“Protection of Concept Note Under The

Copyright Law”

Presented By: Tanvi Saini

Roll No: 36
LLM 1st Year (2 Year Course)
Faculty of Law
Delhi University

Presented To: Prof. Ashwani Kumar Bansal

Faculty of Law
University of Delhi
 OBJECTIVES OF STUDY

In this paper it has been my earnest Endeavour to bring clarity the

following aspects:

 To analyze in brief the concept of copyright in literary

work.

 To discuss ideas/plots and themes under Copyright law.

 To bring out the genesis of concept note.

 To deal with concept notes under Copyright law.

 To differentiate between ideas and concept note.

 To justify and reason the protection granted to concept note

under the Copyright law.
 INDEX

1. Objectives of study

2. Introduction

3. Copyright in Ideas and Plots

4. Significance of Protecting a Concept Note

5. Urmi Juvekar Chiang v Global Broadcast News Ltd

6. Zee Entertainment Enterprises Ltd v Gajendra Singh

7. Conclusion
 INTRODUCTION

SUBJECT MATTER OF COPYRIGHT VIS-À-VIS LITERARY

WORK.

According to Section 13 of the Copyright Act 1957, copyright subsists in the

following classes of work.
a) Original literary, dramatic, musical and artistic work
b) Cinematograph films
c) Sound recording

Further “literary work” has been defined under Section 2 (o) of the same Act
as “literary work includes computer programmes, tables and compilations
including computer databases.”

What is protected in literary works is ‘originality’ which is the product of the

human mind that may consist of a series of verbal or numerical statements,
not necessarily possessing aesthetic merit, capable of being expressed in
writing and which has been arrived at by the exercise of substantial
independent skill, creative labor or judgment. For a work to be original it is
important that it should not have been copied from another work. Thus, a
work maybe ‘original’ if the author has applied his skill and labour, even
though he has drawn on knowledge common to himself and others or has
used already existing material.

In Eastern Book Co vs. Navin J. Desai,1the Delhi High Court examined the
requirement of ‘originality’ to claim copyright protection in a literary work.
The Court held, “Changes consisting of elimination, changes of spelling,
elimination or addition of quotations and corrections of typographical
mistakes are trivial and hence no copyright exists in them”. Thereby it held
that there would be no copyright in copy edited full text of judgment.

1
AIR 2001 DEL 185
 COPYRIGHT IN IDEAS AND PLOTS

One of the fundamentals of the Copyright law is that, the copyright law
protects only specific expressions of an idea and not the idea itself.

The idea and expression dichotomy has been a major problem in the
copyright law. The principle is that ideas and concepts are available to all to
use and that one is free to form his own expression from any concept or idea.
Where the idea and expression are inseparable, none is protected.

Copinger 2 on copyright has stated that “Copyright is a right given to or

derived from works and is not a right on novelty of ideas. It is based on the
right of an author, artist or composer to prevent another person from copying
an original work, whether it is a book, tune or picture, which he himself has
created. There is nothing in the notion of copyright to prevent a second
person from producing an identical result (and himself enjoying a copyright
in that work) provided it is arrived at by an independent process.”

Thus copyright is not concerned with the reproduction of ideas, but with the
reproduction of form in which those ideas are expressed. A leading case
discussing the copyright in themes and plots has been R.G Anand v Delux
Films3.

In this case, the plaintiff was a play writer and producer of some plays
icluding the play ‘Hum Hindustani’. The plaintiff considered the possibility
of filming the said play and narrated the same to the defendant. The
defendant without informing the plaintiff made a picture ‘New Delhi’, which
was alleged to be based on the said play. The question that whether the film
was an infringement of the plaintiff’s copyright in the play was not decided
in the plaintiff’s favour. According to the decision of the case, what is
protected is the is not original thought or information, but the original
expression of thought or information in some concrete form. However if the
defendants work is nothing but a colorable imitation of the copyrighted work
with some variation here and there it would amount to a violation of

2
Copinger on Copyright 11th edition
3
AIR 1978 SC 1613
copyright. Thus the copy must be substantial and material one. A copy was
herein defined as that which comes so near to the original as to give to every
person seeing it the idea created by the original.

