It is settled law that as per the Idea-Expression doctrine, only an expression of an idea can be copyrighted and not the idea itself. However, there have been many instances regarding infringement of copyright wherein the concept expressed by an author was copied.
The originality requirement under the Act does not mean that the idea, thought or concept has to be original. What it means is that the mere expression of the same must be original, that is, the expression should originate from the author and should not be copied from somewhere as discussed in Fateh Singh Mehta v. O.P. Singhal.
What must be understood here is that as per the Idea-Expression doctrine, concepts are not copyrightable. However, when the same concept has been expressed in some form (i.e. it has been fixated), it becomes a concept note and is a copyrightable subject-matter under the Indian Copyright Act, 1957 and can be registered as a literary work under the Act. This has only been extended to disputes relating to the Entertainment Industry as of now, as the Indian Courts haven’t dealt with the issue of concept notes and copyright in areas other areas.
The question of copyright in ideas was discussed at length in R.G. Anand v. Delux Films. The dispute in the case was regarding similarities between a play and a cinematograph film. The court applied the substantial similarity test and held that the similarities between them were of a trivial nature and not sufficient to raise an inference of colourable imitation. Only the central idea of dealing with provincialism was similar, and the works featured several other dissimilar ideas. It was held that a mere idea cannot be the subject-matter of copyright.
In Anil Gupta v. Kunal Dasgupta, the plaintiff had come up with an idea for a reality TV show called Swayamvar. The defendant came up with the show Shubh Vivah which was also based on the concept of matchmaking for marriage. The plaintiff had originally shared the concept note of Swayamvar with the defendant as confidential information. The Court held that since the concept behind Swayamvar had been expressed in the form of a concept note with adequate details, it was entitled to protection under the Copyright Act.
To determine a similarity between concepts, the Bombay High Court in Zee Telefilms v. Sundial Communications, applied the ‘germ of an idea’ principle which was later reiterated by the Delhi High Court in Twentieth Century Fox Film Corporation v. Zee Telefilms. The Division Bench of the Bombay High Court held that- “in order to find out the similarity in two concepts what is to be seen is the substances, the foundation, the kernel and the test as to whether reproduction is substantial is to see if the rest can stand without it. If it cannot, then even if many dissimilarities exist in the rest, it would nonetheless be a substantial reproduction liable to be restrained.”
The Delhi High Court in Sanjay Kumar Gupta v. Sony Pictures Ltd held that a concept cannot be a subject matter of copyright but a concept note, that is, a concept expressed in the form of a literary or dramatic work with adequate details, can be protected under the Copyright Act provided that it does not fail to fulfill other necessary requirements and does not suffer from issues such as lack of originality or existence of the concept in the public domain.
To conclude, any concept that has been expressed in the form of a literary or dramatic work can be protected under the Indian Copyright Act if it fulfills all other requirements for copyright protection with the only exception to the same being that such an idea should not have existed in the public domain. This is discussed in the Bombay and Delhi High Courts in Zee Telefilms v. Sundial Communications and Twentieth Century Fox Film Corporation v. Zee Telefilms. Moreover, there must be an application of sufficient skill and labour in the formation of the concept and its expression as laid down in Anil Gupta v. Kunal Dasgupta.
However, the question that still remains unanswered and hasn’t been looked at by the Indian Courts is that whether such protection also extends to concept notes not falling under the cases of the Entertainment industry. The Courts are silent on if such protection extends to ideas behind start-ups, business plans, e-sports, board games, or ideas for a patentable invention. If it does, then does it amount to a violation of the idea-expression doctrine itself by its very nature?
Author: Kunal Bhardwaj, Legal Intern at PA Legal.
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