Copyright in Judgments - Present judicial standing in India

Indian Scenario
It is very important to know certain details about copyrights before analyzing the topic in hand which is copyright in judgments. Some relevant sections of the Indian Copyright Act, 1957 which would help in explaining the necessary details about copyrights are:

14. Meaning of copyright.-For the purposes of this Act, "copyright" means the exclusive rightsubject to the provisions of this Act, to do or authorize the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-
(a) in the case of a literary, dramatic or musical work, not being a computer programme, -
(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);
(b) in the case of a computer programme,-
(i) to do any of the acts specified in clause (a);

51A ;(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme: Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.;
(c) in the case of an artistic work,-
(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already in circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);
(d) In the case of cinematograph film, -
(i) to make a copy of the film, including a photograph of any image forming part thereof;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the film to the public;
(e) In the case of sound recording, -
(i) to make any other sound recording embodying it;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the sound recording to the public.

Explanation: For the purposes of this section, a copy which has been sold once shall be deemed to
be a copy already in circulation.

15. Special provision regarding copyright in designs registered or capable of being registered under the Designs Act,1911.-(1) Copyright shall not subsist under this Act in any design which is registered under the Designs Act, 1911.

2. Interpretation.- In this Act, unless the context otherwise requires, -
(k) "Government work" means a work which is made or published by or under the direction or control of -
(i) the Government or any department of the Government;
(ii) any Legislature in India;
(iii) any Court, Tribunal or other judicial authority in India;
(o) "literary work" includes computer programmes, tables and compilations including computer databases;
(y) "work" means any of the following works, namely:
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a sound recording;"

13. Works in which copyright subsists.-
(1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say, -
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) sound recording,

(2) Copyright shall not subsist in any work specified in Sub-section (1), other than a work to which the provisions of Section 40 or Section 41, apply, unless -
(i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the tine of his death, a citizen of India;
(ii) in the case of an unpublished work other than a work of architecture, the author is at the date of the making of the work a citizen of India or domiciled in India; and
(iii) in the case of a work of architecture, the work is located in India.
Explanation.- In the case of a work of joint authorship, the conditions conferring copyright specified in this sub-section shall be satisfied by all the authors of the work.

(3) Copyright shall not subsist -
(a) in any cinematography film if a substantial part of the film is an infringement of the copyright in any other work;
(b) in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed.

17. First owner of copyright.- Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein:
Provided that -
(d) in the case of a Government work, Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;
52. Certain acts not to be infringement of copyright.- (1) The following acts shall not constitute an infringement of copyright, namely:
a) ...
(q) the reproduction or publication of -
(iv) any judgment or order of a Court, Tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the Court, the Tribunal or other judicial authority, as the case may be;

There have been case laws in which the question of whether copyright exist in judgments have been pondered over. It is inevitable to not analyze some of them.
The most important and relevant being the case of Eastern Book Company and Ors vs D.B Modak [1]

In this case Appellant No. 1 - Eastern Book Company is a registered partnership firm carrying on the business of publishing law books. Appellant No. 2 - EBC Publishing Pvt. Ltd. is a company incorporated and existing under the Companies Act, 1956. The said appellants are involved in the printing and publishing of various books relating to the field of law. One of the well-known publications of appellant No. 1 - Eastern Book Company is the law report "Supreme Court Cases" (hereinafter called "SCC").

The appellant publishes all reportable judgments along with non-reportable judgments of the Supreme Court of India. Yet another category included in SCC is short judgments, orders, practice directions and record of proceedings. The law report SCC was commenced in the year 1969 and has been in continuous Page publication ever since. The name "Supreme Court Cases" has been coined by the appellants and they have been using the same continuously, exclusively and extensively in relation to the law reports published by them. For the purpose of publishing the judgments, orders and proceedings of the Supreme Court, the copies of judgments, orders and proceedings are procured from the office of the Registrar of the Supreme Court of India. After the initial procurement of the judgments, orders and proceedings for publication, the appellants make copy-editing wherein the judgments, orders and record of proceedings procured, which is the raw source, are copy-edited by a team of assistant staff and various inputs are put in the judgments and orders to make them user friendly by making an addition of cross-references, standardization or formatting of the text, paragraph numbering, verification and by putting other inputs. The appellants also prepare the headnotes comprising of two portions, the short note consisting of catch/lead words written in bold; and the long note, which is comprised of a brief discussion of the facts and the relevant extracts from the judgments and orders of the Court.

