The author is a fifth-year law student at the National University of Study and Research in Law, Ranchi. With a specialisation in Intellectual Property Rights, Aditya has a keen interest in the Trademark. Design and Copyright Laws.
The idea-expression dichotomy is weaved into the very essence of copyright law. The principle essentially enunciates that the exclusive rights of a copyright owner are limited to his original expression and do not extend to the underlying idea of a copyright eligible work.
As eminent as the principle is, there are important issues which plague its interpretation. The Indian judiciary has often struggled to honour this distinction and has on occasion changed its interpretation of the overarching principle. While the majority of copyright infringement cases ascribe to the average observer analysis, there are some decisions which have adopted alternate approaches. Although, deviation from the average observer test has been scarce and very rare.
Recently, the Bombay High Court explicitly adopted “abstraction-filtration-comparison (AFC) test,” which has been crafted to aid the demarcation of idea from expression. While there have been cases where the test has been cited by the court, this is the first order where an explicit adoption of the test and its nomenclature can be witnessed.
The plaintiff is a writer of considerable repute, and is the author of popular novels and a collection of short stories. The present dispute is in relation to one such short story titled “Singardaan” (Urdu for vanity box).
First published in 1993, the story has since been adopted into a play and published as a short story in Hindi. It essentially revolves around the acquisition of a vanity box by the Hindu protagonist, from a Muslim prostitute in the backdrop of communal riots. The protagonist is involved in the protest and forcefully enters the quarters of the Muslim woman. He acquires the vanity box and takes it to his house. He witnesses a change in the transformation and behaviour of his wife and daughter who take an instant liking to the box. The plaintiff alleges that the unique nature of the story is the influence a lifeless object has on the lives of people, by virtue of the human vibrations it absorbed over several generations of use.
The plaintiff alleges that a web-series produced by the Defendants which is titled ‘Singardaan,’ is infringing of his work. The series involves a devout Hindu grocery shop owner who falls in love with a Muslim prostitute. During communal riots, the prostitute is seriously maimed and as her last wish, asks the protagonist to destroy her vanity box. Unable to destroy the box, the protagonist takes the box to his house. From that day onwards, he witnesses a change is his wife’s and daughter’s behaviours. Eventually, he finds his daughter in an intimate position with his servant. On seeing this, he is reminded of the prostitute’s last wish and buries the vanity box.
Justice Gupte considers a list of foreign judicial precedents to underline the relevance of the idea-expression dichotomy in copyright law. Admitting to the practical difficulties, the court opines that “extraction,” is the most satisfactory approach to the demarcation.
No copyright in the title of a film.
Deliberating on the settled proposition of law, the court obliterated the plaintiff’s claim of infringement on the basis of the title. Opining that the plaintiff does not enjoy any copyright in the title, the court ruled that the only remedy available is the common law remedy of passing off. Since passing off requires showing of substantial goodwill the issue was referred to trial.
Adoption of the abstraction test
Referring to the Nichols v. Universal Pictures Corp. case, Justice Gupte elaborated on the import of the AFC test and its subsequent development. He opined that in a “series of abstractions,” the court has to draw a line, above which are the protectable elements of a copyright and below which, the elements are unprotectable. In drawing such line, the court had to impose its own value judgement, by applying its knowledge of subject matter to a specific expression of that subject.
After significant abstraction of the story, the Court arrives at the unprotectable idea. The line of abstraction drawn by the court is “an artefact belonging to someone that brings out in its user, by its use, a change in appearance or behaviour in line with the one to whom the thing or artefact originally belonged.” At this point, the court admits that if a subsequent user uses this premise to develop their story, the prior user shall not have a claim of copyright infringement. Although, it is noted that the defendants story copies far more than the defined line of abstraction.
Factoring abstraction in the infringement analysis
The court then attempts to define the contours of judicial scrutiny in a copyright infringement dispute. It concludes that after the showing ownership of copyright, the plaintiff has to merely show reasonable capability of succeeding at trial.
Despite the abstraction of the plaintiff’s story, the court can be seen departing from the AFC test and adopting the average observer test. It opines that if the defendants’ web series if shown to a person who has read the plaintiff’s story, such person would clearly consider it to be an adaptation. The court goes as far ahead to refer to RG Anand v. Deluxe Films where the average observer test has been hailed as “surest and safest” way to ascertain copyright infringement.
Although, while concluding, the court refers to its abstraction line to counter the defendants’ claim that they have merely copied the central theme of the plaintiff’s story. Conclusively, Justice Gupte opines that the characters and the overall setting bear a substantial similarity with the plaintiff’s story. The fact that the story of the defendants after the death of the Muslim prostitute is identical to the plaintiff’s story, finally tilts the metric in the plaintiff’s favour.
Deciding the question of copyright infringement in the favour of the plaintiff, the court did not grant an injunction the plaintiff. The decision of the court is premised on the fact that balance of convenience lied in favour of the defendants. The defendant was directed to maintain the account of profits from the date of publication of the web-series till the pendency of the suit, so as to ensure that the plaintiff could be monetarily compensated in case the final suit is decreed in favour of the plaintiff.
The fact that Justice Gupte explicitly cited the judgement from the Nichols case, and adopted the AFC test, is arguably the most important element of the present judgement. Issues surrounding copyright infringement have become rather commonplace in light of the growth of OTT platforms in India. Recent cases which deal with similar subject matter are XYZ Films LLC. v. UTV Motion Pictures and Sameer Wadekar & Anr. v. Netflix Entertainment Services Pvt. Ltd. In both of these cases, while a court returned a finding of considerable similarity, neither court answered favourably on the issue of copyright infringement. Justice Gupte’s judgment is peculiar because it widens the right of adaptation available to a copyright owner under section 14 of the Copyright Act of 1957.
The adoption of the AFC test can arguably help the development of the merger doctrine and the scene-a-faire analysis in India. While there has been passive adoption of both the doctrines in Indian copyright jurisprudence, explicit and complete adoption is absent.
Albeit briefly, the reference that the court makes to the average observer test, potentially dilutes the adoption of the AFC test. Therefore, the precedential value of the adoption remains to be addressed.
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