. Nandini

viii Contents

Editors and Contributors

About the Editors

Manoj Kumar Sinha is the director at the Indian Law Institute, New Delhi. He

obtained his Ph.D. in international law from Jawaharlal Nehru University, New

Delhi, after attaining his LL.B. from the University of Delhi, India, and his LL.M.

from the University of Nottingham, UK. His areas of specializations include human

rights, international humanitarian and refugee law, international criminal law,

international law, international institutions, and constitutional law. He has published extensively in these areas in prominent Indian and international law journals.

He currently serves on the editorial boards of various reputed national and international journals, as well as research bodies of many universities in India and

abroad.

Vandana Mahalwar is an assistant professor at the Indian Law Institute, New

Delhi, India. Prior to this, she was an assistant professor at the Faculty of Law,

University of Delhi, India. She holds a B.A.L., LL.B. (Gold Medal), and LL.M.

(Gold Medal) from Maharshi Dayanand University, Rohtak, India, and obtained her

Ph.D. in law from the National Law University, Delhi, India. With various publications in reputed journals to her credit, her current focus is on issues pertaining to

the right of publicity, character merchandising, and intellectual property laws.

Contributors

T.G. Agitha Inter University Centre for Intellectual Property Rights Studies,

Cochin University of Science & Technology, Cochin, India

V.K. Ahuja Faculty of Law, University of Delhi, Delhi, India

R. Rajesh Babu IIM Calcutta, Kolkata, India

Poonam Dass Faculty of Law, University of Delhi, Delhi, India

Yashomati Ghosh National Law School of India University, Bangalore, India

Amit Jyoti S. Gomber Centre for Intellectual Property and Technology Law,

Jindal Global Law School, O.P. Jindal Global University, Sonipat, India

Vandana Mahalwar Assistant Professor, The Indian Law Institute, New Delhi,

India

Anirban Mazumder National University of Juridical Sciences, Kolkata, India

C.P. Dayananda Murthy Damodaram Sanjivayya National Law University,

Visakhapatnam, India

C.P. Nandini Damodaram Sanjivayya National Law University, Visakhapatnam,

India

K.D. Raju Rajiv Gandhi Institute of Intellectual Property Law, IIT Kharagpur,

India

Rodney D. Ryder Advocate Supreme Court of India, New Delhi, India

Cheng Peng Sik Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia

N.S. Sreenivasulu National University of Juridical Sciences, Kolkata, India

Pek San Tay Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia

V.K. Unni IIM Calcutta, Kolkata, India

x Editors and Contributors

Idea-Expression Dichotomy

and Originality Requirements

for Copyright Protection: An Analysis

of the Jurisprudential Underpinnings

of the Judicial Pronouncements in India

T.G. Agitha

Abstract This chapter intends to examine the significance of idea/expression

dichotomy and the requirement of originality in the copyright law both in the

traditional and modern context; that is, in the context of the emergence of new

technologies. It also aims at examining the Indian case law in these areas and the

problems created by the judicial pronouncements in this area. The basic requirements of protection differ considerably for different forms of IP depending upon the

nature, scope and extent of protection extended by each forms of IP. Such basic

requirements are with a view to retain a robust public domain facilitating further

creativity. In the copyright context the major requirements are that of originality in

expression of the copyright content and the mandatory exclusion of idea, facts,

themes and plots from copyright coverage. The originality requirement, which is

very minimal in nature, is with a view to exclude further propertisation of already

available information/creations. Ideas, facts, themes, plots etc., on the other hand

aim at exclusion of building blocks from protection. The Indian jurisprudence

which could be deduced from the judicial pronouncements in India in this respect is

in need of urgent scrutiny. The strength and weaknesses of Indian decisions and the

implications of it on the dissemination of information which is an equally important

concern of copyright protection is the major objective of this chapter.

T.G. Agitha (&)

Inter University Centre for Intellectual Property Rights Studies,

Cochin University of Science & Technology, Cochin, India

e-mail: [email protected]

M.K. Sinha and V. Mahalwar (eds.), Copyright Law in the Digital World,

DOI 10.1007/978-981-10-3984-3_1

1 Introduction

Lord Macaulay depicts copyright as “a tax on readers for the purpose of giving a

bounty to writers.”

