Analysing Interpretations of ‘Unconventional Copyrightable Subject Matter’ Through Time: Part - I

Why this discussion?

As musicians, artists, creators, and writers discover new mediums of expression, an interesting question arises - what is the extent to which the subject matter requirement of copyright can be expanded? Just like copyright laws adapted to new technology like cinematographic films and computer programs, it is perhaps the perfect time for the 1957 Copyright Act to consider these newer categories of works.

Since the British Statute of Anne in 1710, which for the first time, established authors' rights in their books, copyrightable subject matter has vastly evolved and expanded. India has not historically, been observed to accommodate newer works unless they have been included in amendments to the Berne Convention for the Protection of Literary and Artistic Works, 1886. Perhaps, for this reason (that India was a signatory to it), no Indian court has grappled with the possibility of accommodating works before the Convention did, which brings us to introduce readers to the weird, but wonderful world of unconventional copyrights and attempts to do so across jurisdictions.

Understanding how and when subject matter accommodations were made to the Copyright Act of 1957 is relevant to understanding the Indian legislature’s approach towards computer programs. In 1995, the meaning of “literary works” under Section 2(o) was amended to explicitly recognize computer programs as literary works. What arguments would persuade the legislature to recognise works that go beyond conventional definitions of copyrightable subject matter?

A history of subject matter expansion

Photographs are a subject matter of copyright protection. However, there was a time when they were not. The US Supreme Court tackled this in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, where it was held that the Congress has the power to extend copyright protection to photographs under ‘writings’ like engravings, prints, and etchings since they were intellectual manifestations of the author. In Edison v. Lubin, 119 F. 993; S.C., 122 F. 240, the ambit of photographs as copyrightable works was extended to accommodate films since they were considered moving pictures. With the advent of new technology, it appears that the law-making procedure cannot evade the responsibility to address its copyrightability, akin to the debate on the copyrightability of AI-generated works that we have today. However, the debate on AI all boils down to the requirement of human authorship, making it slightly different from those addressed at the time of Burrow-Giles and Edison.

In Creation Records v News Group Newspapers [1997] EMLR 444, a British case, it was held that no copyright subsists in the arrangement of props, which included a drained swimming pool at a country club and a white Rolls Royce car. Such an arrangement was held neither to be a sculpture nor a collage. Since it was intrinsically ephemeral, the only manner of its existence was in a photograph.

This point is interesting to note, since today, formatting rights protect the arrangement of game shows and film sets. Interior design is also protected in certain instances. In 2020, the Italian Supreme Court, in Kiko v. Wycon (Decision no. 8433 of April 30, 2020), held that an interior design concept may be considered a work of architecture if there is “a unitary design, a clearly defined and visually perceptible pattern, a clear stylistic key and the author’s personal imprint.”

Is copyright law sensitive to smells?

French copyright law recognizes fourteen categories of copyrightable works but with the statement “regardless of their embodiment, merit, or purpose” prefacing it. Fragrances are ultimately constituted by combinations of extant chemical molecules, and like pharmaceuticals, can be depicted as works of information through their chemical formulae. Could they be compared to notations, the way a form of art like ballet is represented to acquire copyright protection? An expert musician can replicate a musical work if he listens to it enough. Similarly, a fragrance specialist can reverse engineer a fragrance if she is familiar with it. If we were to perceive artificial fragrances to be a subject matter of copyright, and the deconstruction of a fragrance was to bring about a replica of that fragrance, can its so-called “author” claim a copyright over it? This train of thought was explored by Charles Cronin in his article, “Lost and Found: Intellectual Property of the Fragrance Industry; From Trade Secret to Trade Dress”.

In 2006, Patrice Farque was sued for selling imitation fragrances of Lancôme and other perfumiers at a flea market (Lancôme v. Patrice Farque, 1. 172. 30 April 2009). The plaintiffs claimed that the sale of the imitation fragrances amounted to copyright infringement. The case was finally decided by the commercial section of the Cour de cassation in 2013. The Court differentiated the act of creation of a fragrance from the act of perceiving it. It was held that while creation might require creativity that is independent of technical expertise, it cannot be communicated in a manner that is perceivable.

The Dutch Supreme Court ruled in favour of an opposing line of argument in Lancome Parfums et Beaute et c/e SNC v Kefoca BV (HR), 16 June 2006, LJN AU8940. It was held that fragrances were eligible to receive copyright protection since they were capable of being recognised through the senses. However, they would have to be of an original character and embody the author’s personality. The requirement of fixation in copyright law was apparently fulfilled despite the fragrance’s inherent “fleeting and variable” nature because the material that emits the fragrance was adequately stable and concrete to constitute a work under the Dutch Copyright Statute.

While perfumes might be better suited towards the requirements of trademark and trade dresses, copyright protection makes a better case since it provides a longer term of protection.

Conclusion

Unlike trademarks, whose registrations require constant renewal and vigilance to keep intact, copyrights are the form of IP that grants the longest term of protection. This fact does not go unnoticed by creators of newer forms of expression, who seek any excuse to pull the scope of copyrightable subject matter to cover their creation. While this does not imply that courts are to entertain every such attempt that comes their way, newer forms of expression warrant open minds that, at the very least, contemplate this possibility. The cultural theory and the incentive theory of IP protection, too, favour this argument.

Sources

1. https://copyright.gov.in/documents/copyrightrules1957.pdf

2. Introduction: Setting the Scene for Non-Conventional Copyright by Enrico Bonadio and Nicola Lucchi

3. Evolving Conceptions of Copyright Subject Matter by Pamela Samuelson

4. https://ili.ac.in/pdf/vkt.pdf

5. https://jipel.law.nyu.edu/vol-5-no-1-6-cronin/#IIB

6. Source of image 1: https://www.cipil.law.cam.ac.uk/virtual-museum/creation-records-v-news-group-newspapers-1997-emlr-444

7. https://academic.oup.com/book/46572/chapter-abstract/408277650?redirectedFrom=fulltext

8. https://www.lexology.com/library/detail.aspx?g=6e3ff40a-995f-4515-9975-3899287e53e6

9. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012P/TXT

10. https://constitution.congress.gov/browse/essay/artI-S8-C8-3-2/ALDE_00013064/#:~:text=Article%20I%2C%20Section%208%2C%20Clause,their%20respective%20Writings%20and%20Discoveries.

11. http://classic.austlii.edu.au/au/journals/VicYngLawyersJl/2007/25.pdf