By Prathiba M.Singh*
In a landmark Judgment in the area of copyright, the Indian Supreme Court has delivered its Judgment in relation to copyright in copy-edited text of Judgments and copyright in derivative works.
The question arose on a petition filed by the publisher of the Law Journal “Supreme Court Cases”. The case of the Journal was that though the text of Supreme Court Judgments is in public domain the various editorial inputs which are incorporated into the text, viz., the copy-edited text of the Judgment is copyrightable. The issue was crystallized by the Hon’ble Supreme Court of India as follows:
13. ...The question, therefore, is whether by introducing certain inputs in a Judgment delivered by a court it becomes “original copy-edited Judgment” and the person or authority or company who did so could claim to have embodied the originality in the said Judgment and the Judgment takes the colour of original Judgment having a copyright therein of its publisher.
The Hon’ble Supreme Court discussed the aspects relating to originality, creativity, sweat of the brow, skill, labour and capital etc. The Hon’ble Supreme Court also reviewed a catena of Judgments in the area of copyright including Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. [1964 (1) WLR 273], University of London Press Limited v. University of Tutorial Press Limited [1916 (2) Ch 601], which were relied upon by the plaintiff. The Hon’ble Court thereafter considered, on behalf of the defendants the distinction between a law report and a law journal. It then reviewed the decision of the US Supreme Court in Feist Publications Inc. v. Rural Telephone Service Co. Inc. [18 USPQ 2d 1275], Matthew Bender & Co., Inc. v. West Publishing Co. [158 F.3d 674], and finally the Judgment of the Canadian Supreme Court in CCH Canadian Ltd. v. Law Society of Upper Canada [2004 (1) SCR 339 (Canada)]. The Hon’ble Supreme Court considered the test laid down by FEIST that for a work to qualify as being an “original work” apart from being an independent creation, it should also possess a minimal degree of creativity. FEIST had rejected the doctrine of mere “sweat of the brow”. This test laid down in FEIST was followed by the Second Circuit in Matthew Bender wherein it was held that applying FEIST, the inputs incorporated into the text of a Judgment lack the minimal degree of creativity.
The Hon’ble Supreme Court of India also reviewed that Judgment of the Canadian Supreme Court which compared the various doctrines including “sweat of the brow” and “creativity test”. The Canadian Supreme Court had drawn the middle path between the sweat of the brow doctrine and the creativity doctrine.
The Indian Supreme Court in its Judgment, while partially modifying the Judgment of the ld. Single Judge, has accepted the principles laid down by the Canadian Supreme Court in relation to copyright in Judgments. The relevant portion of the Judgment of the Indian Supreme Court hold that Judgments of the courts are in public domain, is reproduced below:
38. … The judicial pronouncements of the Apex Court would be in the public domain and its reproduction of publication would not infringe the copyright. That being the position, the copy-edited Judgments would not satisfy the copyright merely by establishing amount of skill, labour and capital put in the inputs of the copy-edited Judgments and the original or innovative thoughts for the creativity are completely excluded. Accordingly, original or innovative thoughts are necessary to establish copyright in the author’s work. The principle where there is common source the person relying on it must prove that he actually went to the common source from where he borrowed the material, employing his own skill, labour and brain and he did not copy, would not apply to the Judgments of the courts because there is no copyright in the Judgments of the court, unless so made by the court itself… On the face of the provisions of the Indian Copyright Act, 1957, we think that the principle laid down by the Canadian Court would be applicable in copyright of the Judgments of the Apex Court… The derivative work produced by the author must have some distinguishable features and flavour to raw text of the Judgments delivered by the court. The trivial variation or inputs put in the Judgment would not satisfy the test of copyright of an author…
40. The aforesaid inputs put by the appellants in the Judgments would have had a copyright had we accepted the principle that any one who by his or her own skill and labour creates an original work of whatever character, shall enjoy an exclusive right to copy that work and no one else would be permitted to reap the crop what the copyright owner had sown. No doubt the appellants have collected the material and improved the readability of the Judgment by putting inputs in the original text of the Judgment by considerable labour and arranged it in their own style, but that does not give the flavour of minimum requirement of creativity. The exercise of the skill and Judgment required to produce the work is trivial and is on account of the labour and the capital invested and could be characterized as purely a work which has been brought about by putting some amount of labour by the appellants. Although for establishing a copyright, the creativity standard applies is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required… In our view, the aforesaid inputs put by the appellants in the copy-edited Judgments do not touch the standard of creativity required for the copyright…
Thus, in so far as India is concerned, the following are the principles laid down by the Hon’ble Supreme Court in relation to Copyright in derivative works;
(a) Judgments are works in public domain;
(b) Reproduction of a Judgment is not infringement of copyright;
(c) The edited form of the Judgment does not satisfy the test of copyright;
(d) Original or innovative thoughts are necessary to establish copyright;
(e) When works are in public domain there cannot be insistence on relying only on the common source i.e., a certified copy of the Judgment;
(f) A derivative work, in order to enjoy copyright, ought to possess a flavour of creativity;
(g) The principles laid down by the Canadian Supreme Court would apply to texts of Judgments in India;
(h) To claim copyright in a compilation, apart from skill and Judgment some amount of creativity and novelty would be required which may even be minimal;
(i) Trivial variations do not satisfy the test of copyright;
(j) The copy-edited text of SCC, though has considerable labour and unique arrangement but does not have the flavour of minimum requirement of creativity;
(k) The selections of SCC are typical but the same lack minimal creativity;
(l) The same does not display originality;
After having laid down the above principles, the Hon’ble Supreme Court protected two aspects of the editing incorporated by SCC, viz., paragraph references and Judgment of editors regarding opinions expressed by judges by usage of terminology - “concurring”, “dissenting” etc.
This Judgment is of enormous significance, inasmuch as this is the first Judgment of the Hon’ble Supreme Court on derivative works and works which are in public domain. This Judgment comes after a gap of 30 years after the first Judgment of the Hon’ble Supreme Court in the 1970s in the area of Copyright. The view of the Indian Supreme Court seems to be consistent with the view taken in other common law countries, especially that of Canada. Judgments having been written by Hon’ble Judges, are meant to be disseminated to the widest section of the population and any copyright protection on the ground of copy-editing would have created shackles and multiple monopolies in favour of different publishers. In order to ensure the larger dissemination of Judgments of courts, the Hon’ble Supreme
Court has clearly laid down that the text of the Judgments are in public domain. It is not necessary for everyone who wishes to reproduce the text of a Judgment to go to the original source, i.e., the certified copy issued by the court. Thus, the entire purpose and intention behind the Legislature having put Judgments as works in public domain has been fully upheld and satisfied by the instant Judgment. The test for originality in derivative works having been clearly laid down, the Judgment would serve as a guiding force in the area of copyrights.
Copyright © Prathiba M.Singh
Prathiba M.Singh is LL.M. (Cantab), Patent & Trade Mark Attorney at Singh & Singh Advocates. She can be contacted at prathiba@singhandsingh.com