Headnotes are prepared by appellant No. 3-Surendra Malik. As per the said appellant (plaintiff No. 3 in the suits filed in the Delhi High Court), the preparation of the headnotes and putting the various inputs in the raw text of the judgments and orders received from the Supreme Court Registry require considerable amount of skill, labour and expertise and for the said work a substantial amount of capital expenditure on the infrastructure, such as office, equipment, computers and for maintaining extensive library, besides recurring expenditure on both the management of human resources and infrastructural maintenance, is made by the plaintiff-appellants. As per the appellants, SCC was a law report which carried case reports comprising of the appellants' version or presentation of those judgments and orders of' the Supreme Court after putting various inputs in the raw text and it constituted an 'original literary work' of the appellants in which copyright subsisted under Section 13 of the Copyright Act, 1957 and thus the appellants alone had the exclusive right to make printed as well as electronic copies of the same under Section 14 of the Act. Any scanning or copying or reproduction done of or from the reports or pages or paragraphs or portions of any volume of SCC by any other person, was an infringement of the copyright in SCC within the meaning of Section 51 of the Act.

The defendant-respondent No. 2 Spectrum Business Support Ltd. (in Civil. Appeal No. 6472/2004) has brought out a software called "Grand Juriy" published on CD-ROMs and the defendant-respondent No. 2 Regent Data Tech Pvt. Ltd. (in Civil Appeal No. 6905/2004) brought out software package called "The Laws" published on CD-ROMS. As per the appellants, all the modules in the defendant-respondents' software packages had been lifted verbatim from the appellants' work; the respondents had copied the appellants' sequencing, selection and arrangement of the cases coupled with the entire text of copy-edited judgments as published in the plaintiff-appellants' law report SCC, along with and including the style and formatting, the copy-editing paragraph numbers, footnote numbers, cross-references, etc.; and such acts of the defendant-respondents constitute infringement of the plaintiff-appellants' exclusive right to the same.

It was held in the case that the reports in the Supreme Court Cases (SCC) of the judgments of the Supreme Court is a derivative work in public domain. By virtue of Section 52(1) of the Act, it is expressly provided that certain acts enumerated therein shall not constitute an infringement of copyright. Sub-clause (iv) of Clause (q) of Section 52(1) excludes the reproduction or publication of any judgment or order of a Court, Tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the Court, the Tribunal or ocher judicial authority from copyright. The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or 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, labor 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, labor 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. To secure a copyright for the judgments delivered by the court, it is necessary that the labor, skill and capital invested should be sufficient to communicate or impart to the judgment printed in SCC some quality or character which the original judgment does not possess and which differentiates the original judgment from the printed one. The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labor and investment of capital, maybe it is a derivative work which gives a flavor of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author.

For the reasons stated above, the appeals were partly allowed. The High Court did grant interim relief to the plaintiff-appellants by directing that though the respondent-defendants shall be entitled to sell their CD-ROMS with the text of the judgments of the Supreme Court along with their own head notes, editorial notes, if any, they should not in any way copy the head notes of the plaintiff-appellants; and that the defendant-respondents shall also not copy the footnotes and editorial notes appearing in the journal of the plaintiff-appellants. It was further directed that the defendant-respondents shall not use the paragraphs made by the appellants in their copy-edited version for internal references and their editor's judgment regarding the opinions expressed by the Judges by using phrases like concurring', 'partly dissenting', etc. on the basis of reported judgments in SCC. The judgment of the High Court was modified to the extent that in addition to the interim relief already granted by the High Court, the above-mentioned additional relief to the appellants was also granted.

Some other case laws though do not directly deal with the matter of copyright in judgments, deserve a mention because they aid in formulating an opinion on the present judicial stand on this particular issue.

