Monday, 10 October 2016

CAN A CONCEPT NOTE BE COPYRIGHTED - Whether a concept note is a mere idea that does not merit protection ?

CAN A CONCEPT NOTE BE COPYRIGHTED  - Whether a concept note is a mere idea that does not merit protection ?
In India, ideas cannot be protected leading to the immediate conclusion that a concept being a mere idea is not protected under copyright law. Arguably, even if the idea were to be reduced to writing in the form of a concept note, the creation of a TV program based on the same idea (or concept) would not violate the literary work. It could be argued that the TV program would constitute an adaptation of the literary work and would therefore be an infringement of the copyrighted concept note. However, the term adaptation has been defined in a manner as to not include a cinematographic work at all.
Section 2(a)(ii) of the Copyright Act, 1957 defines “adaptation” in relation to literary works as “the conversion of the work into a dramatic work by way of performance in public or otherwise.”
Section 2(h) defines “dramatic work” as not including cinematographic films."
Further, section2(m)(i) defines “infringing copy” in relation to literary work as “a reproduction thereof otherwise than in the form of a cinematographic film;”
however, the Explanation to section51(b) appears to contradict section 2 (m) [or as one court has state, “carves out an exception to section 2(m)” in that it provides that for its purposes, the reproduction of a literary … work in the form of a cinematograph film shall be deemed to be an ‘infringing copy’. [Section 51 deals with when a copyright is infringed.]
Further, Section 14 of the Copyright Act, 1957 states:
14. “…, ‘copyright’ means the exclusive right subject to the provisions of this Act, to do or authorize the doing of any of any of the following acts in respect of a work or any substantial part thereof, namely, –
(a) in the case of a literary, dramatic or musical work, not being a computer programme,
(iv) to make any cinematograph film or sound recording in respect of the work;
From the above, although there seems to be a contradiction between sections 2(a)(ii) read with 2(h) and 2(m) and section 14 read with the Explanation to section 51(b), it appears that the exclusive right to make a cinematograph film in respect of a literary work lies with the author of the literary work.
 Whether a concept note is a mere idea that does not merit protection or whether it is a literary work, a subsequent creation of a TV program based on which would contravene section 51 of the Copyright Act?
In this regard the case of Urmi Chiang vs Global Broadcast News Pvt Ltd as well as the Swayamvar(Anil Gupta vs Kunal Dasgupta) case can be relevant.These cases have similar facts.
The following were facts established by these cases:
·       An idea per se has no copyright. But if the idea is developed into a concept fledged with adequate details, then the same is capable of registration under the Copyright Act.
·       In today's times where in the audience is so large proper credit needs to be given to the creator of the idea.
·       persons who create an idea/ concept or theme which is original, laws must ensure that such like people are rewarded for their labour.Otherwise authors of the ideas who are individuals, their ideas can be taken by the broadcasting companies or channels owning companies and the persons who has conceived the same, would be robbed of its labour.
·       Concept of Confidential communication- When an idea or concept has been developed to a stage that it could be seen to be a concept which has some attractiveness so as to get an audience on a television programme and could be realised as an actuality then the concept is capable of being the subject of confidential communication
  • Permissibility of registration of idea developed in a concept

An   idea per se has no copyright, but if the same was developed into a concept fledged with adequate details, the same could be registered under the provisions of the Copyright Act, 1957 – Further, in case the confidential information was used with certain variations, the same would amount to violation of copyright under Section 51 and 55 of the Act.

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