Literary Work-

Not all literary works enjoy copyright protection. Section 2(o)of the Indian Copyright Act does
not define the term ‘literary work’ as such but it includes computer programmes, tables and
compilations including computer databases within the ambit of what is described as literary work.
Therefore, literary works are not limited to works of literature alone, but include all works
expressed in print or writing (other than dramatic or musical works). Also noteworthy is that the
protection is not limited to words, but includes symbols and numerals. The scope of the subject
matter protected as a literary work is enhanced by the fact that a work will be protected irrespective
of the quality or style of the creation in question.

Literary work has to have the following characteristics:

• It must be original and be fixed in some form.

• The word literature has to be understood in the same manner as it is understood in political and
electioneering sense.
• Hence no literary merit is required.

• Therefore almost every kind of written material work would constitute literary work within the
meaning of Section 13 (1).

Literary works are not limited to works of literature alone, but includes all works expressed in print
or writing (other than dramatic or musical works).

Protection is not limited to words alone but includes thigs such as symbols and numerals.

The Copyright Act, 1957 provides an inclusive definition of literary work. Prior to the Copyright
(Second Amendment) Act, 1994, “literary work” was defined to include computer programme,
compilation, tables and its outcome is that programme recorded on any tape, disc, and in any
information storage device which is capable of reproducing any information. The 1994 amendment
has substituted a new definition for the earlier one. The Act now defines literary work to include
‘computer programmes, tables and compilations including computer databases’. Thus, the
amendment has made the definition simple.

Cases –

 University of London Press Ltd. v. University Tutorial Press Ltd., it was held that it
becomes immaterial whether quality of work is high or low but important thing is that
literary work should expressed in print or writing.

 Eastern Book Company v. D.B. Modak, Apex court pronounced that there are two
classes of literary works primary or prior work and secondary or derivative works. Primary
works are not based on existing subject matter whereas secondary or derivatives works are
based on existing subject matter.
  Dr. Reckeweg & Co. GMBH v. Adven Biotech Private Ltd., Court held that brochure
and catalogue are being a collection or sequencing of existing information therefore it will
fall in derivative or secondary works

Some examples to help distinguish of copyrightable literary works from non-copyrightable ones
is described hereunder:

1. Abridgement –. A genuine abridgement of a literary work is an original work and

can be the subject of copyright.

An abridgement of a literary work, is entitled to copyright if it is new and original and the
author has bestowed sufficient skill and labour upon it.

Macmillan & Co. v Cooper, Appellant’s book had text consisting of passages selected
from North’s Translation of Plutarch’s Life of Alexander, with words being introduced in
some places to give it a form of an unbroken narrative. North’s translation consisted of
40000 words, the text of the Appellant’s book consisted of 22000 words. Appellant alleged
that a similar book published by Respondents was an infringement of their copyright.It was
held that, sufficient knowledge, labour, judgment or literary skill was not expended by
Appellant to entitle him to copyright protection. Appellant’s work did not amount to
abridgement, which connotes a new book and is to be distinguished from mere extracts.

Lord ATKINSON stated: "An abridgement of an author's work means a statement designed
to be complete and accurate of the thoughts, opinions and ideas by him expressed therein
but set forth much more concisely in the compressed language of the abridger.” Court held
that sufficient knowledge, labour, judgment or literary skills were not expended by
Appellant to entitle him to copyright protection. Appellant’s work did not amount to
abridgment, which connotes a new book and is to be distinguished from mere extracts.

2. Compilation – The Act includes compilations as a form of literary work. Therefore

arrangement of broadcasting programmes, a telephone directory, a list of registered
bills of sale, deeds of arrangement extracted from official sources, biographica l
notes of prominent golfers published in a golf manual, a manual of the classified
information for the use of motor car insurers, football coupons and a chemist’s
catalogue of drugs for saleare all copyrightable subject matter.
3. New editions of books: Where a copyright work is edited, there may be two
copyrights existing simultaneously. The copyright in the original text vests in the
original author and the copyright in the additions and re-arrangements of the text,
vests in the person who makes the new edition.
4. Law reports and judicial decisions: A law reporter may have a copyright in
his/her work, if such report qualifies as being an original work. However, the
copyright in the judgments delivered by the courts vests in the government.

5. According to Section 2(n) lectures would include addresses, speeches and sermons.
Copyright can subsist in a lecture only if it is in a written form.

6. Letters qualify as the kind of literature that is protected by copyright law, wherein
copyright in the letters vests in the writer and not to the addressee.

7. Titles, names, short phrases, and slogans are not considered literary work;
therefore no copyright subsists in such. Essentially such phrases or words are part
of the public domain and if they were copyrighted then the owner of such copyright
would enjoy a limited monopoly right over them thereby excluding or controlling
the public from using such phrases or words during the term of the copyright.
Copyright law does not aim at holding the public ransom for what is essentially in
the public domain.

8. Extempore speech is not literary work. Since the Copyright Amendment Act 1994,
a person delivering a lecture is defined as a ‘performer’ under Section 2 (qq) of the
Indian Copyright Act, 1957.

