Dissecting Copyright issues regarding Derivative works
In the Book of Ecclesiastes, where the author refers to himself as the Kohelet, scorns on how cliché life is; going on about how “There is no new thing under the sun”. That is one of the reasons why derivative works are protected under the Copyright law. But the question lies on whether all the derivative works are legally entitled to copyright protection.
What would happen if popular series like Game of Thrones is remade in India? Like infamous Bollywood movie, ‘Ghajini’ which is a remake of movie ‘Memento’ or ‘Munna Bhai M.B.B.S’ that was copied from ‘Patch Adams’? Could they claim to be protected under the copyright laws as derivative works? This question continues to linger on as we listen ‘Swag se Swagat’ from ‘Tiger Zinda Hai’ that sounds very similar to ‘The Horns-DJ Katch’. Not only Bollywood is filled with many movies and songs that are copied from pre-exiting works, even literary works have been remade in India, much like ‘Harry Potter’ was remade into ‘Harry Potter in Calcutta’. Due to the present abundance of derivative work all around us, there needs to be a clear understanding to determine which of the works that are derived from pre-existing works are copyrightable.
AN OVERVIEW OF DERIVATIVE WORKS UNDER COPYRIGHT LAW
Derivative work is a developed work from a pre-existing work that is modified with an element of originality that would make the work copyrightable. Types of Derivative works include the adaptions or translations of a work, however, there is a murky line that sets apart some translations from the adaptations works, where the adaptations generally include change in format from the original work.
Derivative works aren’t prima facie defined under the Indian Copyright Act, 1957, rather they are referred to as adaptation that is defined under Section 2 (a) as the conversion of works from one form to another [i], unlike United States Copyright Act of 1976, where under Section 103, compilations and derivative works are considered valid subject matter of copyright [ii]. Hence, under Indian Copyright law, the grey area of the derivative works right are majorly covered by the judicial pronouncement in the Court of law, where many principles such the standard of originality and creativity that is required for the derivative works to have Copyright protection are set out.
UNDERLYING PRINCIPLES OF DERIVATIVE WORKS RIGHTS IN STATUTE.
According to the Indian Copyright Act, 1957 the copyright scope is consisting of works that are original and that are literary, dramatic or musical, including artistic in nature under Section 13(1). Under the Section 13(1) (b) and (c), copyrights are given over cinematographic works and sound recordings respectively, which means that the derivative works that come under this broad classification can also be protected under the copyright law.[iii]
Copyright is defined as the exclusive right that is vested on an individual which authorises that person to reproduce works, to make commercial opportunities out of the original work and to make the derivative works based on the original work under Section 14 of the Indian Copyright Act, 1957. Hence, a copyright authorises a person to adapt literary, dramatic or musical works; here, it is to be understood that under this provision the derivative works are copyrightable works, where only authorised person can create derivative works. Further, under Section 32, a license may be applied in the copyright office for the production of translation of an original work after seven years of its publication. [iv]
STANDARD OF ORIGINALITY REQUIRED FOR COPYRIGHTABILITY OF DERIVATIVE WORKS
In order to prevent the derivative works from being copied and infringed, they must have copyright protection. But when would derivative works be eligible for copyright protection, is something that is answered by applying criteria of originality and creativity. The questions of standard of originality is the most common copyright issue that arises in respect of derivative works.
In Eastern Book Company v D.B. Modak [v] the appellants copy-edited judgments that were created with skill, labour, judgment and capital, which was copied by the respondents who published it in the form of software. The issue before the Supreme Court was to determine the standard of originality for the derivative works and whether the appellants have copyright over their work. The Court had interpreted that the copy-edited version had required the author to make discernment and consideration which had invested skill, labour and had called for sound judgment of the author and there is a minimum amount of creativity, hence the appellants were entitled to copyright protection for their work. ‘Originality’ in this case was interpreted not to mean with respect to the work arising from an original thought or inventive idea, but the expression of the idea must show originality in the form of print or writing [vi]. When a work consists of unoriginal material but is created through the investment of skill, labour or expenses with flavour of creativity, then it would be eligible to be termed as an original work.