Further it was held, that where the theme is the same but is presented and
treated differently so that the subsequent work becomes a completely new
work, no question of violation of copyright arises. It is obvious that the
underlying emotions reflected by the principal characters in a play or book
maybe similar and yet that the characters and expressions of the same
emotions be different. That the same emotions are found in plays would not
alone be sufficient to prove infringement but if similar emotions are
portrayed by a sequence of events presented in like manner, expression and
form then infringement would be apparent.

The Court following the decision in R.G Anand Case observed in

Barbara Taylor Bradford4 case that, the protection under the copyright law
must not become an over protection, thus, curbing down future artistic
activity. If mere plots and characters were to be protected, no original artist
could write anything ‘original’ at all, on a similar plot or on similar
characters.

4
2004 (28) PTC 474 CAL (DB)
IDEA/PLOTS VS CONCEPT NOTES

Before moving further with the discussion on ‘Copyright in Concept Notes’,

it is vital to have a general understanding of some important Sections of the
Copyright Act relating to literary work.

Though the Indian Copyright Law has no specific provision wherein ideas
are clearly forbidden from protection, but the Indian Courts have time and
again held that there is no copyright in ideas and that copyright vests in the
expression of an idea. Arguably, even if the idea were reduced to the form of
a concept note, the creation of a TV program based on the same idea
(concept) would not violate the literary work. This is so because Section
2(m) of the Copyright Act, 1957 defines an infringing copy in relation to a
literary work as ‘a reproduction thereof otherwise than in the form of a
cinematograph film’. It could be then argued that the TV programme
would constitute an adaptation of a literary work and would thus constitute a
violation of the copyrighted concept note. But, Section 2(a)(ii), of the
Copyright Act defines adaptation incase of literary work as, the
conversion of the work into a dramatic work by way of performance in
public or otherwise. And ‘dramatic work’ has been defined in Section
2(h) of the Act, as not to include a cinematograph film.

However interestingly, the explanation to Section 51(b), states that the

reproduction of a literary, dramatic, musical or artistic work in the form of a
cinematograph film shall be deemed to be an ‘infringing copy’; this
explanation is contrary to the provisions of Section 2(m).

The basic reason for not giving protection to an ‘idea/plot’ is because the
Copyright law does not protect novelty as the Patent Law but rather is
concerned with the ‘originality’ of a piece of work. The copyright does not
seek to foster monopoly in an idea/plot/theme rather it merely prevents the
copying of an original expression or form given to an idea/plot/theme. If the
Copyright law were to create a monopoly it would hamper the creativity and
innovation of different authors who could give different form/expression to
the same idea or theme.

However, even where a plot is being copied it is necessary for the person
who copies it to weave into the plot sufficient amount of his own creativity
and skill in order to give his work an original embodiment of its own that is
varyingly different from the plot so similar.

There is perhaps no straightjacket formula to judge whether or not a

particular literary work is a copy of the other or not. It is rather a question to
be assessed in each given case as per the situation. More than a legal
reasoning this question requires an eye of a layman to judge the similarity or
dissimilarity with the original work.

A Concept Note on the other hand is treated under the copyright law
differently. A concept note is not an idea simpliciter. It is when the idea is
reasonably worked out using adequate adequate amount of skill and
creativity that it is called a ‘concept note’. In the television industry a
‘concept note’ is the literal version which when dramatized on the screen
takes the form of a show/serial capable of being broadcasted.

In Frazer v Thomas Television[(1983) All ER 101], the Court observed, ‘I

accept that to be capable of protection the idea must be sufficiently
developed, so that it would seem to be a concept which has atleast some
attentiveness for a television programme and which is capable of being
realized as an actuality’.

