Shamoil Ahmad Khan v. Falguni Shah: Scrutinizing the Idea-Expression Dichotomy

The principle of ‘Idea-Expression dichotomy’ was devised to ensure that the expression of an idea is protected instead of the idea itself. It espouses the importance of balancing a) the interest of the copyright owner with b) the interest of the public in furtherance of creativity and innovation. It is settled in law that ideas don’t garner protection because if ideas or broad subjects matters were to be protected, it would result in restricting the scope of the subject matter. The courts in the US, India and England have held the principle of dichotomy as fundamental to the doctrine of copyright.

The Bombay High Court, recently, in Shamoil Ahmad Khan v. Falguni Shah pronounced a  judgement that was contrary to the idea-expression dichotomy. The High Court held that the theme, storyline and plot comprising the core of a literary work can be protected. This decision takes a conflicting stand from the landmark judgement of apex court, R.G. Anand v. Deluxe films.  The apex court held that a theme, storyline, plot, and facts of historical importance should remain in the public domain.

Copyright is said to be infringed when there exists substantial similarity in the alleged infringing work. There is no straight-jacket formula to identify if the works are substantially similar, as the threshold of substantial similarity is perceived to be ad hoc and subjective. However, it is imperative for courts to cautiously judge substantial similarity only on the basis of protectable works, i.e., the original expression of the authors.

In this article, the author tries to analyse the judgement with respect to the idea-expression dichotomy. Additionally, attempts to carve out fallacies in the court’s interpretation of the notion of substantial similarity.

Summary of the Judgement

In the instant case, the Plaintiff claimed that the Defendant, without authorization, copied the Plaintiff’s short story, “Singardaan” by adapting it into a web series, having the same title. The short story was initially written in Urdu, and was later published in the Plaintiff’s own collection titled “Singardaan”. Translations of the story are available in English, Marathi and Punjabi. The primary issue pertaining to the case is whether there exists a copyright infringement by the Defendants for substantially appropriating the plot of Plaintiff’s short story in their web series.

The premise of the dispute is the claim that the plaintiff’s plot centred on a vanity case (singardaan) belonging to a prostitute. The said singardaan is looted by the protagonist from the prostitute during ongoing riots, and taken to the residence of the looter. Subsequently, the protagonist’s wife and daughters start behaving in a like manner to the prostitute. The plaintiff sought damages as well as a temporary injunction obstructing the defendants from telecasting the web series. The Court ruled in the favour of Plaintiff.  The court, however, mentioned that the Defendants have adopted the Plaintiff’s story in a different format, but ultimately decided that, hence the story, plot and theme of the Defendant are very similar to that of the Plaintiff’s, there lies infringement.

Analysis

To determine infringement, the court first looked into the principle of dichotomy. In pursuance to the same, it employed the unconventional test of ‘Abstraction-Filteration-Comparison’ (AFC) to identify what parts can garner protection. Whilst the process, the court essentially stripped the story of its embellishments, which consisted of “motivations and tribulations of its characters, its description of mood, and their actual actions. And once these aspects were removed, what was left was the storyline and the plot of the work”.  While interpreting the test, the court commited various fallacies, which the author has discussed below.

Firstly,  While stripping off the embellishments, which are essentially the creative details of the story unique to the author’s original voice, the court while justifying its reasoning of garnering protection to the theme, plot and storyline held it to be the life and blood of the author’s work, and hence reasoned that it should be protectable. However, the author argues that the broad theme of the literary work cannot be said to be original, as various authors have written around the similar subject matter of riots and relationships with prostitutes.

Secondly, the court in the course of comparing similarities in the expressions of the two works, shifted from the Abstraction test and eventually employed the ordinary observer’s test, it concluded that once the works were stripped of their embellishments, the story and the plot of the two works were similar to the extent that if a layperson acquainted himself with both the works, he would consider the Defendant’s webseries as an adaptation of the Plaintiff’s. Employing the ordinary observer’s test to determine substantial similarity risks significant expansion of the scope of copyright protection since the ordinary viewer is burdened with the unfeasable task of comparing only protected expression in determining substantial similarity without partaking in any thoughtful scrutiny of the work. Additionally, it risks overprotection, which in turn threatens the prime objective of the copyright act – Creativity and innovation. Also, the threshold is highly subjective. The court observed that the plaintiff’s theme, plot or storyline narrated in the foregoing paragraphs surely cannot be described as a mere idea; it is in fact an expression of an idea. Conclusively, the court compared those parts which were not supposed to be compared, as they were the unprotectable parts of the two works- storyline, theme, and the plot.

Thirdly, the court neglected the material differences between the two works, which was held by the Apex Court, in R.G. Anand, to be an important aspect to take into account when devising infringement.

Fourthly, the court, in spite of noting earlier that “the idea in itself was free to be used by anyone provided they contextualised it within a different storyline than that of the plaintiff” goes to show the problematic and inconsistent approach outlook of the court.

Conclusion

Considering the growth of OTT platforms in India, questions concerning copyright infringement have become rather common. Such orders if passed could pose to be an impediment to the Indian copyright framework. As, it sets a problematic precedent in the jurisprudence of copyright infringement cases. In the present case, the court failed at adequately employing the Abstraction Filtration Comparison (AFC) test, as it ultimately resorted to the ordinary observer’s test, the observer test’s threshold has always proved to be vague, inconsistent in the recent times.

Author: Arya Wakdikar, a student from ILS Law College (Pune), currently an intern at Khurana & Khurana, Advocates and IP Attorney,  in case of any queries please contact/write back to us via email vidushi@khuranaandkhurana.com

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