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Copyright Industry Intellectual Property Media Piracy

IPRMENTLAW WEEKLY HIGHLIGHTS (September 21st to September 26th)

Twitter appoints personnel in compliance of with new IT Rules

Twitter has appointed Chief Compliance Officer, Nodal Contact Person and Resident Grievance Officer in compliance of IT Rules, 2021. Twitter has appointed these individuals as employees and not ‘contingent workers’ and has also provided names of the said appointed personnel and their respective positions.

This development comes in a petition filed by Amit Acharya stating that Twitter being a ‘significant social media intermediary’ as laid down under the IT Rules, 2021, must ensure compliance with statutory duties imposed upon it by the provision of these rules.

The matter is now fixed for hearing on October 5, 2021.

Bengaluru e-gaming companies plan to challenge ban decision

An amendment to the Karnataka Police Act shall outlaw online gambling and ‘games of chance’. The key concern of various governments with regards to gaming comes through the apprehension that it promotes gambling, however, in the past, there have been judgements that approve ‘skill based gaming’ against ‘chance based games’.

The ban will affect approximately 100 gaming companies operating from Bengaluru.

ASCI dismisses advertisement plagiarism complaint by Amul

A complaint was lodged by Amul Macho alleging that the Lux Cozi advertisement starring Varun Dhawan was a ‘complete copy’ of Amul’s advertisement released in 2007. Amul sought immediate action against Lux on the grounds that the advertisement unfairly took advantage of the brand equity, reputation and goodwill generated by Amul Macho brand.

In response, Lux contended that the complaint seemed to have been initiated with an intention to malign Lux’s reputation in the eyes of public and waste the time of the Consumer Complaints Council (CCC), adjudicatory body of the ASCI. It also pointed out a list of dissimilarities to show how the concept, theme and expression of both advertisements were in complete contrast to each other and hence, there can be no scope of similarity whatsoever.

Lux also informed the CCC that Amul’s advertisement had been a subject of controversy soon after it was released in 2007 on account of its “objectionable and indecent content”, and was banned by the Ministry of Information & Broadcast across all mediums.

Observing that both advertisements barely had any similarities between them, the CCC held that Lux’s advertisement was not in contravention of the ASCI code and rejected Amul’s complaint.

Google moves Delhi High Court against confidential report leak

A writ petition was filed by Google before the Delhi High Court alleging leak of an interim fact finding report relating to an ongoing investigation into Google’s Android smartphone agreements.

The report does not reflect the final decision of the CCI.

Marvel sues to keep rights to Avengers character from copyright termination

Under the termination provisions of copyright law, authors or their heirs can reclaim rights once granted to publishers after waiting a statutory set period of time.

The litigation figures to focus on the “Marvel Method,” a loose collaborative working atmosphere where initial ideas were briefly discussed with artists responsible for taking care of the details. The Marvel Method has been the subject of prior litigation, almost a decade ago, in August 2013, the 2nd Circuit Court of Appeals affirmed a lower court’s ruling that determined Kirby’s heirs couldn’t wrest back his share of rights to the characters because the former Marvel freelancer had contributed his materials as a work made for hire.

The Kirby case was then petitioned up to the Supreme Court, with the late Ruth Bader Ginsburg signaling some interest in taking up the case. Marvel at the time fought hard against any high court review, and before the justices decided, the case was settled.

If the plaintiffs win, Disney expects to at least hold on to at least a share of character rights as co-owners. The studio would have to share profits with the others. Additionally, the termination provisions of copyright law only apply in the United States, allowing Disney to continue to control and profit from foreign exploitation.

Criminal complaint filed against Javed Akhtar

The complaint is against Javed Akhtar’s statement linking RSS to Taliban. Joshi, the Mumbai lawyer, heard Akhtar on a talk show and felt that the alleged statement were meant to defame and vilify the Hindu community.

Joshi’s statement read, “Statements made by the accused is well planned, thought and calculated defamatory statements to defame RSS and discourage, disparage and misguide the people who have joined RSS or who would like to join the RSS and belittle the RSS in the eyes of common public. There was a well planned motive of the accused to defame RSS.”

