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Critical Analysis Of Idea-Expression Dichotomy Vis - Vis Series Analysis

Explanation Of The Scene
Jane is the protagonist of the show titled "Jane the Virgin" (also known as "Jane" in short). She is an aspiring writer who is a struggling waiter in order to make ends meet for herself as well as her family. In Season 1, Episode 15 of the show, she finds out that a renowned romance novelist, Angelique Harper is coming to her hotel, so she decides to take that opportunity and show her manuscript so that she can give inputs as an expert in the genre and suggest any changes.

Unfortunately, Angelique mistakes her for a masseuse, but eventually reads the chapter and publishes a book, which Jane starts reading and finds it awfully similar to her concept note shown. Jane approaches a district attorney for advice. The scene which the author of this assignment has chosen is from Season 2, Episode 14 of the TV series, Jane and her friend are travelling in a car, and hears an announcement on the radio related to a book signing for a book titled "Revolution of the Sun".

She explains to her friend that the author stole her idea from her chapter. She was preparing to confront the author at a book signing and threaten her with legal action as the expression of her idea was stolen from a chapter of a book manuscript she wrote and practiced it on her friend, so that she could seem convincing and firm. When it was finally her turn at the book signing, she was not able to challenge the authenticity of the book, as she had to leave because her pregnant friend goes into labour. Thus, the problem does not get resolved.

Legal Problems
When she gets home from the hospital later on, she re-reads her book and feels that it was not that similar after all, but this could also just be a way of convincing herself to not go through expensive litigation, especially against a powerful and established writer. This happens a lot in the entertainment industry with people filing suits for infringement, even if the story is loosely based on theirs, in order to extort money from big companies.

Example: 6 people claimed James Cameron's Avatar copied their stories, a woman sued Disney for using her personality rights without her authorization for the film Frozen and another man alleged that the film The Matrix ripped off the screenplay he wrote about Hitler's son attempting to kill mortal humans. Some authors may tend to find similarities that just aren't there or aren't evidence of copying. Jane may also not be able to prove access to the work or prove that her work came first.

She also did not have any proof that Angelique read or even received it, because the encounter happened in a private room with no written or video evidence. Angelique did not sign a release form either. The chapter was also unpublished and no copyright registration was done, which is not a mandate, but could've worked in her favour if she'd done so. Jane may have a case for infringement because of how her timeline of events matches with how the author got "inspiration" to execute the same premise, but it can also be considered just a coincidence.

Also, a renowned author may come across many people showing them their scripts for review or collaborative purposes, so maybe other people had a similar idea to Jane, so it is not all that novel.

Theoretical Justification

Instrumentalism: The theory of instrumentalism believe that through copyright, authors can make a living out of their work because they are paid for it and argued that exclusivity of copyright needs to be clearly defined. Jane, the rightful owner and author of the manuscript, felt that Angelique was unjustly enriched by her efforts, so this theory was not satisfied.

Romanticism: They cared less about structure and exclusivity, and felt that copyright protection restricted development of cultural advancements. They rebelled against defining strictly as to what comes under copyright infringement, because otherwise it places a restriction on other authors' creativity. This is essentially contradicting instrumentalism. They argue that if a writer or a society has to constantly worry about whether a certain scene or storyline is borrowed, they will be reluctant to put out work, which leads to depriving society of the expression of art. This can be applicable to Angelique's case, as she could claim that even though the idea might be similar, the expression was highly different. Incidental similarities like the place where the story is set do not constitute infringement.[1]

Personhood: Jane's inspiration for writing a story often comes from real life events, and themes of romance and family. Thus, it can be said that she pours her heart and integrates her personality into the work, and thus she should get copyright protection. This can be relevant as a defence for Jane, but it is also unlikely to stand as in the romance genre, there are bound to be essential themes and plots (scene faire)[2].

Legal Analysis
The nature of intellectual property violated is here is copyright, as the work in question falls under Section 13(1)(a) of the Copyright Act, 1957, which includes literary, dramatic, artistic and musical works within the purview of its subject-matter, where the first one is relevant in this situation. Ideas cannot be copyrighted, but expression of the idea in a tangible form can be protected under copyright laws. The concept identified here is known as idea-expression dichotomy.

It is difficult at times to differentiate the idea from the expression of the idea, but it must be done so as to not stifle creativity of artists. Jane had an idea for a story, and she also wrote it down in the form of a manuscript, which is a tangible expression. Furthermore, as she wrote it down, it can be classified as a literary work. Section 2(o) defines literary work as "including computer programmes, tables and compilations including computer databases".

Generally, any work in written down form in literary manner constitutes literary works. Some common examples may be scripts, concept notes, books, manuscripts, research papers and screenplays. It does not have to be a completed or published book in order to constitute copyright infringement.

