In the Supreme Court of India
(2008) 1 SCC 1
Eastern Book Company & ors.
D.B. Modak & ors.
Date of Judgement
12 December, 2007
The Hon’ble Mr Justice B.N. Agrawal; Hon’ble Mr Justice P.P. Naolekar
The judgment made an analysis of the concept of originality and creativity with respect to the work to be copyrighted under the Copyright Act,1957. As mentioned in the judgment “Copyright protection finds its justification in fair play. Copyright is a right to stop others from exploiting the work without the consent or assent of the owner of the copyright. A copyright law presents a balance between the interests and rights of the author and that of the public in protecting the public domain or to claim the copyright and protect it under the copyright statute. One of the key requirements is that of originality which contributes, and has a direct nexus, in maintaining the interests of the author as well as that of the public in protecting the matters in the public domain.”
Facts of the case
The petitioner, (appellant 1) Eastern Book Company, a partnership firm and EBC Publishing Pvt. Ltd. (appellant 2) are together engaged in printing and publishing various books in the field of law. One such publication of the appellant is the law report called ‘Supreme Court Cases” ( also called as the SCC), which has been continued since 1969, consists of all the reportable and non-reportable judgments, short judgments, orders, record of proceedings and directions of the Supreme Court. For the same, they procure Raw data (copies) of judgments from the office of registrar of the Supreme Court. The Law report used to publish copy edited versions of the judgments which include formatting, numbering, cross-referring and various other inputs to make it user friendly. It also includes inserting Headnotes, Long Notes, and footnotes which are done by Surendra Malik (appellant 3).
In 2004, the defendant Spectrum Business Support Ltd(Respondent 1) and Regent Datatech Pvt Ltd(Respondent 2) came out with a software called ‘Grand Jurix’ and ‘the Laws’ respectively publishing the same CD ROMs. They have been alleged to take the Appellant’s copy-edited version of the supreme court judgments as it is, thereby constituting infringement of appellants’ exclusive right towards it.
Background of the case
The petitioner first filed a Copyright infringement case before a single judge in the Delhi High Court to obtain a temporary injunction against the publishing of the appellants’ version of the judgments by the defendants. The Court after granting certain temporary injunctions ruled in favor of respondents after they applied for the vacation of the stay order saying that mere copying of supreme court judgments with some changes does not amount to originality and hence the work cannot be copyrighted. Respondents, however, conceded to agreeing on appellants copyright over the headnotes and they have excluded those from being published.
Unsatisfied by the judgment, the petitioners appealed to the division bench of the High Court and it was again ruled in favor of respondents because of the same reason that the ‘character of the judgment remains the same’ even after making corrections to it and ‘does not make it materially different’ from the original judgments. The bench held that copyrighting the edited version of supreme court judgments would unwantedly stretch the right of a person(here appellants) and would defeat the primary purpose of making the judgments public in the first place. The bench however added to the previous judgment that the headnotes, footnotes and editorial notes were appellant’s own creation and hence cannot be used by the defendants.
Discontented by the division bench’s decision, they resorted to appealing by way of a special leave petition before the supreme court of India against both the respondents which were heard together in the case discussed.
Statutory Provisions Involved
- Section 13 of the Copyright Act,1957.
- Section 14 of the Copyright Act,1957.
- Section 52(1)(q)(iv) of the Copyright Act,1957.
Issues before the Court
- What should be the standard of originality with respect to the derivative works (here the copy-edited version of supreme court judgments) to make the work eligible to be called the author’s original work and hence get protection under Copyright Act of 1957?
- Whether the whole copy-edited version of the judgment subject to copyright as claimed by the appellant as the whole of it being their original literary work or just the part added to the raw text?
Contentions put forward by the parties
By the Petitioner
- They claimed that copyright subsists in the law report ‘Supreme Court Cases’, the SCC, as a whole. The way the judgments are presented in the reports; includes footnoting, editorial notes, cross-referencing, selection, sequencing, and arrangement of the judgments, making it the original work of art in itself; entirely different from the actual raw data collected from the register of the supreme court.
- The work takes substantial labor, skill, capital, and infrastructure on the appellant’s part, making it eligible to be copyrighted under Section 13 of the Copyright Act and subsequently published on e-platforms under Section 14 of the Copyright Act,1957.
- The learned senior counsel submitted that Section 2(k) read with section 17 says that the government is the first owner of the judgments of the courts and Section 52(1)(q)(iv) provides that any person wanting to reproduce or publish it would not be liable for copyright infringement. But it also doesn’t suggest that in the event a person has modified the decisions of the court and published his rendition, some other individual is allowed to duplicate that person’s form of the decisions, significantly or in its completion.
- They also claimed that work done by the author is neither of trivial nature nor negligible irrespective of the amount of creativity put in by the author, Therefore the author has full right to claim copyright over his derivative work.
By the defendant
- The learned Counsel, Mr. PN Lekhi, of one of the respondents, submitted that because the reproduction of the cases of the supreme court does not lead to copyright infringement under Section 52(1)(q)(iv) of the Copyright Act. Therefore publication of judgments by the respondents does not lead to any copyright infringement. As far as the subsistence of copyright of the Appellants law report is concerned, the extensions did lack even minimal level of creativity or application of intellectual labor which is required to get copyright as per Copyright Act 1957.
- The learned counsel, Ms. Pratibha M. Singh, of the other respondent, pointed out the difference between law report and law journal. The law journal, it was stated lists the judgments verbatim with some inputs while a law report is the Author record of the judgment in his own words mentioning, the arguments put forward and the judgment given in the case. Therefore, the appellant’s work was claimed to be Law Journal and not Law Report. It was also stated that some minimal level of creativity is a prerequisite for copyright which the appellant’s content lack and hence cannot be copyrighted.
The judgment was ruled in favor of the appellants giving them exclusive right over their content prohibiting anyone to utilize it. The court ordered the respondents to sell their CD-ROMs with their own Headnotes, footnotes and editorial and in no way, they should be a copy of the appellant’s work. It further asked the respondents to 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, ‘dissenting’ `partly dissenting, etc. on the basis of reported judgments in SCC.
Ratio Decidendi :
It held that the derivative work should be more than just a copy of the original work and involve individual skill, labor,capital and a minimal level of creativity. In the said case the work is done by the author i.e. segregating the facts into separate paragraphs; adding paragraph numbering and indicating the concurring and differing opinion of the judges in a particular case requires a great measure of legal skill and judgment on the part of the author. It is an exercise of brain work to edit it in the given manner without breaking the chain of thought of the judgment, which can not in any possibility be a mechanical process. According to the court, this exercise and creation have a minimal level of creativity required for work to be eligible to be copyrighted under the Copyright Act of 1957.
The case set a new standard for the concept of Originality by making a balanced decision between the concept of ‘sweat of the brow’ and the level of creativity required to make your work subsist for copyright. The concept of Sweat of the brow as given by the Canadian judgment (CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 (1) SCR 339 (Canada) that set an extremely low standard for copyright eligibility and on the other hand concept of absolute novelty, as is required for a patent. The case laid down that a derivative work should not be a copy of the source but at the same has minimal creativity more than just labor and capital irrespective of the literary merit it has. The crux being for an author to apply for copyright for his work must be an ‘exercise of skill and judgment’ and not creativity, more than just an application of labor and capital.
“The views of the authors are personal“