Joshi has even prayed for investigation for offences of defamation which are punishable under the IPC Sections 499 and 500. The complaint will be heard on October 30.

Plagiarism claim against song titled ‘Teri Mitti’

Writer Manoj Muntashir has refuted all allegations of him having copied the Teri Mitti song from ‘Kesari’ from a Pakistani song.

Muntashir claims that issues have cropped up against him due to a video made by him on the Mughals where he has used strong words against them, referring to them as glorified dacoits.

Plea moved in Delhi High Court seeking withholding of ‘The Conversion’ release

The Petitioner body has submitted that it had sent a representation to the Ministry of Information and Broadcasting and also to YouTube complaining about the biased and communal content shown in the trailer of the film and had also requested to remove the trailer and withhold the release of the of the film, but it didn’t receive any response.

The matter was heard today by a Bench of Chief Justice DN Patel and Justice Jyoti Singh however, it was adjourned as the counsel for Petitioner, appearing through video conference, was inaudible.

The Court has now adjourned the matter for hearing on October 1, 2021.

De Minimis Defense Doesn’t Protect Minimal Use of Concededly Infringing Material

Richard Bell took a photo of the Indianapolis skyline and published it on various websites. Eleven years later, he registered the photo with the US Copyright Office. Bell later conducted an online reverse image search of his photo to identify potential infringers and subsequently filed more than 100 copyright infringement lawsuits.

Bell sued Wilmott for copyright infringement in 2018, asserting that Wilmott infringed his right to “display the copyrighted work publicly” by making it accessible to the public on Wilmott’s server. The district court granted summary judgment to Wilmott on the de minimis use defense.

The Ninth Circuit rejected the district court’s finding that Wilmott’s infringement was a “technical violation” because Wilmott did not know the photo was still on its website. The Ninth Circuit also found that there was no place for an inquiry into whether there was de minimis copying because the “degree of copying” was total since the infringing work was an identical copy of the copyrighted photo.

This article was originally published on IPRMENTLAW.

Categories
Hollywood Industry

Emmy Winner Jessica Hobbs on Why Directing “The Crown” is a Royal Treat

The 73rd Emmys shined bright over the weekend with a number of fresh faces taking home a statue, including Michaela Coel accepting the Emmy for Outstanding Writing for a Limited or Anthology Series in a rousing speech for I May Destroy You. It was the first time a woman of color won the award.

The Crown director Jessica Hobbs was also among the newly enshrined during the live broadcast, winning the Outstanding Directing for a Drama Series category for the season four finale of the beloved Netflix series. The episode “War” chronicles Diana’s unraveling marriage to Prince Charles and the dichotomy of their relationship while Queen Elizabeth asks Prime Minister Margaret Thatcher to step down in a scene with such stirring intensity you could cut with a knife.

Below, Hobbs shares her insight into the episode and what makes the series so special.

There always seems to be a bit more pressure when directing a season finale. You’ve done so the last two seasons of The Crown. Do you look at them any differently or try to ignore that notion altogether?

One of the joys of directing The Crown is how self-contained each of the episodes are. Peter Morgan (creator/writer) is very encouraging about approaching each episode as if it’s a stand-alone film. Having said that, with the finales I do find that I approach them differently. The responsibility, and desire, is to complete the season for the audience in a way that delivers on the overarching themes set up in the writing.

Margaret Thatcher (GILLIAN ANDERSON). Filming Location: Wrotham Park. Photo: Des Willie/Netflix.

 

In Season 4, this was the culmination of the two challenging females that the Queen comes up against – Margaret Thatcher and Diana. In the finale, one was going to exit, permanently, and the other was preparing to start a personal war. I wanted to truthfully reflect the Queen’s discomfort in saying goodbye to Thatcher. I love the way that Olivia and Gillian played that final scene. It was disquieting in the best way.

