Eastern Book Company and Ors. v. D.B. Modak and Anr.
(2008) 1 SCC 1
Appellants were involved in the printing and publishing of various books relating to the field of law. One of the well-known publications was the law report “Supreme Court Cases”. The original Judgments were copy-edited by a team of assistant staff of the Appellant and various inputs were 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 prepared 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.
As per the Appellants contentions, SCC is a law report which carries 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 constitutes an ‘original literary work’ of the appellants in which copyright subsists under Section 13 of the Copyright Act, 1957 (hereinafter referred to as “the Act”) and thus the appellants alone have 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, is an infringement of the copyright in SCC within the meaning of Section 51 of the Act.
Respondent No. 1 had launched a software called “Grand Jurix” published on CD-ROMs and the Respondent No. 2 had brought out a software package called “The Laws” published on CD-ROMS.
As per the Appellants, all the modules in the Respondents’ software packages have been lifted verbatim from the Appellants’ work; the Respondents have copied the Appellants’ sequencing, selection and arrangement of the cases coupled with the entire text of copy-edited judgments as published in the 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 Respondents constitute infringement of the Appellants’ exclusive right to the same.
Single Judge – High Court of Delhi
No stay was given to the Appellants. However, before the Single Judge, the Respondents conceded that the Appellants have copyright in the head notes and as such they undertook not to copy these head notes in their CD-ROMs.
Division Bench – High Court of Delhi
The Division Bench modified the judgment of the Single Judge by directing the Respondents that they 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, which should not in any way be copy of the head notes of the Appellants. The Respondents were directed not to copy the footnotes and editorial notes appearing in the journal of the Appellants.
The Court did not accept the case of the Appellants that they have a copyright in the copy-edited judgments of the Supreme Court. Aggrieved by the decision of the Division Bench of Delhi High Court, the Appellants filed the present appeals by special leave before the Supeme Court.
The Appellants do not claim a monopoly in publishing judgments of the Supreme Court as they are being published by other publishers also without copying from each other publication. The Appellants claim that their copyright is in the copy-edited version of the text of judgments as published in SCC which is a creation of the Appellants’ skill, labour and capital and there are contributions/inputs/ additions of the Appellants in creating their version of the text of judgments as published in SCC.
Judgments published in the Supreme Court Cases is nothing but merely a derivative work based upon the judgments’ of the court, which lacks originality as it does not depict independent creation even a modicum of creativity. The inputs put by the Appellants are nothing but expressing an idea which can be expressed in a limited way and as such there cannot be a copyright.
For claiming protection of copyright in a derivative work, 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.
(1) What shall be the standard of originality in the copy-edited judgments of the Supreme Court which is a derivative work and what would be required in a derivative work to treat it the original work of an author and thereby giving a protected right under the Copyright Act, 1957 to the author of the derivative work ? and
(2) Whether the entire version of the copy-edited text of the judgments published’ in the Appellants’ law report SCC would be entitled for a copyright as an original literary work, the copy-edited judgments having been claimed as a result of inextricable and inseparable admixture of the copy-editing inputs and the raw text, taken together, as a result of insertion of all SCC copy-editing inputs into the raw text, or whether the Appellants would be entitled to the copyright in some of the inputs which have been put in the raw text ?
• Judgments delivered by the Supreme Court would be a government work and in the absence of any agreement to the contrary, the government shall be the first owner of the copyright in the judgments of the Supreme Court.
• Section 52(1) expressly provides that certain acts enumerated therein shall not constitute an infringement of copyright and Sub-clause (iv) of Clause (q) 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 other 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. The reproduction or publication of the judgments delivered by the Supreme Court by any number of persons would not be infringement of a copyright of the first owner thereof, namely, the Government, unless it is prohibited.
• The question, therefore, is whether by introducing certain inputs in a judgment delivered by a court it becomes “original copy-edited judgment” and the person or authority or company who did so could claim to have embodied the originality in the said judgment and the judgment takes the colour of original judgment having a copyright therein of its publisher.
• In many cases, a work is derived from an existing work. Whether in such a derivative work, a new copyright work is created, will depend on various factors. The required exercise of independent skill, labour and capital in its creation by the author would qualify him for the copyright protection in the derivative work.
• Copyright subsists in the copy-edited version of the text of judgments of the courts as published in law reports, which have been created by the application of skill, labour and capital which is not trivial or negligible. The inputs put in the copy-edited judgments in SCC, is a derivative literary work created from preexisting material of the judgments of the court which is in public domain. The exercise of independent skill, labour and capital in its creation by the author of such work, and the derivative literary work created by the expenditure of the independent skill, labour and capital of the Appellants gives them copyright in such creations. It is not necessary that work created should have a literary merit. The courts can only evaluate whether the skill, labour and capital actually employed, required in creating the work, is not trivial or negligible.