9. News is essentially facts, which are not copyrightable subject matter. In the famous
case of Express Newspapers v. News (UK), the issues before the Court was
whether a newspaper has copyright in its news story and whether it amounts to
infringement if another newspaper picks up the same story and reproduces it in its
own words. The Court held that no one has right over the facts narrated in a story.

10. Invented words are subject matter of trademark law and not considered to be
copyrightable. In the case of Exxon Corp v Exxon Insurance Consultants
International Ltd.,a company invented the word ‘Exxon’ as its corporate name
and trademark. Another company that borrowed the name without the consent was
sued. It was held that copyright cannot subsist in a work just because it is origina l
and literary. The work must offer information, instruction or pleasure in the form
of literary enjoyment to be defined as a literary work
Dramatic Work –

Section 2 (h) of Indian Copyright Act defines “dramatic work” as, “includes any piece for
recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting,
form of which is fixed in writing or otherwise but does not include a cinematograph film”.

An original dramatic work is the product of human mind, arrived at by the exercise of substantia l
independent skill, creative labour or judgment, which requires acting or dancing for its proper
representation and is of a sufficiently definite and permanent nature as to be capable of being
recorded in writing.

Simply put, a work of action, with or without words or music, which is capable of being performed
before an audience is a dramatic work. Copyright subsists not only in the actual words of the work
but in the dramatic incidents of the work as well.
The essence of a dramatic work is a story or a narrative. As a prerequisite in copyright law, for a
piece of dramatic action to be protectable, a written description of the acts of the performer is
essential. Therefore, a dance or pantomime by itself, sans the written description, is not capable of
protection as a dramatic work.

The Court while addressing the issue of whether scenic effects taken in isolation, without regard
to the words and incidents of the piece constitute copyrightable subject matter, found in the
negative. In essence, it was held that a dramatic piece in its entirety along with the scenic effects
is protected as dramatic work under Copyright Law.

Cases-

 Tate v. Fullbrook- Court held that visual skit for a music hall sketch involving the use of
a firework was not the subject matter of copyright because it had not been reduced to
writing. Thus, scenic effects taken by themselves and apart from the words and incide nts
of the piece are not the subject of copyright. The Act creates a monopoly, and in such a
case there must be certainty in the subject-matter of such monopoly in order to avoid
injustice to the rest of the world. Copyright subsists in different categories of work, in
particular, in literary, dramatic, musical or artistic works, but in order to obtain copyright
protection it is necessary for the work to be in some tangible form because there is no
protection for ideas.

 Norowzian v. Arks Ltd. This English case lays down that a film or a motion picture can
also qualify as a dramatic work.The Court of Appeal observed that for a dramatic work it
must be "capable of being performed before an audience" and in enabling such capability
the workmay not necessarily involve physical performance by a human being but can
include performances by artificial means such as the playing of a film. The Claimant in the
 case had directed a short film with no dialogue titled Joy in the year 1992. The striking
feature of film was the visual effect in the nature of apparent sudden changes in the position
of the protagonist (the hero) while dancing to music. This special effect was produced by
using an editing technique known as "jump cutting". The Trial Court held that a dramatic
work is one which was capable of being ‘physically’ performed. However, the Court of
Appeals interpreted the requirement that a dramatic work must be "capable of being
performed" quite liberally to include performances by artificial means such as the playing
of a film as well. The Court held that,the film is a work of action and it is capable of being
performed before an audience, therefore it qualifies as a dramatic work.

 Fortune Films International v. Dev Anand – In the instant case, the Bombay High Court
has held that motion picture is not a dramatic work within the meaning ofSection 2 (h) of
the Indian Copyright Act, 1957. The plaintiff (Dev Anand) in the case argued that a
cinematographic film comprises of several dramatic works. Most of the drama in the film
ensues from the performance or acting demonstrated by the cine artist. Therefore, every
dramatic element should qualify and be protected as a dramatic work defined under Section
2 (h) of the Act. The Court held that though the definition is inclusive, yet it cannot be
stretched to include every exertion or effort of a dramatic nature. The definition cannot be
interpreted to include a motion picture in line with a piece of recitation or choreography or
entertainment in dumb show.Hence motion picture was held not to be a dramatic work.

 Green v. Broadcasting Corporation of New Zealand - :This English case clarifies the
position of television formats as a dramatic work. The Privy Council held that the work or
format in question must have sufficient unity to be capable of performance before an
audience, and this was lacking in the "dramatic format" of the television show titled
‘Opportunity Knocks. The author and compere (Green) of a talent show titled Opportunity
Knocks sought to prevent the Broadcasting Corporation of New Zealand from using a
similar show format under the same name. Other similarities between the two shows
included features wherein sponsors were to introduce contestants to the viewers, a
"clapometer" device as a means of assessing audience reaction and catch-phrases used by
the compere such as “This is your show, folks, and I do mean you” to capture the attention
of the viewer. The Privy Council refused to recognize that copyright subsisted in the scripts
or "dramatic format" of the show Opportunity Knocks. The Court observed that the show’s
format lacked sufficient unity and also certainty with respect to the subject matter.

