In order to have a copy right acquisition, there are four requirements namely, fixation1, originality (which includes independent creation and modicum of creativity), copyright subject matter, that is the categories defined in section 102 (a) and the same does not fall within exclusions such as idea v expression dichotomy and that of useful articles.
The next step is to meet the formation requirements. By the term fixation we mean painting, writing, and computer files on hard drive, ephemeral performances which are fixed through recording and must have been authorised by the author. Registration is necessary if one has to file a suit for infringement. However, unfixed works may also be protected in some states through state laws.
The work must be made by the author and not copied and at least must contain modicum of creativity. Things which have not been created by anyone does not fall within the phrase, "Independently Created", similarly the works created by other authors since plagiarism does not generate the originality. By independent creation we mean originality and not novelty. An independent recreation of a work already created by someone else is also copyrightable. So where there is no originality, there is no copyright. Such works include a book review, a screenplay from a book too is copyrightable but in a limited way. Making copy of sections of original work can be done without violating copyright; however, this may be a violation of original author's copyright.
The scope of a copyright is limited to the material one independently creates. The value, quality, or social worth of a work has nothing to do with the copyrights, thus work not considered socially beneficial are routinely copyrighted. This lack of distinction between high and low makes the copyright difficult.
In Alfred Bell & Co v Catalde Fine Arts, Alfred Bell was producing mezzotint copies of public domain paintings; Catalde began replicating Bell's mezzotints, Bell Sued for copyright infringement. The question arose was there a sufficient modicum of creativity in Bell's mezzotints public domain paintings to find originality. The court held, there was sufficient originality in Bell's mezzotint reproduction, to make them copyrightable. Similarly on the basis of artist choices of posing, camera placement, costumes, scenes and lighting, photographs fell within the domain of medium of creativity2. But where 3-D images of existing Toyota cars displayed the car as it already existed, the court ruled that there was not enough originality for to be considered as an author. An extensive numbering system to represent inventory control having sample number and each part description was determined by the court to have an insufficient amount of originality. Thus, it is difficult to determine the line that establishes sufficient creativity and originality in copyright cases. It is easier to find originality in cases where the plaintiff resembles a traditional artist.
COPYRIGHTABLE SUBJECT MATTER In order to qualify as a copyrightable subject matter, the work must fall in the categories listed in §102 (a), and it must not be excluded from copyrightable subject matter. Derivative works include a sequel or an adaptation of a work into a new medium. This right only protects original contribution of derivative work of an author.
IN SUCH CASES PROTECTION IS RESTRICTED TO:
i. Original contribution of derivation work author.
ii. If copied the underlying work, only the author of the underlying work has cause of action.
iii. Where copy originates from both derivative work and underlying work, both authors have a cause of action.
Compilation copyright relation to collections of distinct pre-existing work form periodical's anthologies and encyclopaedia and covering the original expressions constituted by such selection and co-ordination, has a fairly limited scope, cause of action will arise only if entire compilation is copied.
EXCLUSIONS:
-- Idea/expression dichotomy
-- Useful article doctrine
-- Government work doctrine
IMPACT OF THE IDEA/EXPRESSION DICHOTOMY:
a. It can prohibit issuance of a copyright, for example where there are no original expressions, it cannot be copyright3.
b. Can limit the scope of an existing copyright, for example, accounting method is not copyrightable since the same is an idea and others can copy, the idea so long as they did not copy his expressions4.
MERGER DOCTRINE Where to convey an idea a particular expression is necessary, such an idea merges and the expression merged with idea cannot by copyrighted. For example, rules of procedure present a mixture of idea and expression, in such cases expression was not protected since the same was merged with idea5.
It is evident thus that ideas are not copyrightable whereas expressions are copyrightable and merger doctrine applies to situations where ideas and expression merge.
Government works are not copyrightable and these include statutes, judicial opinions, administrative decisions and photographs taken by government agencies such NASA. This exception is based on the principle that government works are not based on benefit cost concept. The benefit in such case will be low and cost high. Hence the government works are not copyrightable.
There are no formalities to obtain a copyright in US6. However, the requirements differ from legislation to legislation. But generally the formalities require notice7, publication8, registration and deposit. The ownership of this right rests in the creator of work, or the employer of the creator.
(The writer is an advocate and is currently working as an associate with Azim-ud-Din Law Associates Karachi)
1. Fixation has been defined under § 102 (a) of the copyright Act and the protection is provided to original work of authorship fixed in any tangible medium of expression, so the work must be fixed.
2. Barrow-Giles lithographic Co v sarony ll US 53 (1334)
3. Fiest v Rural
4. Baker v Seldon
5. Morrissey v Procter and Gamble
6. USA is a signatory to Berne Convention since 1989
7. Failure to put copyright symbol on a work could forfeit copyright
8. Required before 1976, only fixation is required after 1976
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