INTELLECTUAL PROPERTY RIGHTS

[BBL 684]

CIA-1 COMPONENT – A ASSIGNMENT

TOPIC: EXTRACTION TEST IN INDIA

Submitted by: Submitted to:

Anirudh Vyas Ms. Hema K
1950507 Assistant Professor
6 BBA LLB ‘B’ School of Law
Christ University
Extraction/Substantial Similarity Test for Copyright in India
Copyright is the protection of various works in literature, music, art, drama, music and sound
among various sui generis works. The objective is to protect the work of the author from being
reproduced. The violation of copyright is known as copyright infringement. In the court of law,
the copyright owner must show proof that their work has been copyrighted and that this work
and the defendant's work have "substantial similarity" to the original work of the copyright
owner.

Courts frequently conclude that the infringer had access to the original work when two works
are remarkably identical. Several elements are used when determining if two works are
remarkably similar. For one thing, identical passages from both works are scrutinised for their
distinctiveness, intricacy, and complexity. Second, to see if two works are very similar,
unexpected or quirky aspects are introduced. Courts may look to see if the original creator's
work contains any unusual or distinctive aspects that were duplicated in the infringement.
Third, courts may look for faults in the infringing works that were present in the original works.
Fourth, the infringing work is examined to see if fictional features (such as phoney maps,
names, or locations) that appear in the original work are also included in the infringing work.
Finally, courts may look at whether the infringement tried to add any unpolished or unworked
parts to the infringing work in order to make it look different from the original.

The "Total concept and feel" test, which focuses on the visceral response of the average
observer or audience, or more accurately, the "lay observers' test," is a conventional way of
identifying substantial similarity. The purpose of the test is to see if a layperson would
recognise the purported copy as having been taken from the copyrighted work. The ordinary
observer is then used as a benchmark for determining whether or not there is sufficient
resemblance.

The "Extrinsic-intrinsic test," which is applicable to most literary works such as novels and
scripts, musical creations, and artwork, is the other technique. This test is made up of two parts.
The extrinsic test determines whether there was a considerable resemblance in the infringed
and original work's broad concepts. In contrast, the intrinsic test determines whether there was
substantial similarity in the protectable expression of both works.

Zechariah Chafee, a Columbia University professor, was the first to propose the “Pattern Test”.
In literary and fictional works, the pattern test is frequently used to establish the degrees of
resemblance between the copyrighted and infringing works. According to the pattern test, plot
components from both works are analysed to see whether there are any parallels or overlaps.
If there is a similarity in the "pattern" relative to the components of the storey and characters
in both works, courts may rule that infringement has occurred.

The "Abstraction-Filtration-Comparison" (AFC) test is another option. The AFC test consists
of three procedures that identify the considerable resemblance of a computer program's non-
literal parts.

When strong similarities between two works are discovered, one of the most popular defences
is fair use. When asserting fair use, a person acknowledges that the copyrighted material was
utilised for non-commercial and reasonable reasons. The fair use concept allows for the use of
copyrighted works for educational, parodic, commentary, news reporting, and research
purposes without seeking prior permission or licencing from the copyright owner. Using the
fair use argument, one might argue that duplicating copyrighted work or considerable
resemblance between both works (original and infringed works) is acceptable since it was done
for a purpose that fits within the scope of fair use.

The landmark judgement R.G. Anand v. Delux Films, handed down by the Indian Supreme
Court, clarifies the idea of substantial similarity. In this case, R.G. Anand, the author of Hum
Hindustani, sued Delux Films for allegedly creating a film that was a replica of his play. The
Supreme Court of India ruled that, despite certain similarities, the film did not infringe on the
play's copyright since there were significant differences between the two. Variances in the plot,
topic, characters, and climaxes differed.

The Bombay High Court recently ruled in Shamoil Khan v. Falguni Shah that copyright
protection exists in the subject, storyline, and storey arc that make up a literary work's
substance. The plaintiff made a story in Urdu called "Singardaan", published in a literary
journal in 1993, was translated into Hindi in 1994, and then included in the plaintiff's collection
of short stories in 1996. He claimed that the defendants' web series, 'Singardaan,' released on
the App' Ullu' and available on YouTube, plagiarised his work's storyline, narrative, characters,
and title. He asked for monetary damages and a temporary restraining order to prevent the
defendants from broadcasting the web series.