Intellectual Property Law

IPR

Gangavishnu Shrikisondas v. Moreshvar Bapuji Hegishte and Others –  ILR 13 Bom 358

A new arrangement of old matters will give a right to the protection afforded by the law of copyright. If anyone by pains and labour collects and reduces it as a systematic compilation in the form of a book it is original in the sense that that entitles such person to the copyright.

Agarwala Publishing House v. Board of High School and Intermediate Education and Another, AIR 1967 All. 91,

The question involved in the case was whether the question papers are `original literary work and come within the purview of Section 13 of the Copyright Act, 1957. It was urged that no copyright can exist in examination papers because they are not original literary work. It was held that the original literary works referred to in Section 13 of the Copyright Act, 1957, are not confined to the works of literature as commonly understood. It would include all works expressed in writing, whether they have any literary merits or not. This is clear from the definition given in Section 2(o) of the Act which states that literary work includes tables and compilations. The Court further held that the word original used in Section 13 does not imply any originality of ideas but merely means that the work in question should not be copied from some other work but should originate in the author, being the product of his labour and skill.

V. Govindan v. E.M. Gopalakrishna Kone and Another – AIR 1955 Madras 391

The Court held that in law books and in books as mentioned above there is very little amount of originality but the same is protected by law and no man is entitled to steal or appropriate for himself the result of another’s brain, skill or labour even in such works. The Court further clarified that where there is a common source, the person relying on it must prove that he actually went to the common source from where he borrowed, employing his own skill, labour and brains and that he did not merely copy

C. Cunniah & Co. v Balraj & Co., AIR 1961 Madras 111

In order to obtain copyright production for literary, domestic, musical and artistic works, the subject dealt with need not to be original, nor the ideas expressed be something novel. What is required is the expenditure of original skill or labour in execution and not originality of thought.

K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 

The expression “property” in Article 300-A confined not to land alone, it includes intangibles like copyrights and other intellectual property and embraces every possible interest recognised by law.

State of A.P. v. National Thermal Power Corpn. Ltd. [(2002) 5 SCC 203]

The Supreme Court, noticing the earlier authorities, held that the definition of “goods” in Article 366(12) of the Constitution was very wide and included all kinds of movable properties. It was held that the term “movable property” when considered with reference to “goods” as defined for the purposes of sales tax cannot be taken in a narrow sense. It was held that merely because electric energy was not tangible or could not be moved or touched like, for instance, a piece of wood or a book it would not cease to be movable property when it had all the attributes of such property. It was held that electricity was capable of abstraction, consumption and use which, if done dishonestly, was punishable under Section 39 of the Electricity Act, 1910. It was held that electric energy could be transmitted, transferred, delivered, stored and possessed in the same way as any other movable property. It was held that electricity was thus “goods” within the meaning of the Sales Tax Act.

M.P. Cement Manufacturers’ Assn. v. State of M.P.[(2004) 2 SCC 249]

It was held that there was no legislative competence in the State to levy cess as Parliament had exclusive legislative competence in respect of electricity  by virtue of Entry 84 in List I of Schedule VII. However, in this case also it has been held that electricity was “goods” and that the State would have competence to levy tax on the sale and consumption of electricity but could not levy cess on the production of electricity.

Associated Cement Companies Ltd. v. Commr. of Customs[(2001) 4 SCC 593]

The question was whether customs duty was leviable on technical material supplied in the form of drawings, manuals and computer disc, etc. The further question was if customs duty was leviable, how it was to be valued. In that case also it was inter alia argued that customs duty could not be levied as the drawings, designs, diskettes, etc. were not goods and that they only constituted ideas. It had been submitted that what was being transferred was technology i.e. the knowledge or know-how and thus, even though this may be valuable, it was intangible property and not goods.

CCE v. Acer India Ltd. [(2004) 8 SCC 173

The Supreme Court has considered in detail what a software program is. After so considering, it has been held that a computer and operative software are different marketable commodities. 

 Jagir Singh v. State of Bihar [(1976) 2 SCC 942

The general rule of construction is not only to look at the words but to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning according to what would appear to be the meaning intended to be conveyed by the use of the words under the circumstances. Sometimes definition clauses create qualification by expressions like ‘unless the context otherwise requires’; or ‘unless the contrary intention appears’; or ‘if not inconsistent with the context or subject-matter’. ‘Parliament would legislate to little purpose’, said Lord Macnaghten in Netherseal Co. v. Bourne [(1889) 14 AC 228 : 61 LT 125 (HL)] , ‘if the objects of its care might supplement or undo the work of legislation by making a definition clause of their own. People cannot escape from the obligation of a statute by putting a private interpretation on its language’. The courts will always examine the real nature of the transaction by which it is sought to evade the tax.”

Advent Systems Ltd. v. Unisys Corpn. [925 F 2d 670 (3d Cir 1991)].

It was held that “Computer programs are the product of an intellectual process, but once implanted in a medium are widely distributed to computer owners. An analogy can be drawn to a compact disc recording of an orchestral rendition. The music is produced by the artistry of musicians and in itself is not a ‘good’, but when transferred to a laser-readable disc becomes a readily merchantable commodity. Similarly, when a professor delivers a lecture, it is not a good, but, when transcribed as a book, it becomes a good.

That a computer program may be copyrightable as intellectual property does not alter the fact that once in the form of a floppy disc or other medium, the program is tangible, movable and available in the marketplace. The fact that some programs may be tailored for specific purposes need not alter their status as ‘goods’ because the Code definition includes ‘specially manufactured goods’.

The topic has stimulated academic commentary with the majority espousing the view that software fits within the definition of a ‘good’ in the UCC.

Applying the UCC to computer software transactions offers substantial benefits to litigants and the courts. The Code offers a uniform body of law on a wide range of questions likely to arise in computer software disputes: implied warranties, consequential damages, disclaimers of liability, the statute of limitations, to name a few.

The importance of software to the commercial world and the advantages to be gained by the uniformity inherent in the UCC are strong polity arguments favoring inclusion. The contrary arguments are not persuasive, and we hold that software is a ‘good’ within the definition in the Code.”