The Copyright Law is made up of all the legal principles and rules envisaging the protection of those who produce intellectual works in the field of literature, music and the fine arts, including photographs, films and performance of artists. It is in essence concerned with the negative right of preventing the copyright of physical, material, existing in the field of literature and art. Its object is to protect the author of an original work from the unlawful re-production of his material. Copyright is a man’s inherent right over his intellectual property which emanates from the deep recesses of the human mind and assumes tangible form called his works. Nothing can be called a man’s property than the fruits of his brains. The property is an article or substance accruing to him by reason of his own mechanical labor is never denied him: the labor of his mind is no less arduous and consequently no less worthy of protection of the law.
The various requirements for a work to be eligible for copyright include:
1. The work must be original
2. The copyright subsists in the expression of ideas and not in the ideas, no matter how genuine and novel the work is.
3. The work must be fixed in some tangible form for more than a transitory period.
The United States Supreme Court, in Fiest Publication, Inc. v. Rural Telephone Service Co., Inc., articulated the elements of copyright infringement as
1. Ownership of a valid copyright
2. Unauthorized copying of constituent elements of the work that are original
Not all copying is a copyright infringement. Particularly, actionable copying requires appropriation of protected elements of the work.
It is extremely difficult to prove copying by direct evidence. Therefore, to prove the same, recourse is taken to the defendant’s access to the work and “substantial similarity” between the original work and the accused work. To prove an infringement of copyright in a particular work, there must be an element of misappropriation. The degree of similarity necessary for a court to find misappropriation is not easily defined. Indeed, “the test for infringement of a copyright is of necessity vague”.
Further, we need to reach to the kernel of the work which is more commonly referred to as the “core copyrightable material”.
The underlined need to be removed:
3. substances from the public domain
4. substances which come under the purview of the doctrine of merger, where an idea and its expression are inseparable, that is, the idea can effectively be expressed in only one way.
5. such expressions which have become “standards” for describing a particular idea, elements which are referred to as scenes a faire,
from the alleged infringed work to come up with nugget of such work. The kernel of the alleged infringed work, so obtained, is to be compared with the alleged infringing work to decide factually and circumstantially, the infringement. The latter would be proved true if there is substantial similarity between the two works under question.
1. The lay observers’ test
2. The extrinsic-intrinsic test
3. The abstraction-filtration-comparison test
have evolved over the years through different judicial pronouncements to help Courts come to the conclusion regarding substantial similarity.
THE LAY OBSERVERS’ TEST:
The traditional test for substantial similarity is known as the “ordinary observer” or the “audience” or more appropriately, the “lay observers'” test. The basis for the test is “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” The ordinary observer is taken as the benchmark against which the presence or absence of substantial similarity is determined. The origins of the ordinary observer test may lie in an 1822 English decision, West v. Francis, quoted by White-Smith Publishing Co. v. Apollo Co.,: “A copy is that which comes so near to the original as to give every person seeing it the idea created by the original.” The phrase “every person” could not literally have meant every possible person, but it is presumed that it referred to a hypothetical person. Unlike trademark infringement, though, in copyright infringement cases, survey evidence is not permitted.
It was said in Atari, Inc. v. North American Philips Consumer Elecs. Corp. that the test for substantial similarity is “whether the accused work is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff’s protectable expression by taking material of substance and value.” The touchstone of the analysis is the “overall similarities rather than the minute differences between the two works.”
As was mentioned in Arnstein v. Porter, as a rare rationale for the ordinary listener test,
“Whether the defendant unlawfully appropriated presents, too, is an issue of fact. The proper criterion on that issue is not an …