The labour, capital and skill requirement was further dealt with in depth in the case Macmillan and Company Ltd. v K and J. Cooper [vii], where the court had emphasised the importance of the manifestation of factors such as skill, labour, capital and sound judgment by the author of the derivative work in the process of creation, that is to be rendered for the creation of character, that the original literary work did not have. When these requirements are fulfilled, the derivative work gains the characteristic of originality that distinguishes it from the already existing works, bringing it under the protection of copyright law. The question as to the quantum of originality that is required was observed by the court in Alfred Bell & Co. v. Catalda Fine Arts, Inc [viii] wherein it was decided that the author of the work should contribute a little more of something than that is merely trivial in nature, which would make it something that is of the author’s own. It means that the variation that is added to the derivative work from that of the original work must have an element of originality that would make the work when considered as a whole determinant as an original work. The variation must distinguish derivative work from the original work.
The derivative works, when put under the test of the originality and creativity, they are dealt with quantitatively and qualitatively while considering the similarity aspect; this principle dates back to the year 2008 where the District Court of USA had set out this principle in Warner Bros. Entertainment Inc. v. RDR Books [ix]. However, this case can also be an example for differentiating the perspective in which the American law and judicial pronouncements in respect of copyright law is different from that of India’s, because in this case the court had interpreted the legal character and the usage of the derivative works while considering the commercial viability as the focal point, and most principles of their copyright law are based on this.
CREATIVITY ISSUE IN DERIVATIVE WORKS
Derivative works, in order to be under the protection of copyright, must have a factor of creativity. Creativity in derivative works is what sets them apart from the pre-existing works that they derived from, making them competent for copyright protection.
Hence, creativity is a required factor for derivative works in order for achieving copyright protection. But what quantum of creativity put in would make a derivative work eligible to be protected under copyright law? To answer this, we should refer to Dr. Reckeweg & Co. GMBH v. Adven Biotech Private Ltd [x] where the court had observed that in order for a work to be considered as ‘original’ it must have a ‘modicum of creativity’, which means that the work must express a form of intellectual creativity and originality. But the creativity and the originality must not be so trivial that could be looked upon or close to being non–existent that would make the works incapable of being protected by copyright.
Also, as already discussed in Eastern Book Company v D.B. Modak [xi], the work must contain a minimum degree of the author’s own creativity that is distinct from the previous works. The requirement being uncopied in nature makes the work independent from the pre-existing original works.
With the copyright issues that are pertaining to derivative works being dealt with herein, a question which still lingers is as to why Bollywood could infamously copy off many movies and songs from Hollywood without facing any repercussions? The reason is simple- due to the investments, enforcement regime and the lack of effective resources, most copyright holders deny to sue the Bollywood film makers to save the unnecessary costs. There is still scope for the development of IPR regime in India to make the cost-effective barrier for the protection of copyrights, to solve this common difficulty that we are faced with. [xii]
[i] Indian Copyright Act of 1957, § 2(a) (iv).
[ii] 17 U.S.C. § 103.
[iii] Indian Copyright Act of 1957, § 13(1) (a), (b), (c)
[iv]Indian Copyright Act, 1957, §32
[v] AIR 2008 SC 809
[vi] University of London Press v University Tutorial  2 Ch 601
[vii] (1924) 26 BOMLR 292
[viii](1951) 191 F 2d 99
[ix] 575 F. Supp. 2d 513
[x] 2008 (38) PTC 308 (Del)
[xi] AIR 2008 SC 809
[xii] Jishnu Guha, Time for India's Intellectual Property Regime to Grow Up, 13 CARDOZO J. INT'l & COMP. L. 225 (2005).
ABOUT THE AUTHOR
This blog has been authored by Devi Sree Durgampudi, who is a 3rd Year B.A., LL.B. (Hons.) student at Damodaram Sanjivayya National Law University, Visakhapatnam.
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