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Coincidence: A New Test For Copyright Law?

The Supreme Court in R.G. Anand v. Deluxe Firms (1978)(1) laid down that an idea can never get the protection of copyright and in case there are there is a claim of copyright infringement, it has to be seen whether the contested work is substantially similar to the original and this will be seen from an average's persons point of view i.e. if an average person on seeing both, deems them substantially similar. However in this case, the defendant knew about the plaintiff's works.

What about a case where the two works are deemed substantially similar inspite of the defendant never having come across the original work at all? It is on this kind of a case wherein I wish to argue, coincidence can serve as a defence to copyright infringement. The obvious questions are, how does one determine coincidence, how does the validity and truthfulness of this defence be determined, should the defendant have done due diligence, can this defence be misused and can a clear line be drawn? My paper looks to analyse having coincidence as a defence to copyright infringement and to answer the all the above questions and draw suitable guidelines.
{ All Sections referenced are from the Copyright Act of 1957}

Coincidence: The Introduction
Copyright infringement cases are on the rise when it comes to litigation, with numerous authors claiming that their works were copied without due credit. Section 13, states that copyright will subsist throughout India for original dramatic, musical and artistic works, cinematograph films, and sound recordings. Section 17, states; usually the author shall be the first owner of copyright to their work. When someone uses the work without permission of the author or registrar (without valid license), markets that work as their own or produces something very similar, that is considered copyright infringement under Section 51.

The traditional test used by Indian courts was merely the ordinary observers test which was termed as the 'Total Concept and Feel test' . Then the 'Extrinsic-intrinsic test' came about which was a two step test. First is the extrinsic test i.e. whether there was substantial similarity in general ideas of the infringed and the original work . Second, the intrinsic test i.e. it measures the substantial similarity in the protectable expression of both the works.(2)

Finally, the Supreme Court in R.G. Anand v. Deluxe Firms, held that an idea can never get the protection of copyright and in case there is a claim of copyright infringement, it has to be seen whether the contested work is substantially similar to the original and this will be seen from an average's persons point of view/if an average person on seeing both, deems them substantially similar. The following happened with a friend of mine.

They made a meme and posted it on Facebook. It turned out that meme was made by someone else earlier, and that person may have chanced upon what my friend made, and then went on to demand credit for the work. I will spare the details, but what struck me was that this person was not known to my friend or me and had no mutual friends and was from another continent. There was little chance that my friend would have actually had the chance to view the original meme and my friend certainly could not be expected to just find this person's profile and see the memes they have posted. It seemed like a genuine coincidence. Now I know that all examples are not straightforward like this.

There are people who might copy the works of others under the guise of coincidence, even when the original work is in plain view. The court has also laid down a safeguard to avoid monopolising works, that ideas can never be copyrighted and a substantial similarity test has to be followed. But all these are cases where defendants are usually aware of the plaintiff's work. The question has to be asked, what if it is a genuine coincidence? One where the defendant has absolutely no way of knowing of the plaintiff's work, but the work is still deemed substantially similar? Can there be a safeguard of genuine coincidence from copyright infringement?

Coincidence: A Brief
Coincidence is partially present when it comes to substantially similar test and the fair use doctrine. Fair use is a defence to copyright infringement under Section 52, and it depends on a case to case basis. But as the Supreme Court already held, ideas can never be copyrighted and thus it does give room for 2 ideas to be the same out of coincidence. Eastern Book Company v. D.B. Modak,(3) concerned a copyright claim by an individual who had arranged judgements with a certain arrangement of head notes and the court held that only the notes were copyrightable and not the judgements.

Thus general content like judgements or other abstract content can be the subject of works as long as the arrangement is not copied. The nature of the defendant using the plaintiff's work is also important. It should not be exploitative. Fair use is something that cannot be defined. It must always depend on the degree of copying.(4) This does partially recognise coincidence in copyright infringement when it comes to general content.

For example:
if someone published a book for maternity leave and got it copyrighted, but then someone who has not heard of the book or it is not sold in their region or language, decides to write an opinion piece on maternity leave in their local newspaper, this will be acceptable. This is because there is no exploitation here. The article writer has never heard of the original book and has no access to it, is writing in a local newspaper and thus there is no commercial interest here, and maternity leave is something a lot of people have covered.