For the very ending, I felt that isolating Diana and slowly closing in on her face would help us understand how isolated she felt at that moment. Deciding to shoot Diana like that – with the obliviousness of the Queen and the other family members around her – was a deliberate choice to catapult us into season 4. Philip felt he’d told Diana she was not the ‘center,’ but I wanted our audience to know she was the impending ‘war.’

Picture shows: Princess Diana (EMMA CORRIN). Photo by Des Willie.

 

“War” is all about power and Diana specifically sees how much impact she has on issues. How did you want to approach her People’s Princess persona in the episode?

It was very important to allow the audience to experience the sheer wattage and personal power that Diana’s natural empathy allowed her. And at the same time, as in war, there’s isolation, loneliness, and a wobble towards madness can come with it. I found it incredibly moving to show that Thatcher felt that without her job, her status as PM, she would be ‘nothing.’ The Queen won through sheer staying power. She is irreplaceable. But reflecting Diana’s need to be “seen” to have a place in the family – that competition was always going to lead to an all-out war. Diana’s connectivity with people. Her natural empathy and her need to reach out. I wanted us to reflect that– she gave the people what they wanted. A fairytale, a princess. But I also felt that with being the “People’s Princess” there was a cost. She was adored by the public and shone when surrounded by them – and that only reflected her own sense of isolation and loneliness.

The Crown S4. Picture shows: Diana Princess of Wales (EMMA CORRIN). Filming Location: Military Hostel Front, Malaga

 

PICTURE SHOWS: Queen Elizabeth II (OLIVIA COLMAN). Filming Location: Lyceum Theatre

 

What stands out about The Crown is its scale. But it’s done so in a way that isn’t gratuitous. How do you approach things visually to keep things grounded?

I love that you say that it’s not done in a way that’s gratuitous! It’s something I intensely focus on. It’s allowing the audience to experience the scale of the lives the Royal Family lead without it being self-conscious. These homes, castles, jubilees, public crowds are extraordinary to those of us who lead ordinary lives but not to our characters – to them they are just ‘work’ and ‘home.’ What I love is to continually push to find ways to allow the audience to experience these lives by keeping it visceral and building on the sensation of what it must be like to live as the Royals do. Being casual about the opulence and formalities allows you to have fun with where you take the audience.

 

Olivia Colman and Tobias Menzies in ‘The Crown.’ Courtesy Des Willie / Netflix

 

The Crown has such a fantastic cast. How do you like approaching things in order to try new things?

The Crown has a generous schedule which does provide the kind of directorial room for you to take risks and push the experience for the audience. It’s been such a gift to take one cast through two seasons and then to start an entirely new cast off in these last seasons. It’s always challenging for the new cast to walk in the shoes of those who have played the roles before them. I did find there was a joy and freedom for our cast who developed from Season 3 into Season 4.

How so?

Each of them gained confidence and surety about who they were portraying. And this also meant we could push the filming to find those magical unexpected moments of reflection. I always love shooting a little off-script, allowing a bit of emotional anarchy and surprise to find its way into the filming. It’s a huge privilege to work with a writer that encourages that kind of directorial risk-taking.

Picture shows: Priness Diana (EMMA CORRIN) and Prince Charles (JOSH O CONNOR) Photo by Ollie Upton

 

What makes the series so unique to go back to?

There’s an extraordinary team behind it who gives you incredible support. Hands down, these are the best producers I’ve ever worked with. Peter Morgan is brilliant, generous, and funny. You’re encouraged to push your individual point of view and because the scripts are muscular and sparse there’s amazing freedom in your translation of the material. I love working like this, it pushes you to be risky, expansive, and authorial – what director wouldn’t want more of that!

Featured image: LONDON, ENGLAND – SEPTEMBER 19: Jessica Hobbs celebrates winning the Emmy award for ‘Outstanding Directing for a Drama Series’, at the “The Crown” 73rd Primetime Emmys Celebration at Soho House on September 19, 2021 in London, England. (Photo by Gareth Cattermole/Getty Images)

This article was originally published on The Credits.