The Copyright Act, 1957 provides that “dramatic work” includes any piece for recitation,
choreographic work or entertainment in dumb show, the scenic arrangement or acting form of
which is fixed in writing or otherwise but does not include a cinematograph film. Since the
definition is an inclusive one, thus, other things which fall within the general meaning of a dramatic
work, may also be covered by the definition. “Dramatic work” is in the nature of physic al
manifestation of such recitation of choreographic work or entertainment but does not include a
cinematograph film. When someone does those acts as mentioned in Section 2(h) physically and
live, and is not a photographic imprint thereof, it would mean dramatic work.

Musical Works

Section 2(p) of the Indian Copyright Act defines musical work to mean a work consisting of music
and includes any graphic notation of such work but does not include any words or any action
intended to be sung, spoken or performed with the music. The requirement of fixation in graphical
notation within the definition of musical works has been done away with. The definition seeks to
cover all forms of music irrespective of it being fixed. The definition of a musical work clarifie s
that it does not include words intended to be sung or spoken with the music or action intended to
be performed with the music.

Cases-

 In Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Assn., -
Justice Krishna Iyer observed “copyrighted music is not the soulful tune, the superb
singing, the glorious voice or the wonderful rendering. It is the melody or harmony reduced
to print, writing or graphic form. The Indian music lovers throng to listen and be enthralled
or enchanted by the nada brahma, the sweet concord of sounds, the raga, the bhava, the
laya and the sublime or existing singing.”

 Gramophone Company of India Ltd. v. Super Cassette Industries Ltd., Delhi High
Court observed: “Musical work” is not merely a combination of melody and harmony or
either of them. It must necessarily also have been “printed, reduced to writing or otherwise
graphically produced or reproduced”. As we know figurations, progressions and rhythmic
patterns are sometimes used in creation of melodies. Every musical composition has a
structure, or shape, that is, the arrangement of individual elements so as to constitute a
whole and that musical notation means a visual record of musical sound (heard or
imagined) or a set of visual instructions for performance of music. Its main elements are
pitch (location of musical sound on the scale), duration, timbre, and volume. There are
various systems of notation like verbal, alphabetical, numerical, graphic and tablatures.
The words “printed, reduced to writing or otherwise graphically produced or reproduced”
are thus not an empty formality.’
Q. If a dramatic work may include music, then will the music be entitled to a separate copyright?

Answer: Yes, notwithstanding that the music also forms an integral part of the dramatic work, it
shall be entitled to a separate copyright protection as a musical work.

Adaptation
Section 2(a)(iv) defines “adaptation” as stated below “adaptation” means, “in relation to a musical
work, any arrangement or transcription of the work; ” Hence, according to section 2 (a) (iv)
‘Adaptation’ in relation to musical works means ‘any arrangement or transcription of the work’.
Copyright subsists in arranging music by adding accompaniments, new harmonies, new rhythm
and the like, and transcribing it for different musical forces.

Arrangement:

It refers to a musical work which resulted from the rearrangement of an existing musical work.

Transcription:
In relation to music it may be defined as an arrangement of a musical composition for some
instrument or voice other than the original.
For instance Franz Liszt, a prolific 19th-century Hungarian composer, was the greatest arranger in
the history of music. About half of his more than 800 known piano compositions are arrangeme nts
of his own or other composers' music. Schubert song transcriptions, Beethoven symphony
transcriptions and paraphrases of operas by Mozart, Bellini, Donizetti and Verdi poured from his
pen. Had ld. Mr. Franz been alive in the present time, his arrangements could easily become the
subject matter of Copyright. In the similar manner, the best suited example of adaptation in today’s
time, are remixing of musical compositions, which involves alteration of original musical
composition by adding, removing, and/or changing the arrangement of such composition.

Sound recording

Sound Recording has been defined under Section 2(xx) as a recording of sounds from which such
sounds may be produced regardless of the medium on which such recording is made or the method
by which the sounds are produced

The sound recording should not infringe copyright in any other work. Example of a sound
recording is a CD-ROM.

Q. Does the audio recording of an e-tutorial qualify for separate copyright protection as a sound
recording?

Answer: Yes, if the audio recording is fixed on a medium such as a phonogram or CD ROM.
Q. What if there is no separate audio recording but it forms part of the audio-visual as a whole,
does it enjoy protection as a sound-recording as well?

Answer: Yes, the right of the sound recording is different from the subject matter recorded as they
are subjects of independent subject-matters.

Difference between Musical work & Sound Recording:

It has been observed that few of the applicants, while filing the copyright registration applicatio ns,
face difficulty in differentiating between Musical Works and Sound Recording Works. As
observed by the Hon’ble Supreme Court in Indian Performing Rights Society v. Eastern Indian
Motion Pictures Association [AIR1977 SC 1443] “In a musical work “Copyright is not the
soulful tune, the super singing, the glorious voice or the wonderful rendering. It is the melody or
harmony reduced to printing, writing, or graphic form.”

Sound Recording has been defined under Section 2(xx) as a recording of sounds from which such
sounds may be produced regardless of the medium on which such recording is made or the method
by which the sounds are produced. A Sound Recording Copyright may be claimed in the aggregate
of sound embodied in any tangible medium, including phonograph discs, open-reel tapes,
cartridges, cassettes, player piano rolls, and other material of objects in which sound are fixed and
can be communicated either directly or with the aid of machine or device.