Hence, we see there is room for coincidence here. But this is not nearly enough to officially recognise coincidence in copyright. And to do so, the factors addressing coincidence needs to be addressed. In the maternity leave book example, the first element of access to the original author's work needs to be delved into. What, if there is absolutely no way for a defendant to access the plaintiff's work and the defendant wrote a book which was substantially similar but it was all original content? So, what all can be the elements of a coincidence test?

To begin with, it must be kept in mind that creativity is fluid. There cannot be any straight jacket formula for coincidence. It depends on circumstances of each case. We must keep in mind that a copyright claim exists for original works. However originality has nowhere been defined in legislation. Indian courts often used to borrow from UK and USA legislation. The UK courts used to follow the sweat of the brow principle which held that originality would be determined by sufficient skill, labour, and capital rather than inventive though.

This was upheld by the Delhi High Court in Burlington Home Shopping v. Rajnish Chibber.(5) USA used to follow the 'minimum modicum of creativity' principle which states that originality is where sufficient intellectual thought and judgement has gone into the creation of that work. India went on a midway path in Easter Book Company v. D.B. Modak.(6) It followed the principle laid down by Canadian Supreme Court, which held:
product of an exercise of skill and judgment, where 'skill' is the use of one's knowledge, developed aptitude or practised ability in producing the work and 'judgment' is the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work.(7) This skill must not be so less than it is just mechanical and must be more than a copy, however creativity is not required for originality.(8)

Combining this with the substantial similarity test for infringement, a great deal of ambiguity exists in India when it comes to interpreting those substantially similar works which may have had the required level of skill to deem it original under the originality test. There is also a huge chance of over protection when it comes to copyright based on the substantial similarity test.

Shamail Khan v. Falguni Shah
; the Bombay High Court had rejected the differences between the defendant's web series and the plaintiff's story by starting that the story was the life and blood of the series. The court had not actually bothered to have a studied dissection of the two and proceeded to rule on a general overview. Here, it may have actually paid off, but in the future such general observations by the court can risk over protection.(9) An average viewer may not always delve deeper into the context of the two works in contention.

The meme example is a perfect setting here, as my friend would have exhibited the required skill for it to be more than mechanical, but was still called out merely because he had no access to the original poster's meme. There is a need to address some factors that can surround coincidence.

Coincidence: The Factors

Access:
There is always a chance that the infringer may never have had the chance to view the original work. With the internet, it is easier to access more works in literature or drama. Statistics however show that only 50% of Indians have access to internet. (10) Hence it is very important to consider these factors . The status/class of the defendant, whether the plaintiff's work had popularity in the region of the defendant's residence, if it is in a language spoken in that particular area etc. It must be seen whether the defendant's work was derived from the plaintiff's work.

A paper about Nigerian copyright laws observed that a suitable test, if the defendant's work came after that of the plaintiff, must be to show whether the defendant had opportunity of accessing it. If the works are substantially similar, the presumption must be that the work was copied.(11) But this should be a reputable presumption. This presumption can be rebutted by the above factors of internet connection, language, status, popularity etc… . But copyright infringement must go beyond just viewing the two works and determining whether they are substantially similar.

Due Diligence:
This is like a corollary wherein there is an onus on defendants to do their due diligence. For instance, take Badshah's song,'Genda Phool (marigold flower)' which is alleged to have been shamelessly copied from Bengali folk singer Ratan Kahar's song, 'Boroloker biti lo'. The moment this song was released, many on Twitter pointed out how this song was copied and Kahar was not given any credit. Badshah countered saying that in the records, information was only given that it was a Bengali folk song and that he was happy to help Kahar financially. Kahar's name was absent as the singer.

However, here it is shown that the song was in fact well known in West Bengal. The records were already checked which showed that this was a Bengali folk song.(12) Surely, the producers, with the internet at their disposal, could have done their research and found that Ratan Kahar was the singer. Hence, the onus must be on the defendant to prove coincidence and that they did their due diligence. It is important so that such defence is not misused by more powerful people to strong-arm and plagiarise the works of those who might not have the means to approach the courts.