• The word ‘original’ does not mean that the Work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and in the case of literary work, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work. In deciding, therefore, whether a work in the nature of a compilation is original, it is wrong to consider individual parts of it apart from the whole. For many compilations have nothing original in their parts, yet the sum total of the compilation may be original. In such cases the courts have looked to see whether the compilation of the unoriginal material called for work or skill or expense. If it did, it is entitled to be considered original.
• Earlier decisions are the authority on the proposition that the work that has been originated from an author and is more than a mere copy of the original work, would be sufficient to generate copyright. This approach is consistent with the “sweat of the brow” standards of originality. The creation of the work which has resulted from little bit of skill, labour and capital are sufficient for a copyright in derivative work of an author. Decisions propounded a theory that an author deserves to have his or her efforts in producing a work, rewarded.
• The derivative work produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author. The inputs put by the Appellants in the judgments would have had a copyright had we accepted the principle that anyone who by his or her own skill and labour creates an original work of whatever character, shall enjoy an exclusive right to copy that work and no one else would be permitted to reap the crop what the copyright owner had sown. No doubt the Appellants have collected the material and improved the readability of the judgment by putting inputs in the original text of the judgment by considerable labour and arranged it in their own style, but that does not give the flavour of minimum, requirement of creativity. The exercise of the Skill and judgment required to produce the work is trivial and is on account of the labour and the capital invested and could be characterized as purely a work which has been brought about by putting some amount of labour by the Appellants. Although for establishing a copyright, the creativity standard applies is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. It does require a minimal degree of creativity. Arrangement of the facts or data or the case law is already included in the judgment of the court. therefore, creativity of SCC would only be addition of certain facts or material already published, case law published in another law report and its own arrangement and presentation of the judgment of the court in its own style to make it more user friendly. The selection and arrangement can be viewed as typical and at best result of the labour, skill and investment of capital lacking even minimal creativity. It does not as a whole display sufficient originality so as to amount to an original work of the author. To support copyright, there must be some substantive variation and not merely a trivial variation, not the variation of the type where limited ways/unique of expression available and an author selects one of them which can be said to be a garden variety. Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity. In our view, the aforesaid inputs put by the Appellants in the copy-edited judgments do not touch the standard of creativity required for the copyright.
• However, the inputs put in the original text by the Appellants in (i) segregating the existing paragraphs in the original text by breaking them into separate paragraphs; (ii) adding internal paragraph numbering within a judgment after providing uniform paragraph numbering to the multiple judgments; and (iii) indicating in the judgment the Judges who have dissented or concurred by introducing the phrases like ‘concurring’, ‘partly concurring’, ‘partly dissenting’, ‘dissenting’, ‘supplementing’, ‘majority expressing no opinion’, etc., have to be viewed in a different light. The task of paragraph numbering and internal referencing requires skill and judgment in great measure. The editor who inserts paragraph numbering must know how legal argumentation and legal discourse is conducted and how a judgment of a court of law must read. Often legal arguments or conclusions are either clubbed into one paragraph in the original judgment or parts of the same argument are given in separate paragraphs. It requires judgment and the capacity for discernment for determining whether to carve out a separate paragraph from an existing paragraph in the original judgment or to club together separate paragraphs in the original judgment of the court. Setting of paragraphs by the Appellants of their own in the judgment entailed the exercise of the brain work, reading and understanding of subject of disputes, different issues involved, statutory provisions applicable and interpretation of the same and then dividing them in different paragraphs so that chain of thoughts and process of statement of facts and the application of law relevant to the topic discussed is not disturbed, would require full understanding of the entire subject of the judgment. Making paragraphs in a judgment could not be called a mechanical process. It requires careful consideration, discernment and choice and thus it can be called as a work of an author. Creation of paragraphs would obviously require extensive reading, careful study of subject and the exercise of judgment to make paragraph which has dealt with particular aspect of the case, and separating intermixing of a different subject. Creation of paragraphs by separating them from the passage would require knowledge, sound judgment and legal skill. In our opinion, this exercise and creation thereof has a flavour of minimum amount of creativity. The said principle would also apply when the editor has put an input whereby different Judges’ opinion has been shown to have been dissenting or partly dissenting or concurring, etc. It also requires reading of the whole judgment and understanding the questions involved and thereafter finding out whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and partially agreeing to the view on a particular law point or even on facts. In these inputs put in by the Appellants in the judgments reported in SCC, the appellants have a copyright and nobody is permitted to utilize the same.
“For the reasons stated in the aforesaid discussion, the appeals are partly allowed. The High Court has already granted 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 is further directed by us 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 is modified to the extent that in addition to the interim relief already granted by the High Court, we have granted the above-mentioned additional relief to the appellants.”