that the contents thereof are mere advertisement slogans and some general instructions normally used and
the literature contained in these works is nothing but a combination of commonly used phrases and
sentences which all lack originality.
It is enough to test the basis of originality followed by the Registrar on the yardstick enunciation thereof given
by Justice Peterson in the University of London Press, Ltd. v. University Tutorial Press, Ltd. (1916) 2 Ch. 601
approvingly quoted in Macmillan and Co., Ltd. v. K. and J. Cooper AIR 1924 PC 75 at p.85 as under:
The word 'original' does not in this connection mean that the work must be the expression of
original or inventive thought. Copyright Acts are not concerned with the origin 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-that it should originate from
the author.
The above judgment has been consistently followed in India in the context of successive Copyright
legislations including the present one, namely, the Copyright Act, 1957.
MANU/CP/0001/2008
BEFORE THE COPYRIGHT BOARD, DELHI
F. Nos. 2-3/2004-CRB(SZ)
Decided On: 10.07.2008
Appellants: Enercon Systems Pvt. Ltd.
Vs.
Respondent: The Registrar of Copyrights
Hon'ble Judges/Coram:
Raghbir Singh, Chairman, Yogendra Prasad and R. Ragupati, Members
Acts/Rules/Orders:
Copyright Act, 1957 - Sections 13 and 72(1); Code of Civil Procedure (CPC)
Cases Referred:
R.G. Anand v. Delux Films and Ors. AIR 1978 SC 1613; PepsiCo. Inc. and Anr. v. Hindustan Coca Cola and
Ors. 2001 (21) PTC 699; PepsiCo., Inc. and Ors. v. Hindustan Coca Cola 2003 (27) PTC 305(Del); Noah v.
Shuba (1991) FSR; Sinanide v. La Maison Kosmeo (1928) 139 LT 365; Rose v. Information Services (1987)
FSR 254; Macmillan and Co. Ltd. v. K and J Cooper AIR 1924 PC 75; Dr. Pepper and Co. v. Sambo's
Restaurants Inc. 517F. Sup. 1202; Kleier Advertising Agency Inc. v. Premier Pontiac Inc. 2 USPQ2d 1152;
University of London Press, Ltd. v. University Tutorial Press, Ltd. (1916) 2 Ch. 601
Disposition:
Appeal allowed
ORDER
1. This is an appeal under Sub-section (1) of Section 72 of the Copyright Act, 1957 against the order of the
Registrar of Copyrights refusing to register the literary works of the appellant.
2. In the present case, the date of the order of the Registrar rejecting two applications for registration of the
literary works of the appellant is 3.12.2003. The appellant filed the appeal against the decision of the Registrar
on 7.6.2004. Section 72(1) provides that an appeal against the final decision or order of the Registrar may be
filed before the Copyright Board within three months of the date of the decision of the Registrar. There is a
delay of 3 months and 4 days in filing the appeal. The appellant had filed an application for condonation of
delay. Although there are no specific provisions under the Act for condonation of delay by the Board, yet the
Board is guided conceptually by the provisions of the Civil Procedure Code in matter of its procedure. There
is no opposition on this score from the respondent. In view of that it shall be fair to condone this delay in filing
the appeal and accordingly we allow it.
3. According to the appellant, it moved its applications, both dated 6.11.2002 on 29.11.2002 for registration of
its literary work titled "Contents of Corporate Campaign" and "Contents of Enercon Advertisement". Both
works comprise text, design as well as illustration and are original literary work of the appellant. Ms Hema
Hattangady, the Managing Director of the appellant company is the author of these works and all rights in the
works have been vested in the appellant company. Both the works were first published in India on 12.8.2002
and have been used by the appellant since their first publication. Respondent, the Registrar, relying upon his
earlier decision in a matter relating to M/s Overnite Express Limited rejected to register the literary work on
the ground that the same contain only advertisement slogans and general instructions which are not entitled
to be registered as per the provisions of the Copyright Act, 1957. As per the appellant, Overnite case and the
decision in the case of R.G. Anand v. Delux Films and Ors. MANU/SC/0256/1978 are not applicable in this
matter. The only other Indian authority relied upon by the Registrar, that is, PepsiCo Inc. and Anr. v. Hindustan
Coca Cola and Ors. 2001 (21) PTC 699 for the proposition that slogans are not copyrightable has been
overruled by the Hon'ble Division Bench of the High Court of Delhi in appeal in PepsiCo, Inc. and Ors. v.
