Copyright Infringement & Substantial similarity By Rajitha TR
By Rajitha TR
Copyright law comprises legal principles and rules envisaging the protection of those who produced intellectual works in the field of literature, music and fine arts including photographs, films and performance of artists. The principle objective of Copyright law is to protect the author’s original work from being reproduced in an un-lawful manner.
Copyright infringement is violation of exclusive rights of the copyright holder, the unauthorized or prohibited use of works under copyright such as the right to reproduce or perform the copyrighted work, or to make derivative works. To establish copyright infringement in court of law, a copyright owner must establish proof of copyright ownership and proof of copying by direct evidence of copying or by indirect evidence showing access to the original work; and “substantial similarity” between the original and allegedly infringing work.
In case of any copyright infringement, the plaintiff (party who initiates the law suit) must prove that the defendant’s (a person or party against whom an action or claim is brought in a court) work is “substantially similar” to the plaintiff’s work. Hence, the infringement test involves two important components. First, did the defendant actually copy the plaintiff’s work? And secondly whether the copied elements would protect the expression and is sufficiently important to be actionable. In simple words, the aim of the test is to determine if the copying constitute any infringement.
To prove copyright infringement, infringer shall have access to the plaintiff’s work. In this context, access means whether the infringer had a suitable opportunity to witness the original work or not. Therefore, while determining infringement, the courts often compare all possible elements of both the works created by the plaintiff and the defendant & exclude all public domain elements from work and look only to the key elements that are protectable. Hence, in establishing the protectable elements, the court would distinguish between the idea underlying in the work created and its expression. For that reason the term “substantial similarity” causes confusion in the copyright infringement analysis because the same term has different meanings at two different points in the infringement analysis.
The traditional approach to identify substantial similarity is the “Total concept and feel” test which relies on the visceral response of the ordinary observer or the audience or more appropriately the ‘lay observers’ test. The basis of the test is to determine whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work. The ordinary observer is then taken as a bench mark against the determination of presence or absence of substantial similarity.
The other approach is the “Extrinsic-intrinsic test” which is applicable to most literary works, such as books and scripts, musical compositions and artwork. This test comprises two separate tests firstly the extrinsic test measures whether there was substantial similarity in general ideas of the infringed and the original work and secondly, the intrinsic test which measures the substantial similarity in the protectable expression of both the works.
Yet another approach is the “Abstraction-Filtration-Comparison” or AFC test. AFC test involves three steps in order to determine the substantial similarity of the non-literal elements of a computer program.
Landmark case R.G. Anand v. Delux Films delivered by Indian Supreme court helps in understanding the concept of the substantial similarity. In this case, the author of the play Hum Hindustani R.G. Anand sued a production company Delux films for making a movie that was allegedly an exact copy of his play. The Supreme Court of India held that despite some similarities, the movie did not infringe the play’s copyright as there some substantial dissimilarities between the two. The dissimilarities were differences in story, theme, characterization and climaxes. Apart from this the Court also held that the copyright cannot be sought for an idea, it’s applicable only for an expression of an idea and not idea itself, as the allegation by Anand was that the defendants violated his copyright by copying his idea which was held invalid.
Therefore, the issue of substantial similarity is a critical element in infringement claims. Even where the fact of copying is conceded, no legal consequences will follow from the fact unless the copying is substantial. Furthermore, the term “substantial similarity” is not defined in the Copyright Act and it is a fact determined by the judge or the jury. Thus the decision rests on the shoulders of the Court to decide which test needs to be applied for which case and give a good justice.