Eastern Book Company v. D.B. Modak
Supreme Court of India · 12 December 2007 · 2 judges
A derivative work needs a minimal degree of creativity, not mere skill, labour and capital, for copyright; SCC's copy-editing of Supreme Court judgments did not qualify, but its paragraphing and indication of concurring or dissenting opinions did.
Facts
Eastern Book Company publishes the law report Supreme Court Cases (SCC). It obtains judgments from the Supreme Court Registry and copy-edits them, adding cross-citations, corrections, formatting, paragraph numbers and other inputs, besides headnotes. Two companies brought out CD-ROM software (Grand Jurix and The Laws) which, the publishers alleged, copied the copy-edited text of judgments as published in SCC. The publishers sued in the Delhi High Court and sought temporary injunctions. A Single Judge refused them, the respondents conceding copyright in the headnotes. The Division Bench held that there was copyright in the headnotes, footnotes and editorial notes, which the respondents could not copy, but not in the copy-edited judgments, since reproduction of judgments is not infringement under Section 52(1)(q)(iv) of the Copyright Act, 1957. The publishers appealed by special leave, claiming copyright in their copy-edited version as an original literary work.
Questions before the Court
- What standard of originality must a derivative work, such as copy-edited judgments of the Supreme Court, meet to be an original literary work under the Copyright Act, 1957?
- Is the whole copy-edited text of judgments published in SCC entitled to copyright, or only some of the inputs added to the raw text?
What the Court held
- Judgments of the Supreme Court are Government work under Section 2(k), and under Section 52(1)(q)(iv) their reproduction or publication is not infringement unless prohibited by the court. There is no copyright in the original text of judgments, which are in the public domain.
- A derivative work must be original in the sense of being produced by the exercise of skill and judgment. Novelty or non-obviousness is not needed, but the product of mere labour and capital is not enough; a minimal degree of creativity is required. The Court adopted the approach of the Supreme Court of Canada.
- SCC's copy-editing inputs, such as cross-citations, corrections of names and citations, formatting, standardised abbreviations and punctuation, improve readability but are trivial and lack minimal creativity, so the copy-edited judgments as a whole are not protected.
- Breaking the original text into separate paragraphs, adding internal paragraph numbering, and indicating which Judges concurred or dissented require knowledge, judgment and legal skill and carry minimal creativity. These inputs are protected by copyright.
- The appeals were partly allowed. In addition to the High Court's relief protecting headnotes, footnotes and editorial notes, the respondents were restrained from using SCC's paragraphs for internal references and its editor's notes on concurring or dissenting opinions. The contempt petition was disposed of.
Why it matters
The Court set the Indian standard of originality for derivative works, rejecting both a pure skill and labour test and a novelty test in favour of skill and judgment with a minimal degree of creativity. It confirmed that judgments of courts are in the public domain under Section 52(1)(q)(iv), confining its decision to such judgments, and drew the line between unprotected copy-editing and protected editorial contributions in law reports.
In the Court's words
Copied from the official judgment; each passage links to its page.
“To claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non-obvious, but at the same time it is not a product of merely labour and capital. The derivative work produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author.”
“No doubt the appellants have collected the material and improved the readability of the judgment by putting inputs in the original text of the judgment by considerable labour and arranged it in their own style, but that does not give the flavour of minimum requirement of creativity. The exercise of the skill and judgment required to produce the work is trivial and is on account of the labour and the capital invested and could be characterized as purely a work which has been brought about by putting some amount of labour by the appellants.”
“Making paragraphs in a judgment could not be called a mechanical process. It requires careful consideration, discernment and choice and thus it can be called as a work of an author. Creation of paragraphs would obviously require extensive reading, careful study of subject and the exercise of judgment to make paragraph which has dealt with particular aspect of the case, and separating intermixing of a different subject. Creation of paragraphs by separating them from the passage would require knowledge, sound judgment and legal skill. In our opinion, this exercise and creation thereof has a flavour of minimum amount of creativity.”
Provisions interpreted
Case and bench
- Parties
- Eastern Book Company v. D.B. Modak
- Case
- Civil Appeal No. 6472 of 2004 (with Civil Appeal No. 6905 of 2004 and Contempt Petition (Civil) No. 158 of 2006)
- Decided
- 12 December 2007
- Bench
- B.N. Agrawal, P.P. Naolekar
- Opinions
- Judgment delivered by P.P. Naolekar, J. for the Bench of two Judges; no separate opinion.
Questions on this case
From free Law Maker papers. Try each one before you open the answer.
Question 1 · Intellectual Property Law Practice Set 1
In Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1, the Supreme Court held that for a derivative work such as a copy-edited law report to be "original", it must:
- A. Show only that substantial labour and capital were invested in producing it
- B. Show novelty or inventiveness of the kind required for the grant of a patent
- C. Reflect the author's skill and judgment and a minimal degree of creativity
- D. Have literary merit and be approved by the court whose judgment the report reproduces
Show the answer
C. Reflect the author's skill and judgment and a minimal degree of creativity
The Court rejected the 'sweat of the brow' view that labour and capital alone suffice, and also held that novelty or non-obviousness is not required. A derivative work must result from the author's skill and judgment and show a minimal degree of creativity; the copy-editing inputs in the reported judgments did not meet that standard, though certain added matter such as headnotes could be protected.