Badshah is a well known, rich artist while Kahar is living in poverty. Here, Kahar clearly has first, exclusive rights as he produced his song in the 1970. Section 57(a) gives Kahar near absolute claims to the original song for being the author. If substantial similarity is determined here, this case would fall squarely within infringement under Section 51.

Now, folklore is generally open to sampling so the question of which parts of Kahar's song can be copyrighted is another debate altogether. But the main point of due diligence is always important. Due diligence is used in many areas of law to see if a certain fact could have been reasonable to find out, even if not known at the first instance.

In case of coincidence too, due diligence criteria must be added to prevent abuse of this defence and to stretch copyright law in the complete opposite direction where everyone essentially has license to plagiarise. Courts will have to take a narrow view if this. But again, courts have to look beyond just substantial similarity from the perspective of an average viewer, to protect those who have independently come up with a similar work out of genuine coincidence.

Market range:
This last factor is in tandem with access and due diligence. It is important to look at how the wide spread the two works are. If a plaintiff's work is well known and sold all over India, as is the defendant's, there could be overlaps. However for instance, if there are two regional works in question. Say the plaintiff's work is only for audience in Tamil Nadu and the defendant has produced similar content independently, for audience in Rajasthan.

If the works are regional and known and sold only within the state, it will be considerably harder for the defendant to have known about the works of the plaintiff's given that it is only sold in one state for people conversing in a language of that state alone. This factor of course has huge overlaps with access and due diligence factors, but the area of sale also determines how popular and accessible a work actually is.

Substantial Taking:
The paper on Nigerian copyright laws mentioned earlier, also envisages a scenario of common reference. Often, to write a paper references are taken from past works. Two authors can reference the same historical source in public domain. This does not mean that the latter author has copied the former. It must be seen that that a substantial part of the defendant's work is taken from that off the plaintiff and this is judged by quality not quantity, making it a little different from the substantial similarities test.

In Franklin Mint Corp. v. National Wildlife Art Exchange Inc,(13) the plaintiff hired an artist to produce a water coloured bird painting of a cardinal. The artist transferred the copyright to the plaintiff. 3 years later, the defendant commissioner the artist to paint a set of four bird pictures, including one of cardinals, and also issued prints of the pictures for sale, which led to an infringement suit.

The plaintiff claimed substantial taking but the artist countered that he just borrowed the idea and that he could not be stopped from painting again. The court agreed and said, Since copyrights do not protect thematic concepts, the fact that the same subject matter may be present in two paintings does not prove copying or infringement.(14) This covers such cases wherein coincidences occur by taking the same frame of references. The defendant may just have taken inspiration from the same idea as the plaintiff and the fact that the works were similar was a mere coincidence, a matter of the same idea and not expression.

Coincidence: The Importance
All said and done, coincidence cannot have a perfect test and there will be subjectivity in its application. But it is important to look beyond this vague spectrum we have now. Coincidence is something that happens in various cases.The Bala vs Udja Chaman controversy released when makers of Ujda Chaman accused the latter of infringement especially when the makers of Bala preponed their release date for one day before the release the Ujda Chaman.

The makers of Bala however said that multiple films deal with the social issues of stigmatisation of bald men, a common theme.(15) Recently, Ed Sheeran also come under the line of fire for his song 'Photograph'. Martin Harrington and Thomas Leonard accused him of copyright infringement of their song 'Amazing'. The claims were identical tunes, identical lyrics, and a similar style.

This claim was under Dutch copyright laws which states that a work may not be derived from another work (the 'original' element); and that it includes creative choices (own 'intellectual creation'). Sheeran's defence was the allegations were for something that was not copyrightable to begin with and the songs being similar in some aspects was just a coincidence and not plagiarisation.(16) Now this essentially goes into the debate of what is copyrightable in songs, under Dutch laws so there is no point fixating on this.

The point to note however is that though creativity is fluid and has no boundaries, it is unreasonable to not factor that two people can think of the same concept. Music for instance is a very broad field, and factors like notes, melody, tunes, cannot be held as unique to any one singer. Similarly in films, Indian courts have consistently held that ideas are not copyrightable and neither are broad themes.

Hence, the element of coincidence has to be factored in. There are numerous copyright infringement cases in music and films which will end up leading to monopolisation if a mere substantial similarity test from the average viewer's point is taken. An average viewer likely will not consider factors like access, due diligence, the status of the parties, the language of the works etc… . Hence it is important for courts to provide judicial scrutiny to those factors to see if the two works produced under Section 13 are a matter of genuine coincidence.

