Page:Eastern Book Company & Ors vs D.B. Modak & Anr.pdf/49

http://JUDIS.NIC.IN the Supreme Court Cases are only the well known extensions of the reported decision. These extensions lack even the minimal degree of author’s creativity or originality or intellectual labour. These additions do not create additional knowledge, the protection of which is the very basis of the copyright protection.

32. It is submitted by Ms. Pratibha M. Singh, learned counsel for the respondents in C.A. No. 6905/2004, that in the present case, the journals of the appellants, including SCC, are printed and published on the basis of preexisting judgments. Journals are, therefore, a derivative work. There is a distinction between a 'law report’ as understood in England and a 'law journal’ as printed in India. The appellants’ journal 'SCC’ is not a law report in the strict sense, inasmuch as the appellants’ journal reproduces the judgments of the court verbatim along with inputs. However, a law report known in the traditional English sense is when a law reporter present in the court would record in his own words and language the arguments of the counsel on both sides, give a summary of the facts and incorporate into the said report his transcript of the speech of the Judge. Thus, the appellants’ work could only be a law journal and not a law report. The judgments were specifically made a part of the exception to copyright infringement and thus find place in Section 52(1)(q) of the Act. The underlying purpose is that it is in public interest to place judgments in public domain. The work for which the copyright protection is claimed is a derivative work. For claiming protection of copyright in a derivative work, under the Indian law originality is a pre-condition and originality means only that the work was independently created by the author as opposed to copied from other works, and that it possesses at least some minimal degree of creativity. There is a distinction between creation and discovery. The first person to find a particular fact has not created the fact, he or she has merely discovered its existence. Reporting of the judgments of the Supreme Court with certain inputs could only be said to be a discovery of facts already in existence. Though for the purposes of creativity neither novelty nor invention is requisite for copyright protection, but at least some minimal creativity is a must. To create a copyright by alterations of the text, these must be extensive and substantial practically making a new version. The English decisions relied upon by the appellants would not apply to the facts of the present case as all the said authorities are under the old 1842 Act in U.K. wherein the word 'original’ was conspicuously missing in the statute. It is further urged that the copy-editing inputs of the appellants are only discoveries/facts and there are limited ways/unique of expressing the various copy-editing inputs and thus no copyright can subsist in such limited/unique expressions. The facts which are discovered could be expressed in limited ways and as such ways adopted cannot give copyright protection to the inputs or the judgments as a whole. It is urged that recognizing the copyright in the copy-edited version of the law reports would amount to giving the appellants a monopoly in the judgments of the courts which is against the intendment of Section 52(1)(q)(iv) and would defeat the purpose of putting judgments in the public domain. It is submitted by the learned counsel for the respondents that for a derivative work, the originality test as applied in United States Supreme Court should be made applicable whereby the author of a derivative work would satisfy that the work has been produced from his