Hence concept notes are treated on a different pedestal from idea/plots under
the copyright law.
 SIGNIFICANCE OF PROTECTING A CONCEPT NOTE

An idea per se has no copyright. But if the idea is developed in a ‘concept’

fledged with adequate details, it is capable of registration under the
Copyright Act. In Anil Gupta v Kunal Dasgupta,5 this fact was discussed
in detail. In this case the plaintiff conceived the idea of producing a reality
television show on the process of match making to the point of actual spouse
selection and named it as “Swayamvar”. Amongst few others he also
discussed this concept with the defendant under a confidential agreement in
1998 and a concept note was sent to him for the purpose of the production of
a TV serial. However it was brought to the notice of the plaintiff that the
defendant was going to launch a high reality show by the name of “Shubh
Vivah”. Thus a suit was filed by the plaintiff for copyright violation of the
‘concept of reality show of match making and also violation of the
confidential agreement.

The Court held that copyright could exist in respect of reality show. It
further observed that if an idea is developed in a “concept note” fledged with
adequate details, it is capable of registration under the Copyright Act. The
Court thus disallowed the defendants from launching its proposed T.V show
‘Shubh Vivah’ as the same was based on the concept of ‘Swayamvar’
conceived by the plaintiff. The Court opined that, ‘the novelty and
innovation of the concept of the plaintiff resides in combining a reality T.V
show with a subject like match making for the purpose of marriage. The
plaintiff conceived a reality TV programme of matchmaking and spouse
selection by transposing mythological ‘swayamvar’ to give prerogative to
woman to select a groom from variety of suitors and made it presentable to
audience and explored it for commercial marketing.

The Court further held, ‘that in modern day, when the small screen has taken
over the earlier means of mass communication, idea (concept/theme/script)
of a broadcaster has wider potentiality of capitalizing revenue and if that
idea (concept/theme/script) is not protected in given case, a person who has
5
2002 (25)PTC (DEL)
conceived an idea to be translated into reality TV show which could be key
to its success with audience then channels with their enormous resources
could always be in a better position to take the idea (concept/theme/script)
from any author and then develop it at their own end. In such cases, the
original author of the concept will be left high and dry. In such cases thus an
interim injunction maybe issued restraining such breach of confidentiality of
the concept/theme/script else it would catastrophic for the television
industry.

In this case the Court concluded that ‘Shubh Vivah’ based on concept of
spouse selection in any form as a reality TV show cannot be permitted, as
that has been conceived by the plaintiff in the first instance’. The Court
explained by further stating that, ‘To depict matchmaking in the form of a
reality TV show or spouse selection is the theme of the concept. How it is
done, who plays the anchor, gifts are given or not, maybe various elements
which may differ but if Shubh Vivah is based on match making process to be
televised on the TV as a real life drama, the defendants cannot reap the
fruits of labour put in the plaintiff in this regard.

Thus in the above case, the Court nearly carved an exception in the case of a
‘concept note’ and distinguishing it from an ‘idea’ simpliciter, thereby
allowing the former with protection under the Copyright Law. The main
basis of such an exception is indicated towards the change in technology and
the fact that in the television industry how much it matters as to who has
gone first with a particular concept such as a reality show. It gave an
‘economic rationale’ for protecting the copyright in Concept Notes for TV
shows.
 URMI JUVEKAR CHIANG V GLOBAL BROADCAST NEWS LTD6.

In this case the issue of protecting ‘concept notes’ was dealt with elaborately
by the Bombay High Court. The plaintiff, who claimed to be a reputed script
writer having scripted various films and television serials, created a
television programme called ‘Work in Progress’. In this, she conceived the
idea of a reality show that would follow citizens from different parts of the
country as they set out to solve a civic problem of their choice in their
locality. She then transformed her idea into a concept note and discussed the
same with CNN-IBN so that the two together could make the television
programme. However the defendants used the idea and made their own
programme titled ‘Summer Showdown’ and started telecasting it from May
2007. After this the plaintiff sought injunction on the grounds that the
defendants have committed a breach of confidentiality and infringement of
copyright of the plaintiff in ‘Work in Progress’.

