Copyright law protects expressions of ideas

Copyright is a form of intellectual property protection granted to the creators of original works of authorship such as literary works (including computer programs, tables and compilations including computer databases which may be expressed in words, codes, and schemes or in any other form, including a machine readable medium), dramatic, musical and artistic works, cinematographic films and sound recordings.

Copyright law protects expressions of ideas rather than the ideas themselves. Under section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. For example, books, computer programs are protected under the Act as literary works.

Copyright refers to a bundle of exclusive rights vested in the owner of copyright by virtue of Section 14 of the Act. These rights can be exercised only by the owner of copyright or by any other person who is duly licensed in this regard by the owner of copyright. These rights include the right of adaptation, right of reproduction, right of publication, right to make translations, communication to public etc.

Copyright protection is conferred on all Original literary, artistic, musical or dramatic, cinematograph and sound recording works. Original means, that the work has not been copied from any other source. Copyright protection commences the moment a work is created, and its registration is optional. However it is always advisable to obtain a registration for a better protection. Copyright registration does not confer any rights and is merely a prima facie proof of an entry in respect of the work in the Copyright Register maintained by the Registrar of Copyrights.

As per Section 17 of the Act, the author or creator of the work is the first owner of copyright. An exception to this rule is that, the employer becomes the owner of copyright in circumstances where the employee creates a work in the course of and scope of employment.

Copyright registration is invaluable to a copyright holder who wishes to take a civil or criminal action against the infringer. Registration formalities are simple and the paperwork is least. In case, the work has been created by a person other than employee, it would be necessary to file with the application, a copy of the assignment deed.

Here the topic under research is the ‘Copyright in games and its rules’. The researcher here during the course of his research would be confined to case of Mattle Inc and Ors v Mr. Jayant Aggarwal and ors. [1] , and the analysis of the same. However, before dealing with the issue in had it is essential to have an understanding of the basic concepts pertaining to copyright law. This would be essential in analysing the judgment and the concept of copyright in games.

CHAPTER 1: BASICS OF COPY RIGHT

The copyright law essentially has twin objectives. It gives incentive to the author of the work and at the same time to give accesses to the public in general. The whole regime of the copyright law aims at striking the balance. The existence of a copyright in a particular work restricts the uses that can be made of the work. To claim copyright the there are creation criteria which needs to be fulfilled. One of the most important criteria is that of originality. Originality does not mean that work should be a novel or unique work but what is required is that work should originate form the author. It should not be copied. The test of originality was laid down in the land mark English case of University of London Press Limited v University Tutorial Press [2] . The court here said that while dealing with he copyright the courts would not be concerned with the originality of idea, rather what is protected is originality of expression. Earlier it was sufficient that some body has invested labour, skill and capital in a work to claim copyright the test was ‘sweat of the brow’. The test of originality developed by the court in the case of University of London Press [3] was made more stringent by the decision of the US court in the case of Feist Publication Inc v Rural Telephone Service Co. Inc. [4] , brief facts of the case was that Rural telephone service co. published certain telephone directory consisting of white pages and yellow pages. To obtain white pages the Feist publication approached a number of companies so that it could develop its area wide directory. Of all the operators only Rural refused. Thereafter Feist copied the white pages from the Rural Company’s. The Rural telephone company challenged this as the violation of their copyright. Dealing with the case the court dealt with the issue of originality and said that it is a sine qua non of copyright protection. The court found that originality as the term used means that the work was created by the author. Here the court went on to hold that the original objective of the copyright law is not to reward the labour of the author, rather it is the promote progress of useful arts and science. The court rejected the ‘Sweat of the Brow’ test. The court was of the view that the doctrine flouted the basic copyright principle and it creates monopoly in public domain materials without necessary justifications of protecting and encouraging the creation of writings.

However, neither of the two tests was found to be completely satisfactory. The Supreme court of Canada noticed the two competing view occupying the field and in the case of CCH Canadian Ltd. v Law Society of Upper Canada [5] . The court found that to be original under the copyright act the work must originate from author and not copied from another work. It must be product of ones labour skill and judgment. The exercise of skill and judgment should not be that trivial that it could be characterized as purely mechanical work. Talking bout creativity the court was of the opinion that creative works by definition are original and protected by copyright. However this does not mean that creativity is required in order to render a work original. The court viewed the sweat of brow as too low a standard whereas the creativity is too high a standard. The Canadian SC was of the view that the author must produce a material with exercise of his skill and judgment which may not be creativity in the sense that it is not novel or unique but at the same time it should not be mere product labour and capital. The Indian SC in the case of Eastern Book Co. v D.B. Modak [6] followed the standard laid down in CCH Canada, and held that skill and judgment are the requisite test for granting copyright. The test laid down by the court in the Eastern book company case of ‘Skill and Judgment’ was followed by the Delhi HC in the Narendra Publishing House and ors [7] here also court striking the balance resorted to the test of skill and judgment.

Related with the concept of originality is the idea -expression dichotomy. It is a basic rule of copyright law that where an expression is so intrinsically linked with an idea that there is no other way of expressing it then there cannot be copyright on that expression. What copyright protects is the expression and not the idea. There cannot be exclusivity over the idea of an author. This proposition has been very well established by the American case of Baker v Salden [8] .

