Legal analysis on the interplay of copyright infringement and confidentiality law in India

By

Sakshi Shairwal

Srijeeta

Whether it is the issue of uploading or utilizing movie songs on platforms such as YouTube, or it be the growing business ideas such as the NFTs, copyright law has been playing a substantial and ever-increasing role in protecting an individual’s intellectual property.

What is copyright?

Copyright can be referred to as a right against any literary, dramatic, musical, and artistic works by a creator or producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation, and translation of the work. Since the works are bound to have some variations, the composition of the rights varies depending on the work. Having copyright ensures safeguards for the creators of their creations. The copyright laws are instilled in a way that enables them to strike an appropriate and viable balance between the rights of the copyright owners and the interests of the society as a whole, without hampering the economic and cultural development of the society.

What is copyright infringement ?

Violating any of the rights of an owner, provided to him by the copyright law against his/her creation is referred to as a copyright infringement. Sections 51 and 52 of the Copyright Act provide conditions for when a copyright is infringed and when not.

Acts such as:

i.) Making infringing copies for sale or hire or selling or letting them for hire;

ii.) Permitting any public place for such performance;

iii.) Distributing infringing copies for the purpose of trade;

iv.) Public exhibition of infringing copies by way of trade; and

v.) Importation of infringing copies into India.

Understanding confidentiality

Confidentiality has been defined as "ensuring that information is accessible only to those authorized to have access" and is one of the cornerstones of information security. The word ‘confidentiality’ forces any matter to remain under cover and to be known to only those required. Confidentiality is not only a minute part of the system but can be referred to as an ethical principle associated with several professions. It is the right to let alone. It may be the profession of law, medicine, or any other, confidentiality, whether it be expressed, implied, or in any form of communication provide the basis of an independent equitable principle of confidence. It disables information from being shared with any unnecessary third party. Today, signing Non-Disclosure Agreements has become a standard practice for preventing confidentiality issues. The Information Technology Act provides the main legislation among others for the protection of their privacy.

The recent discussion over copyright infringement and confidentiality has been over the case of Tarun Wadhwa v Saregama India Ltd & Anr, where the Bombay high court deliberated over the intersection of copyright infringement and confidentiality law.

Case background

The case arises out of a movie produced by the defendant with similar plots to that of the plaintiff’s screenplay, the defendant alleged breach of confidentiality and copyright infringement. The plaintiff, Tarun Wadhwa, made two claims. First that the Defendants illicitly used Wadhwa’s material, communicated in circumstances of confidentiality, to make a Marathi film. Second, the Defendants infringed Wadhwa’s copyright in one, or possibly three, published works. The two causes of action, breach of confidentiality and copyright infringement, will receive separate considerations. The prayers put forth by the plaintiff were to restrain the defendant’s movie from public release and to be given proper due credit for the impugned elements. The synopsis and screenplay in question, ‘Haila Zombie’ and the movie in question, ‘Zombivili’.

Justice Patel found that there was no sufficient prima facie for copyright infringement and breach of confidentiality. The particular reason mentioned for this was that the copyright claim made by the plaintiff was not for anyone identified component or even in multiple identified components, but in the manner in which these have been assembled or put together. As defined earlier, copyrights are claimed against original artistic works done and not the idea per say. The case explains that the issue is not of the “originality” of work, but the dichotomy between the existence of an idea and its expression in law. Having an idea and molding that idea into an expression are two different things. To have copyright over an idea or a thought one has to express it in a solid form. There can be no copyright for an idea.

If there can be no rights over an idea, how can one protect their creative ideas before execution? This is where confidentiality comes in, with conditions that apply.

Copyright law and Confidence law:

Breach of confidentiality and copyright infringement are closely tied. While an idea cannot be subjected to copyright infringement, it may be subjected to a confidentiality breach. In this case, the court separated the two issues of copyright and confidentiality as the idea communicated in confidence to the defendants propose no base for copyright. Today, making a play or movie with zombies is not an exceptionally different idea to work with. And most of these have more or less a similar kind of footing. The ideas in question are not enough to sustain a claim of originality; moreover, if those ideas would have been removed from the movie, the movie would have lost all its essence.

