Copyright Infringement - Substantial Similarity and Independent Creation

This rather lengthy post/article was sparked up by a recent discussion on LinkedIn that I was a ‘commenting’ party to.

In essence, party P1 wrote a post on LinkedIn regarding fancy and deceptive titles that people use on their LinkedIn profile, perhaps to impress others, and advising others not to feel left out or useless since many such titles are based on certifications given out by some education/ internship platforms ) that are quite easy to get.

The post sparked up quite some likes and comments. Very interestingly, one such comment was put by P2, who pointed to a post made by him only a few hours before at LinkedIn only that was almost identical to that of P1.

P2 pointed this out in the comments on P1’s post. To which P1 responded that he is glad that they both are on the same page. P2 however alleged ‘plagiarism’.

In response, P1 said his post was in response to a PM he had received by W1, and put up an edited snap of the PM. Indeed P1 had started his post with this. Further, W1 vouched for it.

Different people had different views. Legally, however, some suggested that a claim of copyright infringement lies, as maybe established by the Substantially Similar Test .

Intrigued, I decided to explore this further. My findings and thoughts hereunder, hope you the reader also find it of interest !

Originality lies at the heart of Intellectual Property and the protection it grants. Obviously, those who come up with original inventions, poems, paintings etc. need to be granted the fruits of their labor. While others who just copy and try to gain advantage should be penalized. This is pretty much whole of Intellectual Property law.

Copyright – as the name itself suggests, says that you copy in the ‘right manner’ . Else open yourself to the claims of copyright infringement. However, how exactly is this copying to be determined, if at all, is a more confusing landscape than other types of Intellectual Property. In Patents for instance, if one reaches, even if by own independent research and efforts an invention that has already been ‘claimed’ by another in a patent the first one reaps the benefits of the invention and not the latter. The law of ‘ first to file’ as is said, is pretty clear on this aspect. Which is why inventors are encouraged to file at the earliest, and even before they disclose their invention in public domain.

Copyright infringements and claims thereof however, are a more difficult kettle of fish. To begin with, in most jurisdictions there are no formal requirements to claim a copyright. It comes into existence the moment an idea is expressed ( or ‘fixed’ ) in medium that makes the expression available to the public, whether the public takes note of it or not, and whether it has any ‘artistic merit ‘ or not. For instance, I can think up a poem, etch it out on a stone in a forest where no one sees it, and claim copyright on it (subject , of course, to my ability to prove that I created that artifact in event of a dispute )

Human mind being pretty similar (mostly! ) it is quite possible that those with similar experiences will come up with articles that are pretty similar. For instance, presently many issues are cropping up around Force Majeur in Contracts. The concept, statutes and precedents being pretty much the same, there is quiet a possibility that one article would be close to another , even if the authors of both had no access to the article of another. So will it be appropriate to say that the ‘first’ author to publish his article has a copyright and all others are liable for claims of plagiarism and/or copyright infringement ?

Such issues have dogged jurists both in India as well as in other countries. The statutes, unfortunately, are of very limited help here and only precedents- with their inherent high level of subjectivity- provide some guideposts. One relied upon is the Substantially Similar Test ( or the SST ). As the Wiki says :

To win a claim of copyright infringement in civil or criminal court, a plaintiff must show:

– he or she owns a valid copyright

– the defendant actually copied the work, and

– the level of copying amounts to misappropriation.

Under the doctrine of substantial similarity, a work can be found to infringe copyright even if the wording of text has been changed or visual or audible elements are altered.

Let us see if our ‘case’ above passes the tests. Registration of a copyright serves , in most jurisdictions ( including India ), to establish prima facie evidence of a valid copyright. Both the posts do not have the registration so both score equally on that.

Did P1 actually copy the work ? The evidence by P2 is a public post made by P2. Which may or may not have been seen by P1 and there is no way to prove it one way or the other. P1, on the other hand, provides strong evidence of what inspired him to post as he did, and the evidence is backed by witness W1.

So on this point, P2 seems to be on a weak wicket.

However, it is not disputed that P2’s post appeared on LinkedIn before P1. So, does the ‘copying’ , if at all done, amount to misappropriation ?

Which brings us to the Substantial Similarity Test. The Indian Copyright Act does not define the term ‘Substantial Similarity’ . Chapter IX of the Act ( Infringement of Copyright) may be referred to but is of no help. So, what it means and how it is to be determined can only be gleaned from judicial precedents.

The landmark judgement on this aspect is R. G. Anand vs Delux Films . After discussing a series of Indian as well as foreign cases, the Judgement sets out that :

1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work.

