ISSUES RELATING TO THE COPYRIGHT INFRINGEMENT AND TEST OF SUBSTANTIAL SIMILARITY
Author: Priyanshu Agarwal, pursuing LLM from Faculty of Law, Jamia Millia Islamia, New Delhi.
INTELLECTUAL PROPERTY LAWS IN INDIA
Intellectual property allows people to own their creative products and innovations in the same way as they can own any physical or tangible property. The rules regarding the protection and promotion of Intellectual Property in India are well established at diverse levels including statutory, administrative and judicial. India has ratified the WTO and is a signatory country of the TRIPS Agreement which came into force in 1995. It lays down basic standards for the protection of intellectual property rights in member countries for the promotion of trade among the member countries.
Due to Globalisation and changes in the scenario of the market, which means the change in the pattern of demand of consumers and producers. Businesses not only have to think about how to create and provide protection to Intellectual Property but were to create Intellectual Property to maximise the rewards and minimise the tax liability. The transferring of IP can be created in one country, protected in another, and used in yet another country or countries.
SCOPE AND OBJECTIVE OF COPYRIGHT IN INDIA
The objective behind the introduction of copyright is to protect the “literary and artistic work” from their misuse, provide the owner with an exclusive right to transcribe, translate and recreate his authentic work and also the right to gain monetary benefits from his work. Along with these rights, copyright promotes the idea of creativity in society as the owner will have this faith that he/she can own and take benefits from his/her piece of art/literature. The term “literaryand artistic work” encompasses various forms of creativity, such as fiction and non-fiction writings; including scientific, technical texts; computer programs and original databases; lyrics and music; works of fine arts(including sketch, paintings and designs); photographs and other forms of audio-visual work. Seeing the diverse nature of literature and artistic work, various domestic laws and international conventions came into existence. If we look into the international realm of copyright then TRIPS and Berne Convention of 1971 are quite well known. In the domestic realm, the Copyright Act 1957 which is supported by the Copyright rule of 1958 governs the copyrights issues in India.
MEANING OF COPYRIGHT
Generally, copyright is a denomination of a bundle of exclusive rights that covers or protects the work or creation as a mundane depiction of basic intellectual ideas of the nature of the visible form of stability i.e. ideas cannot be given copyright protection. Further, the copyrightable work should satisfy the criteria of protectability and copyrightability with the requirement of being registered under any given system of law. The purpose of copyright does not matter i.e. even a small jingle or slogan can be granted a copyright. Copyrightable work does not have industrial applicability but it only promotes the social, moral and cultural value of the society.
Section 14 of the copyright act provides that a copyright can be granted in respect of work or any substantial part thereof. Copyright does not subsist in whole necessarily. Copyright can be of substantial part thereof. The word substantial part is used in terms of both quality and quantity. If the work is of high quality then even there can be infringement in the use of a single line. In the case of literary, dramatic and musical work the right to copyright includes the right to reproduce the work in any material form including electronic storage. It is pertinent to mention that there is a difference between copying and reproducing as reproduction can only be in material or tangible form. This signifies that if a person is performing his story he is not producing it in a material form.
In the case of literary, dramatic and musical work the right to copyright includes the right to perform the work in public. However, if the work is performed by an amateur club in front of a non-paying audience then it would not amount to copyright infringement. Similarly, if the work is performed in the course of activities of educational institutions then also it would not amount to copyright infringement. Similarly, reading and reciting in public reasonable extracts from a published literary or dramatic works does not amount to copyright infringement.
HOW TO PROVE COPYRIGHT INFRINGEMENT
To prove copyright infringement, the onus is on the plaintiff, he must prove that the defendant has copied his work as opposed to creating it independently and prove that substantial similarity between the plaintiff copyrighted work and the defendants work exist. The plaintiff can prove that the defendant has copied the plaintiff's work through the admission of the defendant, or by direct evidence that the defendant has made mechanical copies of the plaintiff's work. It can also be proved through circumstantial evidence like by proving that the defendant has access to the plaintiff's work and there exists substantial similarity by showing that even errors are copied.
TEST OF SUBSTANTIAL SIMILARITY
Substantial similarity is used to check whether the defendant infringed the reproduction right of copyright. Substantial similarity means the extent of similarity which is sufficient to prove that copying has occurred.
Another definition of Substantial Similarity read as follow:- "The threshold for determining that the degree of similarity suffices to demonstrate actionable infringement" exists, "after the fact of copying has been established."
In the case of R.G. Anand v. Delux Films, the apex court has laid down the test of substantial similarity. Where the same idea is being developed differently, it is manifest that the source being common, similarities are bound to happen. In such a case, the courts should determine whether or not the similarities are on fundamental and substantial aspects of the mode of expression adopted in the copyrighted work.
LOOK AND FEEL TEST
One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
In the present scenario where the internet has become a part of an individual's day to day life. It has also opened new doors for the transmission of literature and artistic work and widened their reach in the public domain. But this has also opened new doors for the infringement of copyright hence there is a need of the hour to add new provisions in the Copyright Act 1957 to protect the infringement of copyright of art and literary work available online.
V.K. Ahuja, Law Relating to Intellectual Property Rights (LexisNexis, India, 3rdedn., 2017).
 The Copyright Act 1957, s.2(o).
 The Copyright Act1957, s. 2(y).
 The Copyright Act 1957, s. 52(l).
 The Copyright Act 1957,s. 52(i).
 The Copyright Act 1957, s. 52(g).
 Justice Jon O. Newman (1997).