COPYRIGHT MADE EASY
CME [Student Series]
LW 1-15 Meaning of “Original ” under Copyright laws.
ORIGINAL AND CREATIVE AUTHORSHIP
The most concerned subject for every author is that the work they have created is ” ORIGINAL” and that should be protected from infringers. Every now and then litigants approach the Courts and now in recent time its witnessed more.
Let’s analyse what’s the legal standpoint on the topic of “ORIGINAL” under the Copyright statute.
Essentially, the essence of Copyright is originality but purposely the term “original” is left undefined by the Copyright Act 1957 and for that matter across the world the term “original” is not defined under any Copyright legislation for literary work. However ,under the UK 1988 Copyright Act – database is the only work to have its own Definition of originality when database was introduced as a new sub-category of a literary work and databases being treated as separate type of literary work under British Copyright law.
In India, as given under Section 13 (a) of Copyright Act 1957 , Copyright subsists throughout India in the “original” work of authorship in literary , dramatic , musical and artistic work but the term “Original” is not used for Cinematographic and sound recording work. As per sub-section (b) & (c) of Section 13 , the word original is excluded for Cinematograph films and sound recordings respectively (which are derivative rights). Please read section 13 (a) carefully and it’s given herein below :
Section 13 (a) of Copyright Act 1957
Work in which Copyright subsists –
- Subject to the provisions of this section and other provisions of this Act , Copyright shall subsist throughout India in the following classes of works , that is to say,-
- original literary , dramatic , musical and artistic works;
- Cinematographic films ; and
- * [ sound recording ]
before 1994 Amendment it was ” record”.
Therefore the meaning of the term “authors” and “originality” is of fundamental importance in the law of Copyright and authorship is intimately connected to originality. On legal standpoint for literary work it refers to origin, originator or maker in connection to literary work and another important point that emerge is on “independent creation” which implies that for the requirement of literary authorship , the copyrighted work be created by human authorship, specifically excluding the work created by automated or mechanical or computer generated product.
From above it follows that one cannot be an author unless he originated something to claim copyright protection and on judicious reading of Section 13 or any other section(s) in Copyright Act , legislation has not emphasised for any kind of striking uniqueness , ingenuity or novelty to prove originality.
Therefore, with the given perspective nothing prevents a valid claim of copyright on two or more substantial similar works so long as they were independently created. What is required is that the work should originate as independently created and it must not be directly copied from another work. Therefore, if defendant is able to counter argue that it’s the original skill or labour that have taken place in execution of the work then perhaps no injunction can be granted because Copyright protection is given to works as defined under the Copyright Act and not on thoughts or ideas. It’s a surgical operation , which depends on case to case basis by submitting the facts in position.
Interestingly, as per Indian Copyright legislation, the ‘originality’ principle is not applicable to Cinematographic film and sound recording but copyright subsist for both the work . Reading Sub- section (3), it clearly provides that Copyright subsist in cinematographic and sound recording but Copyright will not subsist in Cinematographic work, if it’s not substantially infringed. Which means for cinematographic film work , the infringement should be “substantial” then only Copyright will not subsist but for sound recording work , requirement of “substantial” is excluded! Hence, during litigations while demarcating the two derivative works ( Cinematographic work and sound recording work ) the words “substantial” and “original” are very important.
Given herein-below the provisions of sub-section (3) of Section 13 of Copyright Act 1957.
Sub-section (3) :
Copyright shall not subsist –
- in any cinematographic film if a substantial part of the film is an infringement of the copyright in any other work ;
- In any [sound recording ] made in respect of literary, dramatical or musical work , if in making the [ sound recording ] Copyright in such work has been infringed.
Next crucial point is to weigh the ” quantum of originality” in creative authorship which will be covered in our next article LW 1-16.