Categories
Copyright Industry

REVISITING SETTLED TENETS OF INDIAN COPYRIGHT LAW: ALLAHABAD HC’S REFUSAL TO STAY RELEASE OF THE FILM ‘CHEHRE’

The Allahabad High Court’s recent decision in Uday Prakash v. Anand Pandit and Anr. [FAO (D) 432/2021; Order dated 27th August 2021] was particularly illuminative with respect to certain established principles under Indian copyright law, while also shedding light on the procedural requirements in a quia timet action and applications for temporary injunctions. The Court herein was hearing an appeal from an Order of the Ld. District Judge, Ghaziabad, wherein the Plaintiff-Applicant’s application for temporary injunction on account of infringement of copyright was rejected. A summary of the brief facts followed by the Court’s findings and a brief reflection / analysis of the same is provided below:

BRIEF FACTS

The Plaintiff had instituted a suit before the District Judge, Ghaziabad, for infringement of copyright owned by the Plaintiff relating to a literary work titled ‘Highway-39’ (“Plaintiff’s Work”), which he had also gotten registered on 16.07.2007 with the Copyright Office at New Delhi under Registration No. L-28822/2007. The Plaintiff claimed to have discussed the Plaintiff’s Work with a Mr. Mazhar Karman, as he had assured the Plaintiff that he will show the Plaintiff’s Work to a few prominent producers in the film industry, which included Defendant No. 1.

The Plaintiff further claimed that, in June 2019, he came to know from ‘reliable sources in the film industry’ that Defendant No. 1 was producing a movie titled ‘Chehre’ (“Impugned Work”) which is very similar to the Plaintiff’s Work. Defendant No. 2 is the director of said movie, and was accordingly impleaded in this suit as well. The Plaintiff sent a cease-and-desist legal notice to the Defendants on 14.06.2019, asserting that the Impugned Work infringes copyright in the Plaintiff’s Work and accordingly seeking stoppage of production of the Impugned Work. However, the Defendants replied to said notice on 29.06.2019, wherein it wholly denied any copyright infringement by the Impugned Work.

It is also notable that in the Written Statement filed by the Defendants, a similar stance was adopted and it was asserted that the Plaintiff’s Work was devoid of ingenuity / originality and was merely an adaptation of the novel, ‘A Dangerous Game’, by Friedrich Durrenmatt. It was further contended that the Plaintiff’s suit was merely a quia timet action (as the Impugned Work was not to be released in February 2020, as was alleged by the Plaintiff), which was founded on unreliable sources and erroneous apprehensions.

Asides from the overarching issue of infringement of copyright in the Plaintiff’s Work, the Court in this appeal was also dealing with / revisiting the following pertinent legal issues:

  • Is the Defendant obligated to provide access to the allegedly infringing work (herein, the script of the Impugned Work) to the Plaintiff, in order to allow the latter to substantiate its claims of infringement of copyright?
  • What are the appropriate legal principles to be applied while dealing with a quia timet action, specifically when such action is purportedly instituted on the basis of tenuous apprehensions?
  • Can the Defendant be deemed to have ‘access’ to the original work on the basis of merely vague assertions to that effect?

FINDINGS OF THE COURT

At the outset, the Court reiterated the settled legal principles to ascertain whether a prima facie case for infringement of copyright, in an application for temporary injunction, is made out. Namely, the Plaintiff’s Work must be shown to be an original work, the Defendant should have had access to the same and the Impugned Work must be shown to be substantially similar to the Plaintiff’s Work. The Court then proceeded to apply this criteria to the instant factual matrix, and observed as follows:

“28. Now, the question whether a prima facie case is made out, is intrinsically connected to the cause of action regarding infringement of the copyright alleged. It is true that in order to establish a prima facie case, in an action for infringement of copyright, there have to be pleadings to establish that the literary work, of which the plaintiff claims infringement by the defendants should be shown to be the plaintiff’s original literary work, in the sense that the work is at least original rendition of a known theme with the plaintiff producing it, employing his knowledge, labour and skill. In addition, it has also to be established that the defendant had access to the plaintiff’s work, and that the offending script is substantially similar to the plaintiff’s script. Here, there is no doubt about one fact that the plaintiff holds a copyrighted work. But beyond that, the pleadings are utterly vague. There is an assertion to the effect that the plaintiff discussed the copyrighted work with Mazhar Kamran, but it does not say that he showed the copyrighted work to Kamran or handed it over to him. Therefore, there is a very vague case pleaded about the intermediary who could have possibly palmed off the copyrighted work to the defendants, on coming to know of its contents. A mere discussion of a work involving intellectual intricacies with another is not a case enough to impute that other with knowledge of its contents; and knowledge good enough to share it with a third party. The pleadings, therefore, are woefully vague about the access of the defendants to the copyrighted work.

29. The next assertion in the plaint that the plaintiff was given information about defendant no. 1 producing the feature film, that is essentially similar to the copyrighted work, is also utterly vague. It is set out in Paragraph no.5 of the plaint. The plaintiff does not name the source through which he came to know that the feature film is based on a script that is a plagiarized version of the copyrighted work. The terms employed in the relevant pleadings are “reliable source/sources from the film industry” which can hardly go to make for a prima facie case or a triable case for the grant of a temporary injunction in an action for infringement of copyright.

30. There is another issue which is required to be addressed. It is connected to the fundamental issue about whether the plaintiff at all had a cause of action to proceed for infringement with the kind of allegations that find place in the plaint. Prima facie, the plaintiff never had occasion to see what the contents of the script leading to the feature film were, the movie having not been released as yet and certainly not until time the suit was filed. The plaintiff has inferred that it is a copy of his work on the basis of some hearsay, that he has expressed through vague allegations in the plaint, describing them as reliable sources from the film industry. The entire action is, therefore, based on the plaintiff’s conjecture. This cannot be the basis of an action for infringement of copyright.”

In conjunction with the aforementioned observations, the Court also stated that in a quia timet action, the evidence about threat of injury should be tangible and concrete and cannot be based off bald assertions and hypothetical facts. That is to say, the burden of proof in a quia timet action is much heavier than in a case where an actual injury has already occurred. Although the Plaintiff tried to rebut the Court’s findings in this regard by asserting that the potential threat of injury has become increasingly potent in light of the impending release of the Impugned Work, the Court rebuffed this contention as the Plaintiff had still failed to make out a prima facie case on the similarity between the two works. It was reiterated herein by the Court that the Plaintiff’s case was built on mere hearsay and conjecture, and such vague pleadings do not meet the requisite threshold to make out a prima facie case of infringement of copyright.

At this juncture, the Court also dealt with the Plaintiff’s contention that its failure to further substantiate its pleadings must be attributed to the Defendant’s refusal to provide access to the script of the Impugned Work, as in the absence of proper access to said script the Plaintiff could not provide an in-depth comparison of the alleged similarities between the two works. The Court opined that such refusal on the part of the Defendant was an ancillary issue, with the suit more likely to fail or succeed on the questions of whether the Defendant had access to the Plaintiff’s Work in the first place and whether an ordinary person upon comparing the two works would conclude that the latter work is a copy of the former. Relevant observations in this regard are reproduced below:

“39. Therefore, the question that is required to be addressed is not about the burden of proof, or so to speak, the defendants’ burden as the plaintiff claims, once they (the defendants) opposed the application for discovery to disclose the contents of the script that is the basis of the feature film, but whether the plaintiff has a triable case pleaded on the parameters of an action for infringement. It has already been held that there is absolutely vague pleading to show that the defendant could have had access to the copyrighted work. The Court in Mansoob Haider no doubt, has said that failing on the point of access, the plaintiff can still succeed, upon showing that on a comparison of the two works, an ordinary person would inevitably conclude that defendants had copied the plaintiff’s work. There is some doubt whether access has to be necessarily proved, but assuming that it is required to be proved, it would still be necessary for the plaintiff to plead and show that an ordinary person, in comparing the copyrighted work and the feature film, would inevitably come to the conclusion that the latter is a copy of the former.”