When a graphical notation of a musical work is recorded in any medium from which sound may
be produced, it amounts to Sound Recording. The author of a sound recording work is the Producer
of the sound recording, as opposed to Composer being the author of Musical Work. ‘Producer’ has
been defined under Section 2(uu) as in relation to a cinematograph film or sound recording, means
a person who takes the work the initiative and responsibility for making. For example: When a
composer develops a melody which is represented as a sheet music (which may include Western,
Swaras, or any other form of graphical musical notation) it will be registered under Music category.
However, when the same melody is recorded in CD, Flash Drives or any other medium of
recording in which sound are fixed and can be communicated either directly or with the aid of
machine or device, the said recording will become registrable under the Sound Recording category.

Artistic Works

Section 2(c) of the Indian Copyright Act defines artistic works as:

“(c) “artistic work” means,—

(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a
photograph, whether or not any such work possesses artistic quality;
(ii) a [work of architecture]; and"
(iii) any other work of artistic craftsmanship;”

To be protectable as an artistic work, the work ought to satisfy the prerequisite of ‘originality’ as
defined in the Act. No artistic quality is required. Therefore anybody who can paint an origina l
artwork can be entitled to copyright protection from the time the artwork has been created by
him/her. Copyright law while attributing authorship to a painter does not delve into the subjective
assessment of how good or poor an artwork is. That kind of assessment is left to be made by
connoisseurs and dealers of art, and is understood to be outside the purview of copyright law.
Similarly works of architecture are protected as artistic work as long as they are originating from
the author, i.e., the architect. Architectural drawings, diagrams, charts, maps, plans and even
circuit diagrams are all protected as artistic works. However, one must take note that the building
or structure which constitutes a work of architecture is built on the basis of a plan which enjoys a
separate copyright apart from the copyright in the building itself.

Is a straight line drawn with the help of a ruler a drawing, and therefore protectable as artistic
work?

Answer: In the case of British Northdrop v. Texteam Blackburn Ltd, it was held that one should
be a little slow to exclude drawings from copyrightability on the mere score of simplicity. Apart
from the cases of barren and naked simplicity like a straight line, a simple work should be held to
be copyrightable.
A sculpture would be an example of a work of artistic craftsmanship. Copyright law affords
protection to the work involving the art of carving, modeling, welding or otherwise producing
figurative or abstract works of art in three dimensions as long as this work originates from the
sculptor.

Q. Are sets of machine made replicas of the Taj Mahal sold as décor items capable of being
protected as works of artistic craftsmanship?

Answer: No. Machine made replicas are not considered artistic craftsmanship.

Photographs

A photographic work includes any photo lithograph or any work produced by any process
analogous to photography (but does not include any part of a cinematographic film). A photograph
must be original in order to attract copyright and some degree of skill and effort must have been
expended on it. A mere copy of a photograph made on photocopying machine would not qua lify
for copyright protection as there would not be enough independent skill or labour employed on it.
Where a photograph of some common place has been taken, it will be open to the rest of the world
to have recourse to that object and take a similar photograph from the same angle. But where the
photographer has extended skill and time in arranging the grouping of the figures, the lighting and
so on, there may be an infringement of copyright if someone consciously repeats the process so as
to arrive at substantially the same result.

Q. Does a photograph of an already existing photograph enjoy copyright protection?

Answer: No. A photograph of an already existing photograph is not an original work. Therefore it
will not be afforded copyright protection.

Q. Is a painting based on scenery captured in a photograph an infringement of the copyright in the

photograph?

Answer: No. However if the photograph itself is found to be not original, then a painting based on
such photograph is not an infringement. For discussion on this point, one may refer to the case of
Bauman v Fussell where a photograph of bird fight was held to be not original and hence a
painting based on it was not an infringement.

Cinematographic Works

Section 2(f) explains that any work of visual recording on any medium produced through a process
from which a moving image may be produced by any means and includes a sound recording
accompanying such visual recording and ‘cinematograph’ shall be construed as including any
work produced by any process analogous to cinematography including video films.
Q. Does a remake of a foreign language film enjoy the same protection as the original version of
the film?

Answer: A remake of a foreign language film is a derivative work and even when authorized to
remake the film, in order for your remake to enjoy the same protection as the original version of
the film, it must display some originality of its own.
Q. What if the original version of the film above is in public domain now, can you still remake it?
And if you do, does your remake then enjoy a copyright protection as if it were an original?
Answer: if the original version of the film is in the public domain, anyone is free to remake it.
However, in order for this remake to enjoy copyright protection it must contain sufficient new
expression over and above that embodied in the older version. Originality is sine qua non of
Copyright law.

