Copyright law is often understood to mean an exclusive right of the author of intellectual expression over their work be it- literary, artistic, musical or dramatic work – bestowing upon the author the power to control the production, publication and performance of such work. In essence, copyright law is said to regulate private interests and proprietary rights. However, this is a parochial understanding of copyright law that ignores the broader function it performs in regulating the production and exchange of information, to shape the social relation of communication. “Copyright law is conceived of a triadic relationship between the author, the work, and the public.” Viewing copyright law from the proprietary lens, only depicts one angle of copyright – that is, the engagement of the work with the author, but it fails to engage with a more rudimentary function of copyright law- that is, the relationship of the public with work or that of the public with the author.
In this article an effort is made to approach the question of theoretical justification of copyright law by making a shift away from Lockean “proprietary approach” towards a more “utilitarian approach”. Utilitarian approach better justifies the theoretical underpinnings of a copyright law – whereby the exclusive rights granted to the author is only a means used to maximise the creativity and cultural production of intellectual work. In other words, the exclusive right granted to the author is an incentive to encourage “creativity” and “promote the progress of useful arts” for financial return. Thus, public interest resides at the core of creation and exchange of intellectual expression. From a utilitarian perspective, it follows that the economic rights granted to an individual author are to ensure the wider social function of cultural exchange and interaction and to promote the social good flowing through public dialogue.
As per Locke, the copyright owner is entitled to the exclusive right of copyright in his/her work given the mental labour exercised by the author in its creation. Locke adheres to the idea that a person is entitled to hold property to the exclusion of the entire world if he has invested his labour in the creation or production of the property. This right, in turn, casts a correlative duty upon others- not to interfere with the enjoyment of the property. Justifying copyright from the Lockean perspective means equating the copyright in an intangible intellectual expression with a property right in tangible physical property. In the case of Hogg v. Scott, it was ruled by the Court that the defendant is not at liberty to use the plaintiffs work, in which plaintiff has invested his labour, as it would tantamount to taking away the product of another man’s labour or his property.
The doctrine of originality influenced by Lockean theory
The Lockean theory has defined the scope of copyright in many scenarios. In the case of Walter v Lane, the Lockean theory was relied upon to define the contours of “originality”. Lord Halsbury was of the opinion that law must not permit “one man to make a profit and to appropriate to himself the labour, skill and capital of another.” The court was of the opinion that as plaintiff has invested labour upon the work- it makes him the author of the work and further grants him the copyright to protect his work. Thus, copyright curtailed the defendants “desire to reap where they had not sown”. Lockean theory defined the standard of originality in terms of “sweat of the brow” or “industriousness” as against creativity. In other words, mere labour or industriousness was sufficient to rule the creation as original deserving protection of copyright. The case of University of London Press Ltd. v. University Tutorial Press Ltd concerned the question of copyrightability of mathematics question paper – which was said to be a compilation from a workbook and previous year questions. The court held that the question paper was copyrightable being original work as the framing of questions involved skill, judgement and labour. Similarly, in Sawkins v Hyperion Records Ltd, the court asserted the copyright of musicologist who has invested his labour and skill in editing music of a French composer by making an addition to the piece, amending bass line and making the correction to the notes in order to make the piece playable. In Burlington Home Shopping v Rajnish Chibber, a compilation of address prepared by investing time, labour and skill was held to be copyrightable as literary work.
Lockean theory – How Appropriate?
The Lockean theory alone is not appropriate to justify copyright, being contradictory to the Lockean proviso of “enough and as good” as well as the “no spoilage”. The enough and as good proviso entails a precondition of no loss to others- however, the Lockean theory defines the contours of copyright such that it gives an excessive right to the author of copyright. It would not be an exaggeration to say that it leads to the copyrightability of ideas, leaving no room for subsequent artists to progress and build further on that idea. Justice Hughes argues that a person’s use of an idea does not deplete the common but only expands it – however, this position does not hold good if we apply exclusive use of appropriation – as the same eviscerate the subsequent users of that idea. In doing so it violates the enough and as good proviso as subsequent artists are deprived of the opportunity to engage and build upon that “unique idea”- thus not leaving any scope for the transformation of original expression to create a new expression.