Pertinently, the Defendant had agreed to place upon the copy of its script before the Court (although the Plaintiff was still denied access to the same). Therefore, the Court was able to undertake a comprehensive assessment of the two works and to compare similarities (if any) between these works. Upon doing so, the Court agreed with the Defendant’s contention that the works are inspired by the novel, ‘A Dangerous Game’, which thus constituted the underlying idea behind both works. However, as per well-settled principles copyright law, what is material is the treatment / expression of this idea in the two works. Keeping this in mind, the Court finally found that the common theme / idea behind the two works has been expressed in a materially different and distinct manner, and thereby no case for copyright infringement can be made out at this interim stage. The Court did however expressly remark that its observations pertain to the temporary injunction alone, and a final expression on the similarities of the two works could only be delivered after trial has been conducted. The Court also briefly remarked on the potential remedies to be provided to the Plaintiff, in case he succeeds in trial, and also directed the lower court to expedite trial in the instant suit. The Court’s final observations are reproduced below:

“54. There is, thus, prima facie a materially different and distinctive development and treatment of the same theme in both the scripts. In the prima facie opinion of this Court, there is, apart from the fundamentals of the basic theme that appear to have come from a common source, no such distinctive feature in the copyrighted version that have been prima facie plagiarized. It must be remarked here that whatever comparison has been done, is not, in any manner, a final expression of opinion on merits about the distinctive similarities or the dissimilarities. That is something that has to await trial, where wholesome evidence would now be led. All the remarks here are limited to the decision of the temporary injunction matter and nothing more.

55. Now, a still further issue that is required to be examined is what would happen if at the hearing, the plaintiff were to ultimately succeed. Would damages alone be recompense enough? There is relief sought by way of a decree for rendition of accounts of the advance amount received by the defendants from the distribution companies, television channels, OTT platforms, television networks by selling distribution rights/ streaming rights of the feature film, infringing the plaintiff’s copyright. The said decree would entitle the plaintiff, if he succeeds, to proportionate proceeds on account, as may be determined that the film earns. But, apart from that, if the copyright is ultimately held to be infringed at the trial, monetary compensation may not be recompense enough. It is, therefore, to be ordered that if the plaintiff succeeds, all further displays of the feature film shall have to carry an acknowledgment, suitably to be displayed that the movie is based on the copyrighted work, which is the plaintiff’s authorship. Also, the trial of the suit is to be expedited. Since the learned District Judge is hearing the suit himself, he will proceed with the suit, fixing one date every week and endeavour to conclude the trial within four months.”

 CONCLUDING REMARKS

The Allahabad High Court’s decision is certainly a well-reasoned and comprehensive one, which delves extensively into settled tenets of Indian copyright law and reinforces the same. The idea-expression dichotomy drawn out in the instant case is in line with the findings of the Supreme Court in its seminal judgment in R.G. Anand v. Delux Films and Ors. [(1978) 4 SCC 118], and the Court’s detailed breakdown of the similarities (or lack thereof) between the two works is premised upon this dichotomy as well, on the basis of which it ascertained that a prima facie case has not been made out by the Plaintiff.

Additionally, the Court’s decision to not draw an adverse inference against the Defendant’s refusal to produce its script for the Plaintiff’s perusal is also prudent in light of this particular factual matrix, as there was no cause of action made out in the Plaintiff’s vague pleadings which could have been relied upon to compel the Defendant to disclose the script of its Impugned Work (which would have certainly had adverse commercial implications for the Defendants, given the massive scale of the Impugned Work and the numerous stakeholders involved in the production and distribution of such feature films). This aspect of the decision was also intrinsically linked with the Plaintiff’s failure to prove that the Defendant had access to the Plaintiff’s Work, thereby underscoring the importance of proving ‘access’ to an original work in a suit for infringement of copyright.

All-in-all, this decision of the Allahabad High Court helps fortify settled tenets of Indian copyright law while also providing further clarity on the relevant factors to be accounted for by a court of law while dealing with alleged copyright infringement (at the interim stage) in a quia timet action.