Q. Is the e-tutorial accompanying a module of learning a cinematographic film?

Answer: Yes. The e-tutorial is a visual recording on camera produced through a process from
which a moving image of the tutor may be produced and includes a sound recording accompanying
such visual recording. Therefore it is a cinematographic film.
 Under traditional principles of intellectual property protection, copyright law has served as the
principal source of legal protection for literary and artistic work, while the patent system and trade
secret law have been the primary means for protecting utilitarian works. Computer software as a
relatively new recipient of copyright protection, however, defies easy categorisation within the
traditional framework of the intellectual property system. 1

With respect to computer software, courts have had to grapple with the vexatious issue of drawing
a precise line between copyrightable expression of computer software and the uncopyrightab le
processes that they implement. The present paper seeks to study some of these themes and the
principles enunciated in judicial decisions in clarifying the issue.

Computer software as literary work

It is a well-established proposition that computer programs are copyrightable subject-matter, just

like any other literary work. Loading a program into computer memory, saving the program or
running it without authority may infringe copyright. Making an arrangement or altered version of
the program or converting it into or out of one computer language or code into a different comput er
language or code is also an infringement.

Article 10 of the Trade Related Intellectual Property Rights Agreement (TRIPs) expressly provides
that computer programs, whether in source code or object code shall be protected as literary works
under the Berne Convention, 1971. The relevant provisions of the Copyright Act, 1957 which are
pertinent in this context are set out hereunder:

"2. (ffb) 'computer' includes any electronic or similar device having information processing
capabilities;

(ffc) 'computer programme' means a set of instructions expressed in words, codes, schemes or in
any other form, including a machine readable medium, capable of causing a computer to perform
a particular task or achieve a particular result;

Section 14 explains the meaning of copyright.

Thus, under Indian copyright law, computer programs are considered to be literary works and
accordingly entitled to copyright protection..

Principally copyright protection can only be attributed if the same passes the test of “originality”,
similarly our act also has the same requirement, with respect to computer programs the Indian act
provides protection if the same does not result in a technical effect and is not a computer program
per se because the same lies within the territory of patents law. Therefore it can be inferred that
usually copyright protection is granted to such computer program (software) that does not produce
technical effect. Thus for a computer software to be original, it has to be shown that adequate effort
and skill have gone into it to convey it originality. But this criteria excludes those program that
merely create multiplication tables or algorithms as they do not possess the amount of effort
essential for protection. The term ‘original’ has not been defined anywhere in the Act and the same
is construed in the light of case laws. Originality for the purpose of copyright law to the expression
of thought, not originality of ideas; and in case of literary work, with the expression of thought in
print or writing (in a concrete form). In the case of Eastern Book Company v. D.B. Modak
Supreme Court held that "collection of material and addition of inputs in the raw text does not give
work a flavour of minimum requirement of creativity, as skill and Judgment required to produce
the work trivial. To establish copyright, the creativity standard applied is not that something must
be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required
- Selection and arrangement can be viewed as typical and at best result of the labour, skill and
investment of capital lacking even minimal creativity, which does not as a whole display suffic ie nt
originality so as to amount to an original work of the author. To claim copyright, there must be
some substantive variation and not just a trivial variation, not the variation of the type where
limited ways of expression available and author selects one of them. Inputs put by the Appellants
in the copyedited Judgments do not touch the standard of creativity required for the copyright.
However inputs and task of paragraph numbering and internal referencing requires skill and
Judgment in great measure having a flavour of minimum amount of creativity. Further putting an
input in form of different Judges' opinion shown to have been dissenting or partly dissenting or
concurring, etc. requires reading and understanding the questions involved Appellants have a
copyright, which nobody can utilize." The court laid down that for a work to qualify as original, it
has to be shown that some amount of creativity has gone into making the work alongwith labour
and skill put in by the creator.

Supplementary to the originality criteria, a computer program also has to accomplish obligation of
first publication as stated in the Act. Further Section 3 provides the meaning of publication as
“making a work available to the public by issue of copies or by communicating the work to the
public” or if the work is published outside India the author on the date of publication or if the
author is dead at the time of his death should be a citizen of India. This requirement of publicatio n
is analogous to the fixation requirement in other jurisdictions. Applying this analogy to computer
programs it can inferred that computer program are the instructions that can be expressed either in
words, codes, schemes or in any other form, including a machine readable medium, thus by not
adhering to anyone criteria of fixation the law seems to be open minded and broad and seems to
be favouring such grant of copyright protection top computer programs. As far as unpublis hed
works are concerned, the author must be a citizen of India or domiciled in India at the date of
making of the work. The government of India passed the International Copyright Order, 1958
whereby any work first published in any country which is a member of the Berne Convention or
the UCC (Universal Copyright Convention) will be rendered the same treatment as if it was first
published in India.
In the case of Tata Consultancy Services v. State of Andhra Pradesh, the Supreme Court
considered computer software is intellectual property, whether it is conveyed in diskettes, floppy,
magnetic tapes or CD ROMs, whether canned (Shrink-wrapped) or uncanned (customized),
whether it comes as part of computer or independently , whether it is branded or unbranded,
tangible or intangible; is a commodity capable of being transmitted, transferred, delivered, stored
, processed , etc. Thus this decision shows that the courts are not that strict when it comes to
fixation requirement for grant of protection to software and it can be done in any manner acceptable
in general parlance.