2. 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 defendants work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the 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 an act of piracy.

3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to seeing 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.

4. 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.

5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.

6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.

7. Where however the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, a wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.

As is evident, above lays emphasis on a ‘viewer’s’ opinion, That of course, is a minefield since different viewers ( including the Honorable Judges ) may have different opinions on the same set of facts presented to them. If the work is short ( as in the case of these posts ), the ‘similarities’ can seem like a major portion.

However, Para 4 of above is critical to the case at hand ( in my opinion ). And sets the matter at rest. When both posts are viewed in totality, including the context in which P1 claims to have created his work, it is clear that :

The motivation and thrust of P1’s post is to advise W1 ( and general public ) not to be discouraged by fancy / deceptive titles since they are quite different ( and easier to get) than those offered via full time courses at Harvard, internship at J P Morgan etc ( which require much harder work ) . Such deceptive titles are used primarily to impress. Further, people should not use such deceptive titles since it demoralizes others.

The focus of P2’s post , on the other hand is to advise the public not to use deceptive titles as they are misleading. Many such are easily available via ( same institutes as referred by P1 ). Further they take away from the hard work of those who have the ‘ genuine thing’ , create misunderstanding, and are morally wrong.

As can perhaps be seen, while the ‘trigger’ of ‘deceptive titles’ is the same, its consequences- and responses to it- are presented and treated differently. So, no violation of of copyright arises.

That, of course, is my opinion.

Let us carry this discussion further. A situation can occur where the two works are identical. A short piece of music may, for example, have exactly the same set of notes , in the same sequence and at the same tempo, yet created by two different entities each claiming originality. What happens then ?

Which brings us to the concept of ‘independent creation’. Again, the term does not find explicit reference in the Indian Copyright Act. But some foreign cases have recognized it as a valid defense to a claim of copyright infringement. This is set out most forcefully in Chautauqua School of Nursing v. National School of Nursing, 238 F. 151 (1916) which states ( citing Drone’s treatise on Copyright ) :

“Works alike may be original. It is not essential that any production, to be original or new within the meaning of the law of copyright, shall be different from another. Whether the composition for which copyright is claimed is the same as or different from, or whether it is like or unlike, an existing one, are matters of which the law takes no cognizance, except to determine whether the production is the result of independent labor or of copying. Two or more authors may write on the same subject, treat it similarly, and use the same common materials in like manner or for one purpose. Their productions may contain the same thoughts, sentiments, ideas; they may be identical. Such resemblance or identity is material only as showing whether there has been unlawful copying. In many cases the natural or necessary resemblance between two productions which are the result of independent labor will amount to substantial identity. … But, notwithstanding their likeness to one another, any number of productions of the same kind may be original within the meaning of the law, and no conditions as to originality are imposed upon the makers, except that each shall be the producer of that for which he claims protection.”

In context of Indian Law, this is also set out ( though not as forcefully as above ) in Star India Private Limited v. Leo Burnett (India) Private Limited, Bombay High Court, 2002 which cites Copinger and Skone James on Copyright, Fourteenth Edition, para 7.98 as under :

The same Authors in the Fourteenth Edition in paragraph 7.98 have dealt with “Films”. The learned Authors have stated as under:

“It is an infringement of the copyright in a film to make a copy of it, or a substantial part of it, whether directly or indirectly and whether transiently or incidental to some other use. This includes making a photograph of the whole or any substantial part of any image forming part of the film. As with a sound recording, it is not expressly stated that copying of a film includes storing it by electronic means but again it is suggested that it does. Again, the copyright in a film is infringed if the recorded moving images are directly or indirectly copied but not if the same or similar images are recorded independently, for example by reshooting the subject matter of the film. Again, however, underlying works such as the screenplay may be infringed by such means.”

So, even if the works are identical, if there is no copying a claim of infringement may not stand.

This, of course, raises problems. How can ‘independent creation’ be proved ? And if the plaintiff cannot conclusively prove copying, can the defendant get away with even an identical work, as long as he can prove that his work was ‘independently created’ with no access to the plaintiff’s work ?

NOTE : My purpose in writing above is NOT to present anyone in an unfavorable light. Which is why names etc. are removed from this article, only links provided for any wanting to check out the original content. The purpose is, firstly to improve my own understanding of the subject; secondly to help any who reads this article; and thirdly to have balanced discussions on the subject so that all can learn. Corrections, comments, discussions accordingly are welcome ! Hopefully, it will lead to more useful learning instead of that indicated by ‘deceptive titles’ ??

This post is also put here.

(C) 2020, Hardeep Sodhi