This article was originally published on IPRMENTLAW.

Categories
Copyright

Some Reflections on What Can—and Cannot—Be Protected by Copyright

My wife was flexing her wrist, extending her forefinger and manipulating her thumb, following the instructions on the sheet in front of her that the physiotherapist had provided. She (my wife that is) had broken her wrist a few weeks earlier, in an unfortunate fall. With neither of us having ever broken a bone before, it brought home the reality of how challenging recovery from even a relatively minor break can be. Once the operation has taken place, and later when the cast is removed, you start to think you are out of the woods. But then the hard work—the regular and constant physiotherapy and exercise to restore use of the limb—begins. In this instance therapy consisted of ultrasound, massage and personal exercise and manipulation at home, following a set of illustrations and exercises she was given at the clinic.

Having a sharp eye for all things related to copyright, I immediately spotted the “©Island Hand Therapy Clinic 2010” on the instruction sheet. There is nothing protectable about the bone or ligament structure in a person’s wrist any more than the knowledge of how to restore movement and circulation to a limb. So how could this set of instructions outlining and illustrating a sequence of exercises be subject to copyright protection?

This example is a good illustration of the distinction in copyright law between an “idea” and the “expression of an idea”, with the former not subject to copyright while the latter could qualify. The instructions, illustrations and sequence of these specific exercises had all been developed by this clinic for the exclusive benefit of its clients and are the clinic’s particular expression of the idea of wrist manipulation to regain movement. They form part of its intellectual property and are a benefit provided to clients who pay to use the services of the clinic. The exercises needed to regain movement in a limb cannot be copyrighted but the explanations and illustrations, when put together, form an expression of the idea.

Assertion of copyright is simple and straightforward (one of the major advantages of this form of intellectual property, compared to the more costly and legalistic processes required to register a trademark or secure a patent, for example). The ubiquitous © sign is not even required, although to affix it is a good idea as this is a conscious assertion of copyright. In Canada, a copyright can be registered for a modest fee, but it is not necessary to do so. In the US, a copyright does not have to be registered with the US Copyright Office, but registration is necessary if a legal case is to be brought against an alleged infringer.

Although in most countries a work does not have to be registered to be eligible for copyright protection, some form of “fixation” is required for it to constitute a copyrightable work. (A musical score, a photograph, a printed facsimile, for example). Fixation can be difficult to determine at times, as I discussed in an earlier blog post “My Fixation with Fixation”.Recently a Chinese court has extended the concept of fixation even further, ruling that the arrangement of a water fountain display to music can be protected by copyright, notwithstanding the reality that no two performances could be identical (owing to factors such as weather and light). The court dealt with the issue of fixation by virtue of the fact that the water and music show were replicable because of the design of the devices governing the directions and timing of the spray, and the programming of the music.

Most copyrighted works are not infringed, and most minor infringement seems to go unchallenged. It depends on the circumstances. It would be unlikely that the hand clinic would take any action against a patient who unthinkingly shared her physio exercises with a friend who was also having wrist problems. But they might object if another clinic appropriated, copied and distributed the exercises to their own patients. That little © at the bottom of the page is a good reminder and an insurance policy.

The distinction between an idea and its expression is a concept that I explored in an earlier blog “Copyright on the Rocks”.It is something that jurists have grappled with over many years as interpretations of what is subject to copyright evolved. Today, it is widely accepted that a procedure, process, system, method of operation, concept, principle, or discovery (to quote the US Copyright Act) are not subject to copyright, nor are facts, but that wasn’t always the case.

In the 19th century, some newspapers in England pushed to assert copyright over the news that they generated, arguing that the considerable effort and expense they went to in collecting the news entitled them to protection against copying, at least for a specified period of time. For example, if TheTimes (of London) paid a correspondent to report on events abroad (a war for example), and then invested in the costs of transmission (by telegraph) of the latest news, why should rival newspapers be simply allowed to “cut and paste” the news that the Times had generated? Widespread copying of the news in the morning papers by the evening papers, and literally “cutting and pasting” columns of material into subsequent editions, was a common practice in the early days of journalism (and widely accepted).