Hindustan Coca Cola 2003 (27) PTC 305 wherein the court has held that slogans which form the theme of
the advertisement of the applicant's products are entitled to copyright protection. Two foreign authorities of
1991 and 1928, namely, Noah v. Shuba (1991) FSR and Sinanide v. La Maison Kosmeo (1928) 139 LT 365
relied in Overnite Express case are inapplicable to the present case as the same were short descriptive
phrases where the same ideas could not be expressed otherwise. Rose v. Information Services (1987) FSR
254 relied upon by the Registrar is too inapplicable since it was held therein that a title 'the lawyer's diary' is
not entitled to copyright protection whereas the work of the appellant is not merely a descriptive title. Registrar
failed to appreciate that it is well established law that slogans are entitled to protection as literary work under
the Copyright Act, 1957.
manupatra
4. Registrar, the respondent herein, did not file any reply. Accordingly, learned Counsel for the appellant, while
arguing the matter on the lines of submissions made in the petition, put reliance upon Macmillan and Co. Ltd.
v. K and J Cooper AIR 1924 PC 75; Dr. Pepper and Co. v. Sambo's Restaurants Inc. reported in 517F. Sup.
1202; Kleier Advertising Agency Inc. v. Premier Pontiac Inc. reported in 2 USPQ2d 1152 and more importantly
upon Pepsi Co. Inc. and Ors. v. Hindustan Coca Cola Ltd. and Anr. MANU/DE/0896/2003 and submitted that
the law is now well settled that slogans are entitled to protection as literary work under the Copyright Act,
1957.
5. It shall be relevant to cull out the relevant part of the decision of the Registrar rejecting the applications for
registration of the literary work. Letter dated 3.12.2003 of the Deputy Registrar conveying the decision of the
Registrar reads as under:
I am directed to refer to your two applications on the above subject and to say that the
works submitted by you in all these cases contain only advertisement slogans and some
general instructions normally used which do not enjoy copyright protection. It may also be
noted that in one case, you have enclosed two different pieces of advertisement material
with slightly varying slogans. The literature contained in these works, being a combination of
commonly used phrases and sentences, cannot claim any originality as defined under
Section 13 of the Copyright Act, 1957. It has therefore been decided by the Registrar to
reject the above two applications. A copy of the earlier order passed by the Registrar of
Copyrights in a similar case is enclosed for your ready reference.
The elemental inference which led the Registrar to conclude that the impugned works are not copyrightable is
that the contents thereof are mere advertisement slogans and some general instructions normally used and
the literature contained in these works is nothing but a combination of commonly used phrases and
sentences which all lack originality.
It is enough to test the basis of originality followed by the Registrar on the yardstick enunciation thereof given
by Justice Peterson in the University of London Press, Ltd. v. University Tutorial Press, Ltd. (1916) 2 Ch. 601
approvingly quoted in Macmillan and Co., Ltd. v. K. and J. Cooper AIR 1924 PC 75 at p.85 as under:
The word 'original' does not in this connection mean that the work must be the expression of
original or inventive thought. Copyright Acts are not concerned with the origin 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-that it should originate from
the author.
The above judgment has been consistently followed in India in the context of successive Copyright
legislations including the present one, namely, the Copyright Act, 1957. Appellant herein has submitted that
the said works are the amalgam carefully conceived and designed consisting of text, design and illustrations.
We have carefully examined the impugned works. There is nothing in the conclusions of the Registrar to
show as to the absence of the originality of the work. Copyright law does not rest the copyrightability on the
yardstick of the excellence or the merit of the work. The moment there is nothing to doubt as to the work
having been copied from some other work, the copyrightability follows ipso facto.
In view of the above, we accept the appeal and direct the Registrar to proceed with the registration of the
works as per the provisions of the Copyright Act, 1957. No orders as to cost.
No comments:
Post a Comment