Can Judgments be Copyright Protected?

Section 52 (1) (q) (iv) of the Copyright Act, 1957 says you cannot, so there! But does this end the issue for us once and for all?

In a very interesting case, Eastern Book Company & Ors V/s D.B. Modak & Anr (Civil Appeal No. 6472 of 2004), the Supreme Court ruled that even though there can be no Copyright protection on the raw text of a judgement, the head-notes, foot notes and editor’s notes added to the judgement text in publications, that publish such judgements in a more user friendly and succinct manner for students, professions etc., are copyrightable.

The Eastern Book Company (EBC) comes out with the ever so popular Supreme Court Cases (SCC), publications that contain compilations of Supreme Court decisions. The EBC edits the raw text of the judgements for typographical and spelling errors, puts them in sequential paragraphs, numbers them etc. and adds head-notes, foot notes and editor’s notes in bold for ease of understanding and brevity.

EBC alleged that Spectrum Business Support Ltd and Regent Data Tech Pvt Ltd, companies that market softwares namely, ‘Grand Jurix’ and ‘The Laws’ respectively, in CR-ROMs, have been copying SCC’s judgement texts word for word. EBC claims that SCC judgements are ‘original literary work’ and therefore EBC alone has the exclusive rights to make copies of the same and market them.

The Apex Court, employing the ‘modicum of creativity’ theory, held that simply editing the raw text of the judgement cannot render copyright protection to the editor. There is no creativity or novelty there. However, the head-notes, foot notes and editor’s notes in the judgement text are copyrightable as there is a certain degree of creativity and employment of legal faculty involved there.

The Court relied upon the path taken by the Canadian decision of CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 (1) SCR 339 (Canada) wherein a balance was struck between the ‘sweat of the brow approach’ (wherein Copyright is accorded to he who employs time, labour and capital on the subject) and the creativity approach (wherein a work must be creative and/or novel and/or non-obvious to be accorded Copyright protection) and it was held that an ‘original’ work should be the result of not only creativity but of skill and judgement. Following this standard, the Supreme Court held that Copyright subsisted in the head-notes, foot notes and editor’s notes of the judgement text and not the edited language. The Court therefore restrained the defendants from copying the head-notes, foot notes and editor’s notes in SCC judgements.

Recently, the District Court in Lucknow passed an interim injunction in favour of EBC against Thomson Reuters’ Westlaw and Indlaw on similar grounds as above, i.e. infringing the copyright of the Supreme Court Cases (SCC) and marketing SCC judgements through software.

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