In a famous case in the 1890’s known as Walter v Steinkopff (documented in Prof. Will Slauter’s book, “Who Owns the News: A History of Copyright), The Times sued another journal, the St. James Gazette, for copyright infringement for reprinting both part of a story by Rudyard Kipling and several news paragraphs. The Gazette admitted infringement with respect to the literary excerpts, but the case turned on the news paragraphs. The Times had taken the necessary steps to ensure payment to the journalist and had arranged assignment of the reporter’s copyright to the newspaper. The case was heard by Sir Ford North who ruled that even if cutting and pasting was a common practice in the British newspaper business at the time, the Times had not expressly consented to it. Moreover, the Times had complied with the legal provisions regarding establishment of copyright. However, North pressed the plaintiffs as to what exactly they thought copyright should protect. To quote from Slauter (p.175);

If The Times published a telegram announcing the death of a foreign leader, would other papers be prohibited from publishing the same news unless they obtained their own telegram? After some back and forth, counsel for The Times was willing to concede that other papers could not copy The Times’s report verbatim but that they could restate the facts.”

North summarized by noting that there is no copyright in news, but there is or may be copyright in the particular forms of language or modes of expression by which information is conveyed. In other words, facts (news) by themselves cannot be copyrighted, although the form of news articles may be subject to copyright protection. The same issue was settled in the US in a precedent setting case in 1921. (Chicago Record-Herald Co. v Tribune Ass’n)

And then there is the “merger doctrine” to consider. This occurs when there are only limited ways to express an idea, where the expression merges with the idea itself and is therefore not protected. The most recent example of what was probably a merger doctrine case, although it was not decided as such, was the US Supreme Court decision on Google v Oracle. Google had copied Oracle’s Java APIs (application programming interface) or source code (aka “declaring code”), without payment or permission, in order to facilitate programmers writing programs for the Android platform, which uses Java code. Google argued that the APIs, which provide a kind of underlying framework for writing computer code, (a so-called “building block”) were not copyrightable as they were basic utilitarian functions. Initially the court agreed but this ruling was overturned on appeal. The case was further appealed to the US Supreme Court where Google also argued that even if the APIs were subject to copyright, there was no infringement because Google’s use was fair based primarily on the fact that its subsequent use of the APIs led to new works and was thus transformative. (This is a gross oversimplification of the case but outlines the basic elements. A more detailed explanation can be found here).

In the end, the Supreme Court did not rule on whether the APIs were subject to copyright protection—which was the essence of the case. Instead, it focused on the fair use argument, and concluded that Google’s use was fair. This is a controversial finding as it potentially opens the door to other arguments that an unauthorized use of a copyrighted work that leads to a transformative product or service is legal under the US fair use doctrine. The Supreme Court tried to ring-fence its decision by stating that its ruling applied only narrowly to “declaring” computer code, but others have already been quick to try to jump on this bandwagon. Ultimately, the real question in Google v Oracle was whether the underlying code—which some have compared to a QWERTY keyboard—was copyrightable because of the limited ways in which computer code can be written.

This landmark case is a long way from my wife’s wrist exercise instructions, which shows how quickly one can go down the rabbit hole when discussing copyright issues. However, the principle of what can be copyrighted, and what cannot—based on the distinction between ideas and facts on the one hand, and the original expression of ideas and facts on the other—is a fundamental if sometimes blurred principle.

I am not sure whether I have made the distinction any clearer or simply blurred it more. But if you are in any doubt, please note the © symbol below. After all it is fixed (you’re reading it); it is my expression of the idea of what is and is not subject to copyright and it is original. Who else in history has connected Google v Oracle with Walter v Steinkopff (1892) with a Chinese court’s copyright finding on a water fountain display with my wife’s hand clinic physiotherapy instructions? It qualifies for the big ©! And I’m pretty confident that no-one is going to challenge my assertion of copyright.

This article was originally published on Hugh Stephens Blog.