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we have gained
from each other can never be summarized in a few words. This ain't a farewell speech or a photo-album
that marks the end of something but instead, brings us hope that we'll remain the same till the very drop
of insanity that is left in us. :)
I started this photo journey with a small Nokia phone when people used to hide from the non-flash camera
which has given some of the most beautiful memories over these years and today is the day when things
are about to get a little nostalgic for all of us. Naming the people or tagging them to express what they
mean in our lives won't help a bit because there are certain things that only hearts can bind in them. On
that note, this is seriously a description big enough to explain some of the memories we captured in the
last year of togetherness in the Faculty of Law, University of Allahabad which has actually given me much
more than I ever though to have deserved.
P.S- There are some people who left us for their heavenly ride in different colleges but they still form an
indelible part of our lives. This is for them. :D
INTRODUCTION
The word copy has a range of meanings: transcript, imitation, reproduction of an original writing
or painting etc. Creators of literary artistic or musical works in ancient times did not worry about
their work being copied. However, the question of copyright came to the fore when the printing
technology made its appearance. The first to be affected adversely by printing were the authors
whose books/works could be copied in large numbers by unauthorised persons, who would reap
the benefits depriving the authors of just rewards of their intellectual work. Later as technology
advanced, several other categories of originators of intellectual works were included under
copyright: literary, dramatic, musical, artistic, cinematograph film, sound recording. Broadly
speaking, copyright is an exclusive right granted by law for a specified period to the creator of a
work of thought against any form of copying by an unauthorised person. Under copyright,
several acts are defined which are prohibited to prevent what would amount to copying. The
things for which copyright subsists emerge from ideas, concepts, thoughts etc. that are common
to all, but these things have been put in a fixed form using ones mental faculty. The first
enactment on copyright in India was the Indian Copyright Act, 1914, which modified the
Copyright Act, 1911 of UK that was applicable at that time to India. To meet the changes brought
by advances in technology of communication and reproduction, as also the emergence of India as
an independent nation with its own aspirations and agenda for development, a complete revision
of the law of copyright was effected in the form of The Copyright Act, 1957. It was amended
from time to time, the last being in 1999. The copyright Act, 1957, as amended in 1999 came
into effect on January 15, 2000. In the following text, we will refer to it as the Act. The object of
copyright law is to encourage authors, composers, artists and designers to create original works
by rewarding them with an exclusive right for a limited period. Such exclusive rights are
permitted for literary, dramatic, musical, artistic, cinematograph film and sound recordings.
Licensing the right to publishers, film producers and music record manufacturers permits the
economic exploitation. The law also aims at preventing anyone from reproducing or exploiting
another persons work without authorisation. Please remember that copyright in a work is not a
single right; it bundles several rights together. For example, copyright in a book is not merely the
right to bring it out in varied editions, but also the right to serialise it in media, to its dramatic
and cinematographic versions, translation, abridgement and adaptation etc. Copyright is also
accompanied with other related rights going beyond reproduction of the work; these rights are
known as Neighbouring Rights. These include the right to works derived from the original work,
the right to public performance and the right to recording and broadcasting. The bundle of rights
that constitutes copyright has two kinds of rights: (a) the economic rights that take care of the
economic interests of the author, and (b) the moral rights, that is, the rights that concern the
status, respect and dignity of the author. The economic rights deal with issues like permission to
publication or reproduction of the work or their adaptation or translation and the right to assign
or license the copyright. The moral rights include the right to claim and be recognised as the
author of your intellectual creation, and have your name mentioned as the author whenever your
work is used; similarly the author has the right to object to the use of the work in a manner or in
a context that would compromise his honour and reputation.
of any distortion, mutilation, modification that are prejudicial to the honour or reputation of the
author. The author has the right to prosecute anybody who publishes the work without the
authors consent. The artist who performs the drama or music has no right and there is no
copyright in the performance as such, even though the dramatic work and music and lyrics can
be copyrighted. Criteria for Entitlement for a Copyright In order to be entitled for a copyright in
a work in India, its author must fulfil certain other qualifications besides the originality of the
work in respect of form of expression. These require that the work be published in India, or if it
is first published outside India, the author, at the time of publication, be a citizen of India, or if
the work is published posthumously, the author at the time of death be a citizen of India. In the
case of unpublished work the author must be a citizen of India, or domiciled in India, at the time
of making the work. However, this does not apply to works of architecture. The above mentioned
requirements do not apply to works of foreign authors or of foreign organisations. However, the
Central Government may extend the copyright protection under the Act to such works subject to
certain conditions on the basis of reciprocal arrangement with foreign countries in respect of
grant of copyright to Indian authors in those countries similar to those granted to their own
nationals.
propagates information and it is expected that information contained there, or its thesis and
conclusions would be used by others. Therefore, the knowledge presented in a historical work
can be extracted. Such extraction can itself be the subject matter of a copyright. A lecture, if it is
reduced to writing before delivery, carries copyright. A lecture delivered extempore will not
carry copyright but still be protected invoking breach of confidence. This fact holds because of
the understanding that the audience is admitted for listening the lecture but not to publish it.
Letters private, business or government whether handwritten or dictated, carry copyrights.
Dictionaries, directories, catalogues, even tambola ticket books are all subject matters of
copyright as they are original works requiring investment of thought, skill and labour. A single
word cannot be copyrighted. The logic is two-fold. First, it is not a creation of skill or labour;
second, an exclusive right over a word would take it away from use.
The judgment delivered in 1996 by the Delhi High Court in Raja Pocket Books (Plaintiff)
v. Radha Pocket Books (Defendant) has dealt with copyright protection for characters.