Further, it is also contrary to the no spoilage proviso – as holding the notion that ideas don’t rot is incorrect. In fact, ideas can perish just like plums – just like the values of plum deplete when they rot and become inedible by members of society, the value of an idea also depletes when it becomes outdated due to its non-dissemination and further development.
Focusing on the authors right creates a divide between the public and private, and individual and community, giving a false impression that copyright is concerned with the private side when the fundamental purpose of copyright is the maximization of cultural production for furthering the public interest. In addition to this, propertizing copyright redefines copyright along individualistic lines. The individualised account of ownership does not leave room for interactive and dialogic process of cultural creativity thereby hindering the social good. Individualising authorship and propertizing intellectual expression digress from the real rationale behind copyright law, that is, advancement for public interest. The Lockean theory completely misses out on the second angle of the triadic relationship, that is engagement of the public with work.
SCOPING COPYRIGHT LAW THROUGH UTILITARIAN LENS
In order to justify copyright from the public-work angle it is necessary to impose limitation upon the rights of the owner of the copyright. These limitations are fundamental to the purpose of copyright law. Excessive protection of the rights of original author runs contrary to the goal of maximizing cultural production, dissemination, transformation as well as consumption. I attempt to address the issue of justifying copyright from a public-work angle in a two-fold manner: firstly, by reconceptualizing originality such that it manifest social good and secondly, by talking about limitation and defences of copyright law- which expound the functional nature of copyright law.
The first step involves looking at the doctrine of originality– not solely from the perspective of labour invested but also inquiring about the modicum of creativity. This was to ensure that original artist get copyright for the intellectual expression involving creativity and not merely for “not copying” as well as to guard against over protection of rights of the author. The utilitarian perspective followed in the United States relies on minimum creativity. The principle of the modicum of creativity was first time applied in the US case of Fiest Publications, Inc. v. Rural Telephone Service Company, Inc. where the court was of the opinion that selection, coordination and arrangement of telephone directory do not satisfy the requirement of the modicum of creativity. The Court reached this decision as there is no creative way to arrange a telephone directory. In an Indian case of Eastern Book Co. v D.B Modak the court was of the view that in order to obtain copyright in compilation the author must manifest his skill and judgement and mere labour, or industriousness is not sufficient. The work need not be novel or non-obvious but must reflect minimum creativity. The Canadian Supreme court in Théberge v. Galerie D’Art du Petit Champlain Inc stressed upon the need to shift away from a pure author orientation approach, and emphasized on maintaining a balance between the rights of the author by obtaining a just reward for the creativity, and promotion of public interest in furtherance of promotion and dissemination of the work of art.
Although these cases marked a shift in jurisprudence away from the sole right-based approach – failed to depart from a natural right based reasoning and hence, were still influenced to an extent by the notion that defendant cannot reap where he has not sown. Thus, the scope of the subsequent artist to contribute to already existing knowledge pool by adding creativity to the existing expression in order to create new expression remained restricted.
The Supreme Court of Canada in the case of CCH v. Law Society of Upper Canada, finally redefined the originality doctrine. The court rejected both the originality standards – the one that has reduced originality to “not copying” as well as the “modicum of creativity”. In doing so the Court explained that the originality standard falls between these two extremes. The Court ruled that originality cannot be reduced to mean the author’s entitlement. It is a functional doctrine and thus its application should be guided by the purpose of the copyright system. CCH case thus provided an opportunity to develop originality standard in a manner that it coheres with the public policy goals.