1 He believed that property, being the creature of the law, can only

be defended on the ground that it is a law beneficial to mankind.2 Others, like Justice

Brandies joins him by stating that the noblest of human production such as knowledge, truths ascertained and conceptions and ideas become free as the air to common

use after voluntary communication to others, and the attribute of property upon such

incorporeal productions could be continued after such communication only in certain

classes of cases where public policy demands it.3 For him, such situations in which

there is conferment of property right over information—for example when there is a

creation or invention or a discovery—are exceptions to the general rule.4 Information

is a public good. It is non-exclusive and non-rivalrous. Propertization of information

creates artificial scarcity. Still there may be situations when it is justified for better

public good. For example, copyright protection is justified in economic terms by

Landes and Posner on the ground that it trades off the cost of limiting access to a work

against the benefits arising out of providing incentives to create more works.5

Conceptually, the unassailable objective of copyright law is to encourage further

creativity by rewarding creators for their works. But this objective is fulfilled only

when such creation, thus secured, is properly disseminated among the general

public. Since every author builds on existing creations and available information,

hence the copyright, which confers on the author exclusive property rights over his

1 A Speech delivered by Thomas Babington Macaulay in the House of Commons on the 5th of

February, 1841 Opposing Proposed Life + 60 Year Copyright Term available at http://homepages.

law.asu.edu/*dkarjala/OpposingCopyrightExtension/commentary/MacaulaySpeeches.html. He

says: “The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary

of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on

vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In

order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am

ready to increase the tax, if it can be shown that by so doing I should proportionally increase the

bounty. My complaint is, that my honourable and learned friend doubles, triples, quadruples, the

tax, and makes scarcely any perceptible addition to the bounty.”. 2 A Speech Delivered in a Committee of the Houses of Commons on the 6th of April, 1842, by

Thomas Babington Macaulay on the third of March, 1842, Lord Mahon obtained permission to

bring in a bill to amend the Law of Copyright. This bill extended the term of Copyright in a book

to twenty-five years, reckoned from the death of the author available at http://homepages.law.asu.

edu/*dkarjala/OpposingCopyrightExtension/commentary/MacaulaySpeeches.html. 3 Dissenting note in International News Service v. Associated Press 248 US 215 (1918). 4 248 US 215, 250 (1918). Also read Yochai Benkler, who, in agreement with Justice Brandies,

argued that privatization of information should be allowed only to the extent and limited to those

instances when the Govt. has good reasons that would justify regulation of information production

and exchange Benkler 1999. 5 Landes and Posner 1989. Since the cost of copying is often insignificant when compared to the

cost of creation, the only way to discourage others from making copies will be to price it at or close

to the marginal cost. But then the creator’s total revenue may not be sufficient to cover the cost of

creating the work. Thus copyright protection becomes relevant.

2 T.G. Agitha

works, becomes a difficult tool in furthering creativity unless effectively handled.

Even in the economic perspective it is understood that copyright protection promotes economic efficiency only when its principal legal doctrine is to maximize the

benefits from creating additional works so that they outweigh the losses from

limiting access and cost of administering copyright protection.6 Or else, copyright

protection will become counterproductive.7 Therefore, striking the correct balance

between facilitating access to copyrighted works and providing incentives to creator

is the central idea of copyright law.8 This could be ensured only when the welfare

losses from the monopoly pricing and reduction in competition are balanced with

reduced scope of copyright protection. Since copyright is a monopoly its burdens

should not outweigh its benefits.9

The mandatory minimum requirements for copyright protection and the exclusions of the building blocks of creativity from copyright coverage are the most

significant methods used to strike the correct balance. In the case of copyright law,

the requirement of originality of expression, and the exclusion of ideas, facts, themes,

systems etc., from copyright protection, are aimed at promoting economic efficiency

by balancing the effect of copyright protection with the social costs due to limiting

access. The originality and expression requirements serve different objectives. The

originality requirement ensures that as a quid pro quo to copyright protection consumers get something more than just copies of existing works whereas the expression

requirement ensures that the building blocks of creativity remain free for use by all.10

2 Idea v. Expression

Landes and Posner explain the economic rationale of not protecting ideas in terms

of its impact on creativity. If an idea can be expressed in ‘n’ number of ways and

the idea of the first author alone is protected, the cost of expression of remaining

‘n − 1’ authors would increase because each one would have to invest time and

effort in coming with an original idea for his work or to substitute additional

expression for the part of his idea that overlapped the first author’s. The number of

works created would be reduced and social welfare would fall.11 They explain why

6 Ibid. They say that “The less extensive copyright protection is, the more an author, composer or

other creator can borrow from previous works without infringing copyright and the lower therefore, the cost of creating a new work”. 7 Id., p. 332. 8 Id., 326; Also read Abrams 1992. 9 Chafee 1945. 10 Goldstein (1996) Copyright, second edition § 2.2.1.4 (2:9). 11 Landes and Posner 1989. Instead of stressing on the welfare loss arising out of monopoly of the

idea and the higher price per copy that is normally associated with monopoly, the authors

emphasized on the increase in the cost of creating more works and the reduction in the number of

works.