As regards the scope of protection provided to computer programs, the protection offered to a
copyrighted work is protection in respect of the ‘form and substance’ of the work and not the idea
behind the work. It would be the right time to mention that India does not have a statute specifica lly
dealing with idea-expression dichotomy, but nevertheless it exists and the same is construed by a
broad reading of Section 13 that talks about the works in which copyright subsists and goes on to
include all the works like literary, artistic, dramatic etc. This Section 13 coupled with the express
definitions of all these works as elucidated in the act provide an understanding that it is only the
fixed form of the work either in writing or codes or schemes are protectible as works, thereby
indicating that it’s the expression that can be protected and not the idea. So, applying the above-
mentioned principle with respect to computer software, the word “expressed” as provided in
Section 2(ffc) while defining computer programs provides that it is the expression that is protected
and not just the idea. Thus, the owner of the copyright of a computer program possesses the right
to stop any other person from physically copying the code, as it is written, but cannot avoid the
utilisation of the idea behind the code, if the person who takes the idea expresses it in a manner
very different from the former. Hence, it becomes obvious that the copyright over a computer
program does not permit the author to bar other programmers or developers from producing the
same type of program in a different form and structure. Therefore it is obvious that our law
specifically takes literal copying as an infringement of copyright, but it’s the nonliteral copying
that poses a problem. There are not many decisions given by Indian courts with regard to non-
literal copying and the determination of such infringement, involves an analysis of the
idea/expression dichotomy.

The decision laid down in the case of R. G. Anand v. Delux Films & Ors. wherein the Supreme
Court developed a test for determining non-literal infringement in case of plays but the same
analogy can be applied in case of computer programs as well. In this case the court stated that our
copyright law advocates the idea-expression dichotomy. It was held by the court that the best test
to decide whether or not there has been infringement 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.” A
layman’s interpretation would suggest that the court is endorsing a type of ‘look and feel’ approach
when it talks about “impression”, although it has gone to a large extent to identify that there can
be various levels of abstraction. Also the comparison between the two works is in context of
expression i.e. the manner in which the two works exist and not the idea. In addition to the
abovementioned test the court also laid another criteria and stated that, “where the theme is the
same but is presented and treated differently so that the subsequent work becomes a completely
new work, no question of violation of copyright arises”. Applying this to computer programs, it is
found that even if there are similar themes at various levels of abstraction but the expression differs
than there would be no infringement as the same would qualifies as ‘a completely new work’.
Lastly, the court held that for determination of substantial copying a comparison is to be made and
then weigh in the similarities and dissimilarities by listing them individually. The test states,
“where the same idea is being developed in a different manner, it is manifest that the source being
common, similarities are bound to occur. In such a case the Courts should determine whether or
not the similarities are on fundamental or substantial aspects of the mode of expression adopted in
the copyrighted work. If the defendant’s work is nothing but a literal imitation of the copyrighted
work with some variations here and there it would amount to violation of copyright. In other words,
in order to be actionable the copy must be a substantial and material one which at once leads to
the conclusion that the defendant is guilty of piracy.” First, by using the phrase “literal imitatio n”
the idea/expression dichotomy has been strongly invoked and in the context of computer programs
infringement they mean that functional interfaces do not form part of this “literal imitatio n”.
Second, the degree of similarities of ‘literal imitation’ should not be more than minor variatio ns.
Thus this case laid down the criteria for literal as well as non-literal copying.

Computer programs are accorded express protection under Copyright law in India, but the scope
of protection i.e. whether it includes the literal as well as non-literal elements of the program, is
still ambiguous and the same needs to be determined by courts. In such a situation it is not
conceivable to say with certainty that the test laid down in Altai case would automatically be
relevant in case of copyright infringement in the India, but the rationale and ideas set out therein
would be extremely influential. This is particularly so keeping in mind TRIPs that incorporates by
reference the principles preserved in the Berne Convention, copyright law has now become
increasingly synchronised across all jurisdictions. Thus, principles articulated by the courts of a
foreign jurisdiction can enlighten the operation of copyright law in India as well, and it would not
be inapt to refer to the Altai values to understand the range of copyright protection in computer
programs in India.

USA Cases

Distinction between form and idea

Under both the Indian and American systems of law, the protection available to a copyright-
protected work is protection in respect of the form and substance of the work and not
the idea behind the work. Therefore, applying this principle in context of computer software, the
owner of the copyright over an item of software has the right to prevent any other person from
physically copying the code, as it is written, but does not have the right to prevent the utiliza tio n
of the idea behind the code, provided the person utilizing this idea does so in a manner that is
different from his arrangement of the code. Thus, it is necessary to note that unlike the case of a
patent over a mechanical product, the copyright over an item of software code does not entitle the
author to prevent another software developer from producing the same type of software in a
different form and structure.s

However, at the same time, it needs to be stated that the point where the idea translates itself into
the expression of an idea is an issue that has been the subject of judicial scrutiny by courts in USA.
The following principle was laid down in Apple Computer Inc. v. Franklin Computer Corpn:

"Just as a patent affords protection only to the means of reducing an inventive idea into practice,
so the copyright law protects the means of expressing an idea; and it is as near the whole truth as
generalization can usually reach that, if the same idea can be expressed in a plurality of totally
different manners, a plurality of copyrights may result, and no infringement will exist."