In my opinion, the genuine coincidence element should not be part of written legislation, rather it should be a doctrine of the judiciary. Coincidence itself is subjective. A specific legal definition might make the application of coincidence too rigid and will end up defeating the purpose. There can only be elements which courts have to scrutinise subject to the circumstances of each case. This is to avoid complete monopolisation and attacking parties who might have honestly and independently created works of their own, which just happen to be similar to the work of another.

However the burden of proof of coincidence must be on the defendant. It must be used as a defence and not something for the plaintiff to prove i.e. the defendant's work was not a matter of coincidence. This is important to prevent economically stronger parties from lifting and plagiarising works of economically weaker parties and market it as their own and it is where due diligence has to be considered.

While it is important to prevent monopolisation, it is also important to not stretch it to the other direction wherein every work can be copied under the guise of coincidence and original authorship dies completely. But to once again emphasise, it is important to look beyond just the tests of law we have now. And genuine coincidence must be included by courts as a defence to copyright infringement.

End Notes:
  1. [1978] AIR 1613.
  2. Rajitha TR, Copyright Infringement & Substantial similarity ( Origin IP Solutions LLP ) https://www.origiin.com/2019/01/20/copyright-infringement-substantial-similarity-2/#:~:text=The%20Supreme%20Court%20of%20India,substantial%20dissimilarities%20between%20the%20two.&text=Furthermore%2C%20the%20term%20%E2%80%9Csubstantial%20similarity,the%20judge%20or%20the%20jury.
  3. AIR [2008] SC 809.
  4. Hubbard v. Vosper [1971] 1 All E.R. 1023
  5. 61 [1995] DLT 6.
  6. supra.
  7. CCH Canadian Ltd. v. Law Society of Upper Canada [2004] (1) SCR 339 (Canada).
  8. Adarsh Ramanujan, Prateek Bhattacharya, and Esheetaa Gupta, Infringement Analysis in Copyright Law ( Lakshmi Kumaran & Sridharan 2011), https://www.lakshmisri.com/Media/Uploads/Documents/WHITE_PAPER_IP_Infringement_Analysis_Esheeta_REVISED.pdf.
  9. Anupriya Dhonchak, Singardaan Copyright Case: Bombay HC's Novel 'Extraction' – Substantial Similarity Test ( Spicy IP 2020 ), https://spicyip.com/2020/06/singardaan-copyright-case-bombay-hcs-novel-extraction-substantial-similarity-test.html.
  10. https://www.statista.com/topics/2157/internet-usage-in-india/.
  11. Olumide Osundolire , Chinasa Uwanna and Oluwatobiloba Ojuri, Nigeria: Copycat Or Coincidence: Establishing Copyright Infringement In Similar Literary Works (Mondaq 2020), https://www.mondaq.com/nigeria/copyright/1002394/copycat-or-coincidence-establishing-copyright-infringement-in-similar-literary-works.
  12. Vasudha Tewari, Song 'Genda Phool's Controversy with respect to Copyright Laws (Legal Sarcasm 2020), https://legalsarcasm.com/news-blogs/song-genda-phools-controversy-with-respect-to-copyright-laws/.
  13. 575 F.2d 62 (U.S.: Court of Appeals, 3rd Cir. [1978] )
  14. Olumide Osundolire , Chinasa Uwanna and Oluwatobiloba Ojuri, Nigeria: Copycat Or Coincidence: Establishing Copyright Infringement In Similar Literary Works (Mondaq 2020), https://www.mondaq.com/nigeria/copyright/1002394/copycat-or-coincidence-establishing-copyright-infringement-in-similar-literary-works.
  15. Ridhi Adsul, Bala Vs Ujda Chaman: The Heated Controversy Regarding Copyrights ( Republic World 2019), https://www.republicworld.com/entertainment-news/bollywood-news/bala-vs-ujda-chaman-the-heated-controversy-regarding-copyrights.html
  16. Anonymous, Plagiarism or Coincidence? ( Van Kaam ), https://van-kaam.nl/en/article/149/Plagiarism-or-just-coincidence

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