Confidentiality-copyrights interplay in entertainment

By Manisha Singh and Shristi Bansal, LexOrbis
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The need to determine authorship is of paramount importance for the commercialization of intellectual property. Confidentiality and copyright are different areas of law, which seldom coincide when it comes to protecting originality or the “idea” in a concept in the realm of confidential relationships.

Manisha Singh
Manisha Singh

The equitable doctrine of confidentiality states that information received in confidence should not be unfairly exploited by wrongful use. It has long been clear that the courts can restrain a breach of confidence arising out of a contract or any right to property. In the entertainment market, writers and production houses frequently exchange content in the form of scripts, screenplays, plots, etc., with a mere promise of confidence, which can lead to misuse of confidential information and hence breach of trust.

Section 16 of India’s Copyright Act states that though no one shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the act, that does not imply the abrogation of “any right or jurisdiction to restrain a breach of trust or confidence”. While copyright safeguards the expression of an idea, breach of trust/confidence protects the expressed idea when communicated to a third party.

Supreme Court decision

In the recent Supreme Court judgment in Jyoti Kapoor v Kunal Kohli, the plaintiff was the author and first owner of copyright in the original literary work, that is, the script and screenplay for a film, which was disclosed in circumstances of confidence to the defendant. As their deal collapsed, the defendant started working on a project with a storyline similar to the plaintiff’s, making unauthorized use of the storyline to produce a film, without the plaintiff’s consent.

The court in its landmark decision observed that the screenplay clearly was disclosed in confidence. After analysing and comparing the screenplays of the plaintiff and the defendant, the court stated that the subject matter of both was far from being “novel”. However, a work can be “novel” or “original” when different elements (which may be public knowledge) combine to form a unique combination.

Exploring the mesh of confidentiality and copyright infringement, the court explained that copyright law is, in essence, concerned with the negative right of preventing the copying of existing tangible material. Therefore, in every copyright action the plaintiff must first establish a work in fixed form. Once this is proved, it is the expression of an idea or a plot in this form which is accorded copyright protection and not the idea or plot itself.

Shristi Bansal
Shristi Bansal

The right of protection of trust or confidence is totally different. If a defendant is proved to have used confidential information, directly or indirectly obtained from the plaintiff, without the plaintiff’s consent, express or implied, he or she will have infringed the plaintiff’s rights. The court ordered compensation of ₹2.5 million (US$38,000) along with due credit attributed to the plaintiff.

It is pertinent to note that it is not only motion pictures that have attracted such interpretations by the courts, but also disputes involving productions for small screens. The courts in eminent cases such as Zee Telefilms Ltd v Sundial Communications Pvt Ltd (2003), Urmi Juvekar Chiang v Global Broadcast News Limited (2007), and Beyond Dreams Entertainment v Zee Entertainment Enterprises (2015), have repeatedly held that that the right to restrain publication of work on the grounds that such publication would be a breach of trust or confidence is a broader right than the proprietary right of copyright.

Intrinsic differences

There can be no copyright on ideas or information, so to adopt or appropriate ideas of another or to publish information received from another does not constitute infringement, provided there is no substantial copying of the form in which those ideas have, or that information has, been previously embodied. But if the ideas or information have been acquired by a person under circumstances in which it would be a breach of good faith to publish them and the person has no valid ground for doing so, the court may grant an injunction against such publication.

Copyrights can easily be distinguished from confidentiality. Copyrights are enforceable against the world generally while confidentiality operates against those who receive information or ideas in confidence. Copyrights have a fixed statutory time limit, which does not apply to confidentiality, though in practice the application of confidentiality usually ceases when the information or ideas become public knowledge. Further, the obligation of confidence rests not only on the original recipient but also on any person who received the information with knowledge acquired at the time or subsequently that it was given in confidence.

Indian courts have realized the growing consciousness of confidentiality in entertainment industries and taken a balanced approach towards protecting confidential information while promoting creativity.

Manisha Singh is a founding partner of LexOrbis, where Shristi Bansal is an associate.

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