The plaintiff asserted that the concept note and the production plan were
confidential informations and that she had approached the defendants with
the basic understanding that the latter would either accept it or reject it.
Instead they misappropriated the same and used it for their own benefit.
Further she also stated that her concept note was a literary work within the
meaning of Section 2(o) of the Copyright Act, 1957 and so the plaintiff has
exclusive rights to reproduce it or adapt it to make a television programme.
While deciding the matter the Court brought notice of the decision in Zee
Telefilms Ltd v Sundial Communications Pvt Ltd 7,wherein a clear
distinction was brought about between breach of confidence and

6
2008 (36) PTC 377 (BOM)
7
2003 (27) PTC 457 BOM (DB)
infringement of copyright. The following differences were thus expounded
in the above case:

(i) The law of breach of confidence is broader than the proprietary

right of copyright
(ii) There can be no copyright of information or ideas and it is not
infringement of copyright to adopt ideas of another or publish
information received from another, provided there is no substantial
copying in the form in which those ideas are embodied. But if the
ideas or information have been acquired by a person under such
circumstances that it would be a breach of good faith to publish
them and he has no just cause or excuse to do so and injunction can
be granted.
(iii) The distinction between copyright and confidence becomes all the
more important in the case of unpublished manuscripts/works
submitted, and not accepted, for publication.
(iv) Whereas copyright protects material that has been reduced to
permanent form, the general law of confidence may protect either
written or even oral confidential communication.
(v) While copyright is good against the world generally confidence
operates against those who receive ideas or information in
confidence.

The Court further enumerated the principles on which the action of

breach of confidence can succeed as:
1. The plaintiff has to identify clearly what was the information he was
relying on
2. the plaintiff had to show that it was handed over in circumstances of
confidence
3. The plaintiff had to show that it was information of the type which
could be treated as confidential
4. The plaintiff has to show that it was used without license or there was
a threat to use it.

On the first and second aspect the Court found that the information in
relation to which breach of confidence is alleged is the concept note of
‘Work in Progress’ which was indeed handed over to the defendant in
confidence. On the third aspect the Court observed that the plaintiff claiming
confidentiality in her concept notes and production plan, which could be a
information against which confidentiality can be claimed. And on the last
point the Court finally alleged that the essence of the law of breach of
confidence is that whatever may be the origin of the information, the person
who has obtained it in confidence will not be allowed to use it as a
springboard for activities detrimental to the person who provided such
information.

As regards the claim of violation of copyright is concerned the court applied

the principles that were laid in R.G Anands case. The Court compared the
plaintiff’s work and the defendant’s work and found that the format,
treatment, structure, expression and presentation of the programme of the
defendant are materially similar to that of the plaintiff’s. The Court found
that the impression after going through both of the works viewed in the
perception of an average reader is that the defendant’s work is based or
taken from the original work of the plaintiff. It held that, ‘ The argument of
the defendants that there can be no copyright in the theme of citizen activism
towards civic problems, and that the said theme cannot be considered to be
original or entitled to copyright protection in favour of the plaintiff
exclusively, would have been valid only if this Court were to find that the
treatment, format, structure, expression and presentation of the programme
‘Summer Shutdown’ were materially dissimiliar and do not resemble the
literary work of the plaintiff.’ Therefore the Court held that the defendant
had violated the copyright of the plaintiff.

Hence in this case, the Court asserted the violation of copyright of the
plaintiff in the concept note, primarily on the ground that the defendants
copied the format and expression of the theme of citizen activism and not
that the theme was copied. It laid more emphasis on the format and
presentation of the theme than the theme alone. In this manner it
distinguished itself from the decision in Anil Gupta’s case wherein
emphasis was laid on the very theme of matchmaking being telecasted on a
reality show.
 ZEE ENTERTAINMENT ENTERPRISES LTD V GAJENDRA
SINGH8

In this case, the Court observed that ‘As a general proposition, a ‘concept
note’ which contains literary work, is entitled to be protected under the
Copyright Act 1957, if it contains work which is copyrightable under the
said Act. It held that there is no magic in the expression ‘concept note’. It
appears to be an expression used in the film/television industry. The mere
use of the term however would make no difference; rather it would be
necessary for a court in each case, to examine whether the concept note
constitutes work which is copyrightable and entitled to protection under the
provisions of the Act.