Another important question is determination of the fact as to who is owner of a copyright. Indian copyright act deals with this issue under section 17. According to that section author of the work is the first owner of the copyright. But if the author is in the employment of a proprietor of a newspaper, periodicals etc. under a service contract or make a work for publication in a newspaper etc, and then the employer will be the first owner only for the purpose of its publication/reproduction unless a specific provision to the contrary is specified in the Contract. For other purposes the author will be the first owner. There was a detailed discussion on the issue in the case of University of London Press Limited v University Tutorial Press [9] . The courts dealt with the contract of service and the contract for service. In a contract of service a servant is under the direct in and control of the master. The servant has to work under the command of hem aster and do the work in the manner specified. Where as in a contract for service there is no direct in and control of the servant. He is to do work in his own way. So, in such a work the copyright vests with the author of the work unless there is a contract to the contrary.

Registration of copyright is another important factor. The author or publisher of any work or the owner of the copyright in any work may apply to the Registrar of Copyright in prescribed form, accompanied by due fees, to enter the particulars of the work under the Register of Copyrights. The Registrar, after holding such enquiry as he deems fit, may enter the particulars of the work in the register. There is provision for correction of entries in the register, or rectification of the Register. Every entry mode in the Register, or any correction or rectification is required to be published by the Registrar in the official Gazette. Registration confers a bundle of rights in relation to the copyright. However, it is not necessary to register the work for copyright. There is nothing in the Act, which makes registration of copyright as a precondition for availing of the remedies for infringement. Registration only provides prima facie evidence of particulars entered, without the necessity of further proof by way of production of the original.

Chapter 2 : Mattel Inc. and ors. v. Jayant Kumar and ors.

This is the most important case in India dealing with the issue of copyright ability of the games and its rules. It is essential to state the facts of the case in brief. The plaintiffs’ here were the company incorporated in USA, having fully owned subsidiaries in UK and India and were one of the largest toy manufacturing companies. One of the most important games developed by the plaintiffs and having world wide acknowledgement was ‘scrabble’. The plaintiffs also develop similar games in the name of junior scrabble etc. the plaintiffs own trademark in the game since 1948. They have copyright in India also. World wide competitions take place of the game based on the rules developed by the plaintiffs. Plaintiffs also license various companies to use their games. The plaintiffs claim copy right in the board of the games as artistic work under section 2(c) and upon the rules of the game under section 2(o). The defendants in the present case are partners in a IT solution firm. The plaintiffs allege that the defendants have launched an online version of the game. They are alleged to have violated the plaintiff’s trade mark, and are accused to be guilty of offence of passing off and violation of plaintiff’s copyright. We will here be confined for the purpose of our research to the copyright infringement and the response of the court to the same.

It was the case of the plaintiff’s that the defendants have violated their copyright in designs of the board. It was contended by the plaintiffs that the defendants have copied their unique design.

Dealing with the plaintiff contentions relating to copyright the court looked into the idea-expression dichotomy. The court refereed to the case of Baker v Salden [10] and stated the [11] 

“In the realm of copyright law the doctrine of merger postulates that were the idea and expression are inextricably connected, it would not possible to distinguish between two. In other words, the expression should be such that it is the idea, and vice-versa, resulting in an inseparable merger of the two. Applying this doctrine courts have refused to protect (through copyright) the expression of an idea, which can be expressed only in a very limited manner, because doing so would confer monopoly on the ides itself."

Discussing the concept of copyright in games and its rules the courts were in agreement with the decision of US court in Allen v Academic Games League of Am. [12] In the present case the plaintiff claimed that the rules developed by the defendants for the games developed by him violated his copyright. Herein the court rejected the claim of the plaintiff. The court was of the view that the idea involved in an expression can be copied as long as the copyrighted expression is not totally appropriated. So where idea-expression merges it is not possible give protection to the idea. This very often happens in the case of factual situation, where there is very limited scope of expression. Referring to the earlier cases the court stated [13] 

“Here, Allen has not shown that it is possible to distinguish the expression of the rules of his game manuals from the idea of the rules themselves. Thus, the doctrine of merger applies and although Allen may be entitled to copyright protection for the physical form of his games, he is not afforded protection for the premises or ideas underlying those games. To hold otherwise would give Allen a monopoly on such commonplace ideas as a simple rule on how youngsters should play their games."

Dealing with the issue copyright in the design of the board the court went into the discussion of originality as developed in due course of time. The court referred to the decision in the Eastern Book Company, and how the Supreme Court following University London and Feist Publication, shifted its stand from Sweat of the brow to modicum of creativity. Finally the SC adopted the line of CCH Canada Ltd. and took the middle path of skill and judgment. Here the court found the applying the originality and doctrine of merger that the board design does not fulfill the requirement of granting copyright. The court was of the view that the ratio of the Allen case was squarely covering the issue at hand and court agreed to the proposition put up there. In the words of the J. Ravindra Bhatt [14] 

“Even otherwise, the creative expression, if any is minimalistic not to warrant copyright protection. Furthermore, and most importantly, the application of the doctrine of merger would mean that the colour scheme on such a board can be expressed only in a limited number of ways; if the plaintiffs arrangement were to be avoided, it is not known whether the idea of such a word game could be played at all."

CONCLUSION