In Feist Publications Inc. v. Rural Telephone Service Co.[2] Inc., Rural Telephone Service Co. published a typical telephone directory consisting of white pages and yellow pages. The white pages listed in alphabetical order the names of rural subscribers together with their towns and telephone numbers. The yellow pages listed Rural's business subscribers alphabetically by category and feature classified advertisements of various sizes. To obtain white pages listings for its area-wide directory, Feist Publications Inc. approached different telephone companies operating in North West. Kansas and offered to pay for the right to use their white pages listings.

Of them, only Rural refused. Unable to license Rural's white pages listings, Feist used them without Rural's consent. Rural sued for copyright infringement in the District Court taking the position that Feist, in compiling its own directory, could not use the information contained in Rural's white pages. Rural assorted that Feist's employees were obliged to travel door to door or conduct a telephone survey to discover the same information for themselves. Feist responded that such efforts were economically impractical and, in any event, unnecessary because the information copied was beyond the scope of copyright protection. The United States Supreme Court held that the sine qua non of copyright is originality.

To qualify for copyright protection, a work must be original to the author. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. The requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. The Court further held that no one claim originality as to the facts. This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact Page has not created the fact; he or she has merely discovered its existence.

Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original. Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. The Court goes on to hold that the primary objective of copyright is not to reward the labor of authors, but to promote the progress of science and useful arts. To this end, copyright assures authors the right to their original expression but encourages others to build freely upon the ideas and information conveyed by a work. Only the compiler's selection and arrangement may be protected; however, the raw facts may be copied at will.

In Macmillan and Co. v. K. and J. Cooper[3], action was brought by McMillan and Company to restrain the respondent-firm who was carrying on the trade and business of publishers of educational books, from printing, distributing or otherwise disposing of copies of the book published by the appellants. The ground on which the relief was claimed was that the appellants had a copyright in the book entitled "Plutarch's Life of Alexander, Sir Thomas North's Translation and that the respondent published subsequently a book entitled "Plutarch's Life of Alexander the Great, North's Translation", as it had infringed the copyright to which the appellants were entitled in the earlier compilation.

The Court noted the contents of the book of the appellants as also that of the respondent. As per the Court, the text of the appellants' book consisted of a number of detached passages, selected from Sir Thomas North's translation, words being in some instances introduced to knit the passages together so that the text should as far as possible, present the form of an unbroken narrative. The passages so selected were, in the original translation, by no means contiguous. Considerable printed matter in many instances separated the one from the other. The opinion of the Privy Council was that for the work done by the appellants, great knowledge, sound judgment, literacy skill or taste in the inputs brought to bear upon the translation was not required, as the passages of the translation which had been selected are reprinted in their original form, not condensed, expanded, modified or reshaped to any extent whatever. The Court observed that the North's translation of Plutarch's Life of Alexander does not and never did, as the law stands, never can enjoy the protection of copyright; and the questions which arise for decision must be dealt with upon that assumption.

The Court said that in all cases where the reprint with the text of it consisted merely of a reprint of passages selected from the work of any author, would never have a copyright. There may be cases where selecting and reprinting the passages would require the appreciation upon what has been laid down or established in the book and labour, accurate scientific knowledge, sound judgment, touching the purpose for which the selection is made, and literary skill would all be needed to effect the object in view. In such a case, the copyright might well be acquired for the print of the selected passages. The Court said that it is the product of the labour, skill and capital of one man which must not be appropriated by another, not the elements, the raw material, upon which the labour and skill and capital of the first have been expended.

To secure copyright for this product, it is necessary that the labour, skill and capital expended should be sufficient to impart to the product some quality of character which the raw material did not possess and which differentiates the product from the raw material.

The Court approved the principles enunciated in the case of University of London Press, Ltd. v. University Tutorial Press Ltd.[4], dealing with the meaning of the words 'original literary work' that the original does not mean expression of original or inventive thought. The Copyright Act is not concerned with the original ideas, but with the expression of thought. The originality which is required relates to expression of thought and the Act does not require that the expression must be in original or novel form. The work must not be copied from another work - that it should originate from the author.