Limitations on Authors Rights
Idea/expression dichotomy: In order to further the functional nature of copyright it is essential to maintain the dichotomy between the idea and expression. Otherwise, in the garb of intellectual expression, ideas would get monopolized. Baker v. Sheldon mark the origin of this doctrine wherein the court held that though the author of a book on bookkeeping has a copyright on his expression he cannot enjoy exclusive right on the manner of making and designing account books. Traditionally, there was no ambiguity between distinguishing idea from expression- as expression were nothing more than exact words used by the author. However, with time the distinction has become blurry and there is no way to draw a clear distinction separating idea from expression as was held in Nichols v. Universal Pictures Corp. The court in Nichol’s case came up with “abstraction test” to suggest that for expression to be granted the protection of copyright, they must be developed or depict enough transformation. The Indian Supreme Court dealt with an idea-expression dichotomy in the landmark case of R.G. Anand v. Delux Films and detailed that no copyright subsists in ideas, subject matter, themes, plots or historical or legendary facts, – the violation of the copyright in such cases are confined to the form, manner, arrangement and expression of the idea by the author. Further, when the idea is inseparable from expression, i.e., there is only one way to express that idea- such expression will not be copyrightable and treated as an idea; obligatory scenes are also treated similarly.
Defence of de minimis and Substantial Similarity: Nichol’s case, as well as RG Anand and several other cases, ruled, that in order to claim infringement of copyright, there needs to be a substantial similarity between the two works even though arising from the same idea. The test rested in how the ordinary audience perceives two work. Further, the defence of de minimis translated as “law isn’t concerned with trifles”- allows subsequent authors to use/take previous work if the degree of taking is insignificant or minimal. The same was ruled in the case of Francis Day & Hunter Ltd. v. Twentieth Century Fox Corp.
Fair use and Fair Dealing: Defence of Fair Use allows subsequent users to use the copyrighted work without authors consent, thereby limiting the author’s right to exclusive use. Fair use creates an exception for infringement if the use satisfies the four-factor test developed in the case of Folsom v Marsh. The reasoning of Folsom’s case later got codified under §107 of US Copyright Act. In order to decide whether the taking by the defendant could be excused as fair use, the Court considers the purpose and character of the use; nature of use; substantial similarity; and effect of the use on the market of both original and derivative work. Moreover, the use might satisfy only two factors and still amount to fair use – if there is enough trans-formativeness. In the case of Campbell v. Acuff-Rose Music, Inc, the US Supreme Court allowed the use of the hook line of the plaintiff’s song by the defendant. The court opined that even though the hook line constituted the heart of plaintiff’s work, the same is necessary for parodying a work and besides the hook line the work was completely transformed and hence saved by fair use. The doctrine is referred to as fair dealing in India and the UK and instead of a test, it lists the specific exception.
The purpose of above-mentioned and various other limitation and exception of copyright system including duration of copyright, public domain etc is to further the public interest by maximizing production and communication of intellectual work.
The copyright system when viewed through the lens of Lockean proprietary theory- results in excessive protection of rights of the author (in terms of fruits of their labour) and grants exclusive control to the author over their intellectual creation. This defeats the rights of subsequent users and the fundamental purpose of copyright law. The first step in the direction of expounding functional nature of copyright is to move away from individualism towards a utilitarian approach, in order to appreciate the social nature and value of an intellectual expression. The second step is to reconceptualize originality- and understand it in terms of a functional doctrine – a tool to promote the public interest, as the cultural expression and value generated through intellectual creativity cannot be divided among handful owners. Finally, we need to limit the rights of the owner of the copyright as well as the scope of copyright protection. The de minimis defence and fair use/dealing exception perform this integral function, by allowing the substantial use of copyrighted work – the limitations on authors rights and exception in terms of exclusive use ensures that copyright does not defeat its own ends. The defence of fair use and de minimis acknowledge the interactive nature of cultural creativity. It gives scope to further – use, transform and share the copyrighted work. Thus, these limitations are necessary to encourage the creation and realize the true purpose that copyright law serves- towards the author and society as a whole.
ABOUT THE AUTHOR
Shalini Sharma did her Masters (LL.M.) from NALSAR University of Law, Hyderabad with her specialization focussed on Intellectual Property Law and completed her B.B.A.LL.B(Hons.) from Alliance University, Bengaluru. She is the founder of the Blog Lawstorming!. Besides IPR her research interest includes Public Policy, Constitutional Law, and Criminal Law.