As per Section 2(d)(i), "author" of a literary or dramatic work is considered to be the author of the work. Jane has not been hired by anyone to write the manuscript for her eventual book, so Section 17 does not apply as she is the owner. Jane exercised skill, labour and judgement along with applying her creativity to write a story, so the US doctrine of modicum of creativity can be applied here[3], especially since the series is set in Florida, USA. India takes a middle-approach between the doctrine of sweat & brow from the UK and the doctrine of modicum of creativity from the USA, so the skill and judgement test can also be relevant here.[4]

The Act also makes it clear that unpublished works are covered under its scope, and the legislative intent also affirms the same. This can be seen under Section 16 of the Act, which mentions the terms "published or unpublished" works not having copyright other than the copyright protection vested by virtue of the Act.

The only limitation for unpublished works is that they do not specify a term of copyright for them. Chapter V of the Act only covers published works. Another provision that could be applicable here is Section 57 of the Indian Copyright Act, 1957, which deals with the moral rights of an author, that is perpetual cannot be waived beyond a certain extent even with authorisation through a contract or after the term of copyright expires. Jane did not give permission to the author to base her book on Jane's work or publish such a book without giving her credits, which violates her right to integrity.

In Wiley Eastern Ltd. & Anr. v. Indian Institute of Management[5], defendants referred to many other books from other authors without giving them due recognition, which affected sale of plaintiff's book. Court held this was violation of moral rights.

In Macmillan v. Cooper[6], court held that the pages which are copied from Thomson North's book (publisher was Macmillan) cannot be claimed as Cooper's original work. Concept note or a more developed form into a draft of a chapter as part of a book can have copyright subsisting on it from the moment it is created, like other copyrightable works.

In Anil Gupta v. Kunal Dasgupta [7], Anil was a director of many TV programmes, who came out with an idea of a matchmaking programme with the name "Swayamvar" and shared it with Kunal and his team. The details of the execution were thoroughly mentioned in the note. Anil registered the concept note before showing it to Kunal. He saw a newspaper article advertising a new reality show, which was basically produced by Kunal. It was a matchmaking programme, but with a changed name titled "Shubh Vivah".

The Court ruled in favour of Anil. In Urmi Chiang v. Global Broadcast News[8], Urmi was also a director, who came out with a unique format for a show named "Work in Progress", where filmmakers document the complaints of the citizens in that area and address the issues to the politicians so it can be resolved faster and with more accountability. She had pitched it to Global Broadcasting, which was a production house, but later on found that her idea was plagiarised into a new show produced by them titled "Summer Showdown".

Comparison To International Copyright Framework

In Baker v. Selden[9], court held that Baker's book was not infringing upon Selden's work, because the idea of bookkeeping was similar, but the expression was different. Similarly, Angelique can argue that even though plot may contain some similarities, it is not substantial or fundamental to constitute infringement.

The Berne Convention of 1886 was established to provide creators/authors of literary and artistic work with some exclusivity and monopoly rights over their work, and to prevent others from making authorised usage of such work subject to copyright. Article 6 bis of the Berne Convention enjoins the members of the Berne Union to provide legal recognition for the moral rights of attribution and integrity in a work upon which copyright exists.

India is currently a signatory to the Berne Convention and in Amarnath Sehgal v. Union of India[10], the court cited Article 6 bis, which allows the author to seek appropriate legal remedies if the moral right of attribution and integrity in his work is violated. As per this Convention, Jane can be entitled to moral rights even if/when she decides not to gain commercial benefits from her book.

The minimum duration of copyright is for the life of the author and fifty years after his death, but in Europe and US, that legal term of copyright has been extended to seventy years after the death of the author and in some instances even beyond. For book publishers, the duration of copyright is important to know as different terms apply in different countries and national treatment under the Berne Convention is limited by the rule of comparison of terms.

References:
  1. RG Anand v. Delux Films, AIR 1978 SC 1613.
  2. NRI Film Production Associates v. Twentieth Century Fox Films, ILR 2004 KAR 4530.
  3. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340.
  4. Eastern Book Company & Ors v. D.B. Modak & Anr., (2008) 1 SCC 1.
  5. Wiley Eastern Ltd. & Anr. v. Indian Institute of Management, 1995 SCC OnLine Del 100.
  6. Macmillan v. Cooper, (1924) 26 BOMLR 292.
  7. Anil Gupta v. Kunal Dasgupta, 2002 IVAD Delhi 390.
  8. Urmi Juvekar Chiang v. Global Broadcast News Ltd., 2008 (2) BomCR 400.
  9. Baker v. Selden, 101 U.S. 99 (1879).
  10. Amarnath Sehgal v. Union of India, 2005 (30) PTC 253 (Del).

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