Interpreting this principle, it has been concluded that the basis for the determination of the
copyrightability of a software program was affirmed as being the intellectual property right,
inherent in the form and substance of the instructions to the computer and not to the idea behind
their arrangement. This would imply that creative copying of the instructions so as to result in the
same program being developed through the use of different lines of code would be deemed to be
not a violation of the copyright in the program, as the copyright vests in the instructions themselves
and not the end product.

Non-literal copying

The next issue that needs to be considered in this context is as to exactly what type of software
reproduction is hit by the offence of infringement of copyright, particularly in cases where the
alleged infringer had not copied the code line by line, but had taken something less specific. In this
regard, various tests have been developed by courts in USA, in order to arrive at a conclusion as
to the type of software and the extent to which it could receive protection. One such test has been
to discern whether the look and feel of the two programs was the same. If the answer to that
question was in the affirmative and if it could be shown that the defendant had access to the
plaintiff's program, copyright infringement was likely to have occurred.

The Whelan test

The question whether there could be copyright infringement in copying the "overall structure" of
a program, even if neither the object code nor the source code of the program had been copied
came to be examined by the US Court of Appeal, for the Third Circuit in Whelan Associates
Inc. v. Jaslow Dental Laboratory, Inc. In this case, the alleged infringer rewrote a program that
was originally coded in a particular computer language in a different programming language.
While evolving the look and feel test the court concluded (on the basis of prior decisions that had
held that there could be infringement of copyright in a play or book by copying the plot or plot
devices of the play or book when the total "concept and feel" of the alleged infringing work was
substantially similar to that of the copyrighted work) that the said test should apply to infringe me nt
of copyright in computer programs.

The court also concluded that the detailed structure of a program was part of the expression of an
idea than the idea itself, and therefore, the copying of the expression of the idea in the program
would amount to an infringement of copyright. The principles laid down by the court in Whelan
case can be summarised as hereunder:

> Copyright programs are classified as literary works for the purposes of copyright.

> The copyrights of other literary works can be infringed even when there is no substantia l
similarity between the work's literal elements. One can violate the copyright of a play or a book
by copying its plot or plot devices. Copyright "cannot be limited literally to the text, else a
plagiarist would escape by making immaterial variations".

> Among the more significant costs in computer programming are those attributable to developing
the structure and logic of the program.

> Allowing copyright protection beyond the literal computer code would provide the proper
incentive for programmers by protecting their most valuable efforts, while not giving them a
stranglehold over the development of new computer devices that accomplish the same end.

> It is not true that "approximation" of a program short of perfect reproduction is valueless. On the
contrary, one can approximate a program and thereby gain a significant advantage over
competitors even though additional work is needed to complete the program.

> The issue in a copyrighted case is simply whether the copyright- holder's expression has been
copied, not how difficult it was to do the copying. Whether an alleged infringer spent significa nt
time and effort to copy an original work is therefore irrelevant for decision as to whether he has
pirated the expression of an original work.

> The conclusion is inescapable that the detailed structure of a program is part of the expression,
not the idea of that program. Copyright protection of computer programs may extend beyond the
program's literal code to their structure, sequence and organisation.

The test laid down in Whelan case came to be known as the "structure, sequence and organisatio n"
test, since the court held that copyright protection of computer programs may extend beyond the
programs' literal code to their structure, sequence and organisation.
The Altai test for infringement

However, this test was not adopted by the Second Circuit Court of Appeals which propounded a
new test in Computer Associates v. Altai. In this case, OSCAR 3.5 was the product of Altai's
carefully orchestrated rewrite of OSCAR 3.4. None of the ADAPTER source code remained in the
3.5 version; thus ALTAI made sure that the literal elements of its revamped OSCAR program were
no longer substantially similar to the literal elements of Computer Associate's ADAPTER source
code. While examining the question as to whether ALTAI'S OSCAR 3.5 was substantially similar
to Computer Associate's ADAPTER program, the following points were established by the court
in Altai case2:

> It is essential for protection of literary property that copyright cannot be limited literally to the
text, else, a plagiarist would escape by making immaterial variations. Thus, where "the
fundamental essence or structure of one work is duplicated in another", courts have found
copyright infringement.

> Those aspects of a work which "must necessarily be used as incident to" the idea, system or
process that the work describes, are also not copyrightable. Therefore, those elements of a
computer program that are necessarily incidental to its function are similarly unprotectable.

> The principle laid down in Whelan that the non-literal elements of computer programs was
entitled to copyright protection as literary works, is acceptable.

> The Whelan rule had received a mixed reception in American courts. While some decisions
adopted its reasoning, others had rejected it.

> A computer program's ultimate function or purpose is the composite result of interacting
subroutines. Since each subroutine is itself a program, and thus, may be said to have its own "idea",
Whelan's general formulation that a program's overall purpose equates with the program's idea is
descriptively inadequate.

> The rationale of Whelan case was suspect with the passage of time since its opinion was based
on a somewhat outdated appreciation of computer science.