Keeping the copyright issue aside, the court addressed the confidentiality issue.

Confidence law can be considered to be wider than copyright law. It protects the substance of ideas and information, irrespective of the mode of communication. Copyright is a right in rem, but a confidentiality obligation is entirely in personam. Copyright has a statutorily defined term. Confidence does not. There is no copyright except as provided by the statute, and infringement is also prescribed by the statute. A confidence obligation is one in contract or equity (or both). There is a statutory defense to a copyright infringement action. These do not apply to a breach of confidence action. In this case, the court does not find any controversy in the actual sharing of material but looked into the necessary legal standards for a confidentiality breach, which was found to be lacking.

Justice Patel described the boundaries to confidentiality:

i.) In any case confidentiality, precision, originality, and completeness of disclosure are essential. The confidential information must be proprietary, i.e. original.

A Division Bench in Zee Telefilms Ltd v Sundial Communications Pvt Ltd & Ors, held that in a breach of confidence action, the plaintiff must

ii.) Identify clearly the information relied on;

iii.) Show that it was handed over in circumstances of confidence;

iv.) Show that it was information that had to be treated as confidential; and

v.) Show that it was used or threatened to be used without consent.

Since Wadhwa fails to present a clear and unambiguous identification of the proprietary, original material, he fails the prima facie test. The court found there to be unacceptable muddling and lack of precision and accuracy in crucial concepts, failing to fulfill the conditions of a breach.

vi.) When confidential information is shared to the knowledge of a person in circumstances where he has noticed, explicit or implicit, or must be held to have agreed, that the information is indeed confidential.

The reference to the springboard doctrine (an extension or a result of the breach of confidence principle), i.e. using the information for activities detrimental to the source, also does not stand clear due to the fundamental lack of precision in clarifying the confidentiality.

vii.) Something already in the public domain cannot provide for a breach of confidence. But something that has been constructed solely from materials in the public domain may possess the necessary quality of confidentiality.

The court found that Wadhwa’s submission of ‘his material and elements contained therein’ being utilized was too generalized and ambiguous for an injunction to be granted.

Deliberating upon the issue in the case, the court looked upon various precedent decisions and undertakings:

RG Anand V Delux Films & Ors: in this well-known Supreme Court decision, the set out that when ideas are developed similarities are bound to occur. Incidental co-incidences are not copyright infringement. There must be clear and cogent evidence of infringement.

In XYZ Films LLC & Ors v UTV Motion Pictures & Ors, Justice Patel himself explained that “if the rival work is so extensive a replication that the copied portion is the essence of it — take out the copied portion and nothing remains — then an injunction will follow, but not otherwise. If the realization of that concept is not shown to be copied, there is no infringement”.

The judgment in the discussion establishes the importance of accuracy and precision. Dealing with the judgment, the single bench Bombay High court established that, copyright cannot be claimed over an idea and there is a distinct difference between generating an idea and expressing an idea. While copyright cannot be established for an idea, confidentiality can be, in circumstances. Given the nature of the entertainment industry, there are bound to have similar ideas but mere similarity does not always imply copying or infringement. The fact that the plaintiff prayed for copyright infringement without any substantial claim over the idea doesn’t provide for any foundation to be heard in that matter. While it was confirmed that there was no issue of copyright, the issue of confidence still remained. In respect to the nature of interactions in the business, the promise of confidence amongst peers can be said to be an implied condition. In a similar matter of Beyond Dreams Entertainment v. Zee Entertainment Enterprises, concerning copyright infringement and misuse of confidential information, the Bombay High Court held that ‘confidentiality law offers a broader scope of protection than copyright law and the remedy of an injunction usually sought for copyright infringement may be granted to prevent the publication of confidential information even if the infringement claim does not succeed’. Although the issue of confidentiality is an outer scope of protection, the issue of ambiguity remains the same. One has to fulfill all established conditions before declaring a matter confidential. Though the confidentiality law provides a wider scope while protecting copyright, there does exist a narrow segment that overlaps each other. Both causes of action demand exactitude. Emphasis on presenting precise and clear pleadings was made. The judgment indicates towards the outer circle of the copyright law, the broader ambit, and how precision and exactitude help provide clarity while seeking relief.

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