The plaintiff in this case sought temporary injunction against the defendant to prevent circulation
of any kind of promotional material in any manner under the name Nagesh, which, according
to the plaintiff, infringed its copyright in its character Nagraj. The plaintiff further alleged that
the defendants release of its (defendants) comic series called Nagesh amounted to
misrepresentation because the character closely resembled the plaintiffs i.e. the character was
Nagraj-like.
The plaintiff submitted to the Court that in its eponymous comic series, Nagraj was the central
character and was dressed in green which was an allusion to his serpentine skin and wore a belt
which was designed like a snake. The whole series, according to the plaintiff, revolved around
the exploits of this character which entitled the plaintiff to copyright in the series as well as the
character, its get up and appearance. The title character, in the comics is brought to life by a
herpetologist (ahemSnake expert), has Voldemort-esque powers in that he has power over
snakes which are released from his body (I request the readers to bear with these pedantic details;
its a childrens comics after all) and at the behest of a noble hermit, he decides to put his powers
to good use.
The defendants title character Nagesh too is depicted in almost the same fashion with a slight
alteration in the storyline. Nagesh is created when a herpetologist brings a dead person back to
life using errra snake pearl. This character too uses his powers against crime on the advice of a
sage. He too dresses in a green coloured body stocking. Does the character of the defendant
Nagesh infringe the plaintiffs copyright in Nagraj, if at all there exists one?
Lets analyse this in the light of the observations made by the US Court in the Star Wars case.
InStar Wars, the Court held that for characters to be bestowed with copyright protection, they are
expected to bring an element of distinctiveness through their traits i.e. hypothetically speaking, if
characters of a run-of-the-mill love story are to qualify for copyright protection, they must
distinguish themselves significantly from most characters used in this genre or though belonging
to an existing genre, the very features possessed by the character must distinguish the storyline.
This is true of most superhero comics because the traits of Superman are different from that of
Spiderman and so and so forth. So if one were to introduce a character who is an alien, who can
fly and is susceptible to weakness in the presence of a piece of rock from his home planet,
chances are that the character infringes Superman.
The other possibility could be that the particular circumstances in which an old theme is set
could distinguish the movie from the rest in its genre and yet the characters of the story could be
ordinary individuals with no characteristic features; but in such a case, I believe, the characters
are not copyrightable in themselves. Of course, this possibility is not relevant to this case. So the
character of the plaintiff Nagraj appears to be copyrightable owing to his distinctive features.
Further, going by the standard of a customer of reasonable intelligence, it would appear that both
the characters are substantially similar in content and appearance. This means that the one which
was created prior in time is infringed by the later one.
The defendant attempted to support the use of his character by casting aspersions on the priority
of the plaintiffs creation but this was rebuffed effectively by the Court on the basis of the
evidence submitted by the plaintiff. As for the similarity in appearance, the defendant sought to
counter the plaintiffs allegation of misrepresentation by saying that the use of the colour green
to represent snakes or snake-like beings was common to the trade and the plaintiff cannot usurp
this practice to himself. Such arguments are common to trademarks or trade dress cases; for
instance, if red and white colours represent the teeth and gums, then the use of these colours on a
toothpaste tube may not be considered distinctive enough for grant of rights for exclusive use.
But can this argument hold water in this case?
True, the colour green has, over a period of time, come to represent envy, jealousy or
cunningness or snake-like qualities, but the fact that it was being used in this case for a character
who had power over snakes and which use was original given the context, qualified the use for
copyright protection. If theres an iceman, one would probably expect him to be in white, but the
use of this colour combined with the fact of its use to depict a character with unique
characteristics vests the creator with copyright in the depiction. A popular example would be the
Onida (which in Japanese means the devil) advertisement where the devil is shown. If this were
to be used by some other television manufacturer, probably he would infringe the copyright of
Onida despite the fact that Onida has no copyright in the devils portrayal as such. This means
that practices which are common to the trade may not be copyrightable in themselves, but their
novel use in certain instances may be copyrightable. Therefore, the use of the colour green to
depict a superhero with the powers of a snake prevents others from identical/similar use.
Now, lets look at what the Delhi High Court had to say on all the above discussed issues. The
Courts analysis was based on the interpretation of s.51 of the Copyright Act
in R.G.Anand v. Delux Films. The Court observed that grant of copyright is confined to form,
manner, arrangement and expression of the author and that in cases where different authors take
inspiration from the same source, similarities are bound to creep in, which need not amount to
infringement of the first authors copyright. In these cases, the Court noted, it becomes
imperative for the Court to look for similarities in the modes of expression, which if found
substantial at once, leads one to conclude that the later work infringes the former in time.
The Court then got down to comparing the various elements of the characters in question and the
storylines as well. It is probably safe to conclude that even when one discusses the vestation of
copyright in characters, a discussion of the storyline or the context is unavoidable for it is the
storyline which helps in fleshing out the salient features better. The Court first noted the striking
similarity, phonetic and semantic, in the names of the characters Nagraj and Nagesh which
in effect meant the same. Then theres the fact of their visual portrayal and not just word
portraits being nearly the same. Lastly, both characters had almost the same powers and were
created in more or less the same way making it difficult to conclude that there was no intention
on the part of the defendant to misrepresent or atleast take advantage of the plaintiffs character.
Taking advantage of the popularity of a theme or a fad is one thing and aping the very form or
presentation is quite another. The Court pointed out that the changes, if any either in the
appearance or portrayal of the character or the sequence of narration, were but inconsequential
(cosmetic, if i may) and hence found prima facie infringement of the plaintiffs character.