In the present case, the plaintiff had alleged that the defendant have copied
the former’s game show – Antakshari in all material respects. The
differences are merely cosmetic. But the defendant contended that the
concept note recorded only a concept, there was no novelty in it and
therefore, did not pass the test of copyright. It was also contented that the
Antakshari is an age old game played in almost every household and school.
So, the concept was infact well known and already in public domain.

The Court observed that, “The plaintiff is not entitled to a monopoly in the
concept of ‘testing a person’s knowledge and memory of Hindi film music.’
It is the manner in which the contestants knowledge and memory is tested,
which accounts for novelty”. Further, the plaintiff had further developed and
indeed enhanced a general idea viz the test of a person’s knowledge and
memory of Hindi film music. It had evolved new and different methods of
testing a person’s knowledge and memory of Hindi film music. It has not
limited its exercise of judgment and skill only to the traditionally well
known method. Accordingly the Court held, that what the defendants have
copied have copied is not mere general idea, not the well known concept,
but the plaintiff’s novel presentation and pattern thereof both in form and
content.

8
2008 (36) PTC 53 (BOM)
 CONCLUSION

The above observations appear to come dangerously close to protecting an

idea per se. It seems infact that the Court is carving out an exception to the
rule, that idea per se are not protected by Copyrights, in order to
accommodate the special circumstances of the ‘small screen’. One struggles
to understand, where, under well established principles of copyright law one
can place this reasoning. The struggle is partly the result of the holding of
the Supreme Court in R.G Anand Case, where it was held that there can be
no copyright in ideas, themes, and plots.

But as it can be well perceived in the above mentioned cases, there exists a
vivid distinction between an idea merely and a well developed concept note.
A concept note seems much advanced than an idea in terms of the clarity
and form/expression that is given to it. While an idea maybe vague, the
owner of a concept note works sufficiently well to define and develop the
narrow contours within which its concept note shall exist. He puts in an
adequate amount of labour, skill and hard work to develop what is calls as a
concept note. It would not call for much to adjust to this exception in the
Copyright law as the very purpose of it is to protect the labour and skill that
an individual puts in his work.

Rather, to rationalize one could say that instead of conflicting with the
judgment of the Supreme Court in R.G Anands Case, the exception of a
concept note as copyrightable is well within the boundaries of the said
decision. For even there what the Court asserted to protect was the ‘form,
manner, expression and arrangement given to an idea.’ A concept note being
the advanced stage of an idea could be brought into the parameters so laid.

Law should always take notice of the changes around and a good legislation
is only that which progresses with the progressing society. After all, one
seeks legal protection for ones benefit and not for further deterioration.
However as mentioned in the Zee Entertainment Case (2008), the Court
must necessarily in each case, examine whether the concept note constitutes
work which is copyrightable and entitled to protection under the provisions
of the Copyright Act. Else under the guise of a concept note the very
fundamentals of the Copyright law of not protecting an idea merely could be
destroyed.

Lastly speaking the language of equity and fairness, it cannot be denied that
concept notes that are submitted by individuals need to be given protection,
in order to encourage ordinary people to communicate their ideas and see
their fruition in TV programmes. Else it may lead to a result wherein no
individual who has a concept for a TV program, movie or screen play would
feel comfortable disclosing it to a prospective producer or TV channel.
 REFERENCES

1. The Copyright Act,1957

2. Cases and Materials on Law of Intellectual Property Law, Part I,

Faculty of Law, University of Delhi

3. www.manupatra.com