The judgment in Matthew Bender & Co., Inc. v. West Publishing Co.[5] , is of United States Court of Appeals, Second Circuit, which directly covered the reports of the judgments of the courts. The facts involved in the case were that the West Publishing Co. and West Publishing Corp. ("West") obtain the text of judicial opinions directly from courts. It altered these texts into (i) independently composed features, such as syllabus, headnotes which summarize the specific points of law recited in each opinion and key numbers which categorize points of law into different legal topics and sub-topics and (ii) additions of certain factual information to the text of the opinions, including parallel or alternative citations to cases, attorney information, and data on subsequent procedural history. West published the case reports in different series of case reporters collectively known as "National Reporter System". Two series of case reporters at issue in that case were the Supreme Court Reporter and the Federal Reporter. Hyper Law publishes and markets CD-ROMs which are compilations of the Supreme Court and the United States Court of Appeals that cover approximately the same ground.

Hyper Law intends to expand its CD-ROM product taking the material from the West publications. Hyper Law intervened and sought a judgment declaring that the individual West case reports that are left after redaction of the first category of alterations do not contain copyrightable material. It was hold by the Court that for copyright protection, the material does not require novelty or invention, but minimal creativity is required. All of West's alterations to judicial opinions involved the addition and arrangement of facts, or the rearrangement of data already included in the opinions, and, therefore, any creativity in these elements of West's case reports lied in West's selection and arrangement of this information. West's choices on selection and arrangement could have been reasonably viewed as obvious, typical and lacking even minimal creativity.

Copyright protection is unavailable for both derivative works and compilations alike unless, when analyzed as a whole, they display sufficient originality so as to amount to an original work of authorship. Originality requires only that the author makes the selection or arrangement independently and that it displays some material with minimal level of creativity. Whole a copy of something in the public domain will not, if it be merely a copy, support a copyright, a distinguishable variation will. To support a copyright there must be at least some substantial variation, not merely a trivial variation such as, might occur in the translation to a different medium. Creativity in selection and arrangement, therefore, is a function of
(i) the total number of options available,
(ii) external factors that limit the viability of certain options and render others non-creative, and
(iii) prior uses that render certain selections 'garden variety'.

Final Note On The Present Judicial Standing In India Regarding Copyright In Judgments
The judgments are specifically made a part of the exception to copyright infringement and thus find place in Section 52(1)(q) of the Act. The underlying purpose is that it is in public interest to place judgments in public domain. Any person who wishes to reproduce or publish a work in public domain is obliged to go to the public domain/common source of such work. When any party utilizes the judgements given by the court of law for making a compilation or a law report or for any other purpose, that party';s creation becomes a derivative work.

For claiming protection of copyright in a derivative work, under the Indian law, originality is a pre-condition and originality means only that the work was independently created by the author as opposed to copied from other works, and that it possesses at least some minimal degree of creativity. In any derivative work creativity should be such that it leads to a new work in itself. There is a distinction between creation and discovery. The first person to find a particular fact has not created the fact, he or she has merely discovered its existence. No one claim originality as to the facts. This is because facts do not owe their origin to an act of authorship. Reporting of the judgments with certain inputs could only be said to be a discovery of facts already in existence.

Though for the purposes of creativity neither novelty nor invention is requisite for copyright protection, but at least some minimal creativity is a must. To create a copyright by alterations of the text, these must be extensive and substantial practically making a new version. The facts which are discovered could be expressed in limited ways and as such ways adopted cannot give copyright protection to the inputs or the judgments as a whole. Recognizing the copyright in the copy-edited version of the law reports would amount to a monopoly in the judgments of the courts which is against the intendment of Section 52(1)(q)(iv) and would defeat the purpose of putting judgments in the public domain.

The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized a purely mechanical exercise. The work should be independently created by the author as opposed to copied from the other works and that it possesses at least some minimal degree of creativity. To secure a copyright for the judgments delivered by the court, it is necessary that the labor, skill and capital invested should be sufficient to communicate or impart to the judgment some quality or character which the original judgment does not possess and which differentiates the original judgment from the printed one.

Endnotes
[1] 2007 (13) SCR 182
[2] 499 U.S. 340 (1991)
[3] (1924) 93 LJ PC 113
[4] [1916] 2 Ch. 601
[5] 158 F.3d 674(2nd Cir. 1933)

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