Idea-Expression Dichotomy and Originality Requirements … 3

the rule that excludes ideas from copyright protection and protects only expression

of ideas is Pareto optimal in this way. Every author is also a user of ideas developed

by others. The comparatively less cost in coming up with an idea rather than

attempting to express it—which is a costlier process—and the chances of enticing

rewards from licensing the idea to others would encourage rent seeking if ideas

themselves become subject matter of copyright protection.12 Though this may

encourage people to come up with more and more ideas, this may also have the

negative impact of discouraging dissemination of ideas, resulting in welfare loss.

Landes and Posner expect that since every originator of an idea gets a normal return

during the lead time even in the absence of copyright protection, the authors, who

have no clue as to who would be the first to come up with an idea, will unanimously

agree to a rule that protects expression and not ideas.13

Application of idea-expression distinction will vary with the type of work in

issue.14 The boundary between idea and expression in a particular field is decided

on the basis of policy judgment about the extent to which monopoly should be

allowed in that field to the original contributions of creators and the requirement as

to what should be left to public domain for free use by others working in the same

field.15 As a consequence, the line between idea and expression in a particular type

of work will depend upon many factors.16

Expression encompasses not only a work’s precise words, sounds, or visual

depictions but also elements that lie beneath the work’s surface, occupying the

stratum between literal expressions and underlying ideas.17 Since copyright protection extends beyond the literal aspects, where a work’s idea leaves off and its

expression begins becomes a troublesome question and depends, to a great extent,

upon specific instances. Goldstein is of the view that the two guiding principles for

the courts in defining protectable expression are (i) neither draw the line too narrow

to leave the author without incentive nor draw it too broadly to block further

creations, and (ii) the courts should in close cases err on the side of finding protectable expression.18

12 Landes and Posner 1989. 13 Landes and Posner 1989. 14 Goldstein. 15 Ibid. 16 This will be evident from studies on the extent of copyright protection for computer programs

and other utilitarian works, which is beyond the scope of this study.

17 Goldstein. 18 Ibid.

4 T.G. Agitha

2.1 Distinguishing Ideas from Expression

Since ideas are not protected, any work, if differently told or expressed, will not

violate an earlier work. However, as already discussed, copyright protection cannot

be limited to cases of literal or word by word copying. If the protection is limited

literally to the text, a second comer would escape copyright violation by making

immaterial variations to the first author’s work.19 For example, if a second comer

copies the detailed plot sequences of a drama, but uses different dialogues it constitutes non-literal infringement.20 Nichols v. Universal Pictures Corp.,

21 was the

first decision to expressly recognize copyright protection against non-literal copying. Judge Learned Hand, in that case, categorically stated that copyright protection

has never been limited literally to the text while adverting to the complexities

involved in doing so. Protection against non-literal copying makes it extremely

difficult to find when expression stops and idea begins.

The issue in Nichols was whether Universal had infringed Ms. Nichols’s

and The Kellys’. Reviewing the similarities and differences in incident, character,

and overall plot of the play and the film, Judge Hand concluded that “the defendant

took no more—assuming that it took anything at all—than the law allowed.”

22 This

case is important since it introduced the abstractions test in order to differentiate

between ideas and expression in the following words:

Upon any work, and especially upon a play, a great number of patterns of increasing

generality will fit equally well, as more and more of the incident is left out. The last may

perhaps be no more than the most general statement of what the play is about, and at times

might consist only of its title; but there is a point in this series of abstractions where they are

no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to

which, apart from their expression, his property is never extended.23

The Indian copyright law does not expressly exclude ideas from copyright

protection. However, in R.G. Anand v. Deluxe Films24 after referring to various

judicial decisions, from both Indian and western jurisdictions, the Supreme Court of

India stated that “an idea, principle, theme, or subject matter or historical or

19 Nichols v. Universal Pictures Corp. 45 F.2d 119 (2nd Cir. 1930). 20 Samuelson 2013. 21 45 F.2d 119 (2nd Cir. 1930). He said: “It is of course essential to any protection of literary

property, whether at common law or under the statute, that the right cannot be limited literally to

the text, else a plagiarist would escape by immaterial variations. That has never been the law, but,

as soon as literal appropriation ceases to be the test, the whole matter is necessarily at large, so that,

as was recently well said by a distinguished judge, the decisions cannot help much in a new case.” 22 45 F.2d 119 (2nd Cir. 1930). 23 45 F.2d 119 (2nd Cir. 1930). 24 AIR 1978 SC 1613: (1978) 4 SCC 118: PTC (Suppl.) (1) 802 (SC).

Idea-Expression Dichotomy and Originality Requirements … 5

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