A three-stage test was therefore formulated in order to determine whether the non-literal elements
of two or more computer programs are substantially similar:

(i) The abstraction test

In ascertaining substantial similarity under this approach, a court would first break down the
allegedly infringed program into its constituent structural parts.
The abstraction test "implicitly recognises that any given work may consist of a mixture of
numerous ideas and expressions". As applied to computer programs, the abstraction test will
comprise the first step in the examination for substantial similarity. Initially, in a manner that
resembles reverse engineering on a theoretical plane, a court should dissect the allegedly copied
program's structure and isolate each level of abstraction contained within it. This process begins
with the code and ends with an articulation of the program's ultimate function. Along the way, it
is necessary to retrace and map each of the designer's steps in the opposite order in which they
were taken during the program's creation.

(ii) The process of filtration

Then, by examining each of these parts for such things as incorporated ideas, expression that is
necessarily incidental to those ideas and elements that are taken from the public domain, a court
would then be able to sift out all non-protectable material. Strictly speaking, such filtration serves
"the purpose of defining the scope of the plaintiff's copyright".

 Under the doctrine of incorporation/merger, "where there is essentially only one way to
express an idea, the idea and its expression are inseparable and copyright is no bar to
copying that expression" Under these circumstances, the expression is said to have
"merged" with the idea itself. In order not to confer a monopoly of the idea upon the
copyright owner, such expression should not be protected. The American Congress
established the National Commission on New Technological Uses of Copyrighted Works
(CONTU) to study the implications of the new technologies and recommended revision to
federal intellectual property law. CONTU recognised the applicability of the merger
doctrine to computer programs in its report to Congress thus:
"Copyrighted language may be copied without infringing when there is but a limited
number of ways to express a given idea.... In the copyright context, this means that when
specific instructions, even though previously copyrighted, are the only and essential means
of accomplishing a given task, their later use by another will not amount to infringeme nt. "
 The court has also held that where it is virtually impossible to write about a particular
historical era of fictional theme without employing certain "stock" or standard literary
devices such expression is not copyrightable. In many instances it is virtually impossib le
to write a program to perform particular functions in a specific computing environme nt
without employing standard techniques. It follows that such standard techniques are not
copyrightable and will have to be filtered out.
 The court will also have to filter out elements dictated by concerns of efficiency. In the
context of computer program design, the concept of efficiency is akin to deriving the most
concise logical proof or formulating the most succinct mathematical computation. Thus,
the more efficient a set of modules are, the more closely they approximate the idea or
process embodied in that particular aspect of the program's structure. While hypothetica lly
there might be a myriad number of ways in which a programmer may effectuate certain
 functions within a program, efficiency concerns may so narrow the practical range of
choice as to make only one or two forms of expression workable options. If there are only
a limited number of efficient implementations for any program task, it is quite possible that
multiple programmers, working independently, will design the identical method employed
in the allegedly infringed work.

Copyrightability of material in the public domain

The court in Altai has specifically dealt with copyrightability of computer software based on
material found in the public domain. Such material is free for the taking and cannot be appropriated
by a single author even though it is included in a copyrighted work. Quoting this general rule of
copyright, the court stated that it found no reason to make an exception to this rule for elements of
a computer program that have entered the public domain. Thus, a court must also filter out material
available in the public domain before it makes the final inquiry in its substantial similarity analysis.

(iii) Comparison

Left with a kernel, or possibly kernels, of creative expression after following this process of
elimination, the court's last step would be to compare this material with the structure of an allegedly
infringing program. Once a court has sifted out all elements of the allegedly infringed program
which are "ideas" or are dictated by efficiency or external facts, or taken from the public domain,
there may remain a core of protectable expression. The result of this comparison will determine
whether the protectable elements of the programs at issue are substantially similar so as to warrant
a finding of infringement.

Policy considerations

Demarcating the precise line between idea and expression ultimately impacts on the scope of
copyright protection afforded to a particular type of work, and therefore, any such line must
necessarily strike a judicious balance between "protection" and "competition". If programmers are
not guaranteed broad copyright protection for their work, they will not invest the extensive time,
energy and funds required to design and improve program structures. At the same time, it needs to
be understood that the interest of copyright law is not in simply conferring a monopoly on
industrious persons, but in advancing the public welfare through rewarding artistic creativity, in a
manner that permits the free use and development of non-protectable ideas and processes.

The Altai1 court also seemed to opine that patent registration, with its exacting upfront novelty
and non-obviousness requirements, might be the more appropriate rubric of protection for
intellectual property of this kind. With this rationale, the court concluded that the test formulated
by it which would have the effect of narrowing the scope of copyright protection was in accordance
with legislative intent and fundamental principles of copyright law.
English courts have also adopted a similar approach to the protection of computer software.

Conclusion

It is submitted that the narrow protection afforded to computer software under the law of copyright
as in Altai reflects the correct balance between the need to encourage creative work and also to
ensure that an undue monopoly which restricts free use and development of ideas is not created.
This is especially important given the fact that the term of copyrighted works in India is the lifetime
of the author of such works plus a period of 60 years. Such an extensive period of copyright
protection may be excessive and ill-suited to a computer program where the normal period of
obsolescence may be just a few years.