Copyrights seem to be in the judicial limelight of late – we highly recommend that you read this earlier piece of ours if you haven’t already (why?), because one of India’s best judges (in our humble opinion) just delivered an important judgment while also referring to the same case and also because we here at Bridge Legal highlighted some important fundamentals pertaining to Copyrights which serves as a primer before getting into today’s opinion.

Is This Relevant to Me?

If you own a brand, work for one or just about create anything that you wouldn’t like anyone else to copy without your permission, this is relevant for you to know (especially if you haven’t registered your Copyright).

The bottom-line is that a 2012 judgment of the Bombay High Court stating that the prior registration of a Copyright is a necessary prerequisite to the filing of a Copyright infringement claim, has been decided as being, simply put, bad and incorrect law. That’s very good news for all creators of all content that can be considered to be Copyright protected even without formal registration.

If you own a brand, work for one or just about create anything that you wouldn’t like anyone else to copy without your permission, this is relevant for you to know (especially if you haven’t registered your Copyright).

Technical Elements of the Case Simplified

First off, if you’re a lawyer, we highly recommend that you read the judgment if possible – well articulated with a sound analysis, the forty-five page decision also takes us through the fundamentals of Copyrights, Trademarks, the concept of ‘passing off’ as well as how the judiciary and its hierarchies work. It’s a pleasure to read, if we may say so, even if viewed from just a literary viewpoint.

With that out of the way, the salient points are as follows:

1. Both Trademarks and Copyrights can subsist in parallel even if pertaining to the same work – they conceptually protect different kinds of rights and while Trademarks need to be registered in order to file a claim of infringement by another party or other parties, the same cannot be said for Copyrights, which need not be mandatorily registered prior to filing an infringement claim;
2. The law pertaining to Trademarks and Copyrights, while very similar, are also distinct and serve different purposes – Logic from one can’t blindly be applied to the other;
3. When deciding whether a Copyright infringement has taken / is taking place, the primary deciding factor is whether the purported copy and the purported original are indistinguishable to a layman (or woman) – merely because tweaks in design (font, colour, pictures, patterns, borders, et cetera) can be specified would not exclude the possibility of Copyright infringement;
4. Flowing from the previous point, once established that two or more products are similar to the naked eye and the normal person, and in the absence of registration of the Copyright (which would make the determination of infringement a lot easier), what needs to be considered is which work was created earlier (i.e., first) and more so who (or what, in case of other entities) the original creator of the work is;
5. The idea that prior registration is mandatory to file and sustain a Copyright infringement claim is flawed, perpetuated by an incorrect decision (per incuriam) of the Bombay High Court in 2012 that did not account for all the prevailing jurisprudence at the time;
6. A sole judge of a court can hold that a prior judgment, also decided by a sole judge, is per incuriam if such a decision is inconsistent with the rulings and holdings by higher courts / larger benches; and
7. The concept of ‘special courts’ whether under the law governing Trademarks or Copyrights is flawed – the only special right provided under these laws is that of filing an infringement claim in the jurisdiction of the plaintiff.

When deciding whether a Copyright infringement has taken / is taking place, the primary deciding factor is whether the purported copy and the purported original are indistinguishable to a layman (or woman) – merely because tweaks in design (font, colour, pictures, patterns, borders, et cetera) can be specified would not exclude the possibility of Copyright infringement

A Lot of That Still Sounds Technical – What Should I Keep in Mind if I Want to Protect My Work(s)?

Our primary suggestion to non-lawyers is to catalogue one’s work, possibly with a method of time-stamping and recorded for future reference to potentially prove originality. If you’re an organisation, please see to it that there is clarity on whether you or your employee(s) own the Copyrightable work in the first place (we shall cover the concepts of assignment and transfer in a later piece, we promise).

While this may seem like a very good thing, it does come with its own pitfalls, since future content creators can never be sure as to whether they are infringing Copyrights themselves.

While registration is always recommended, the courts and the law understand that not everyone has the foresight or the gumption to register a Copyright. While this may seem like a very good thing, it does come with its own pitfalls, since future content creators can never be sure as to whether they are infringing Copyrights themselves (it isn’t recorded on any registry compulsorily, remember?).

We therefore also recommend that there be enough market research gathered beforehand on whether one’s work even accidentally infringes the Copyright of another person / legal entity – Copyright claims can be expensive and more importantly extremely inconvenient to defend. Do also keep in mind that it’s advisable to employ a lawyer to analyse whether a conflict actually exists since the lens of the law can be very different from the trained viewpoint of an expert in the field – as oxymoronic as it sounds, judges seek to objectively view works as subjectively (from the perspective of an untrained individual) as possible.

Thank you for reading!