P UBLIC D OMAIN, C REATIVE F REEDOM VS. C OPYRIGHT : A C ONFLICT Snehashish Ghosh School of Law, Christ University

Interplay between Public Domain, Freedom of Expression and Copyright “The general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use.” International News Serv. v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting)

Freedom of Speech and Expression Right to receive information Right to disseminate information

Justifications for copyright being beyond the purview of Article 19(1)(a) of the Constitution a reasonable restriction under Article 19(2) Legislative Competence (Schedule VII, Entry 49 of List I of the Constitution) Limitation and Exceptions to Copyright provides a reasonable scope to exercise freedom of Speech and expression cont.

Economic incentive vis-à-vis promotes free speech and production Right to steal is not included within the freedom of speech and expression

The Idea/Expression Dichotomy ‘original’ u/s 13 of the Copyright Act, 1957 Sweat of the brow Modicum of creativity Doctrine of merger.

Copyright and Public Domain Sweat of the brow : conferring copyright on works merely because time, energy, skill and labour was expended, that is, originality of skill and labour

doctrince of ‘modicum of creativity’ “in the sense that by virtue of selection, co- ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author”. - Eastern Book Company v. DB Modak

Results of the use of the principles to determine orignality pre-existing data which is in public domain Encroaching into public domain

Conflict between Creative Freedom and Copyright Creativity when expressed though words, musical notes, strokes of a paint brush, etc is subject to copyright. Copyright provides protection to the expression of the idea and not the idea itself. An idea may be expressed in many different ways but a specific form or way of expression of that idea can protected under copyright law.

For example in the Bandit Queen Case, the Supreme Court allowed the screening of the cinematographic work which was put to the stringent test of censorship in India. The idea or the concept behind the cinematographic work could have been portrayed in many different ways; however, the mere expression of the idea in that particular manner was challenged on the grounds of reasonable restriction to the freedom of speech and expression but the idea itself was not challenged.

Conclusion The freedom speech and expression does not only protect freedom of ideas but also the form in which it is expressed. Copyright law curtails this freedom of expression.

Is Doctrine of Merger a viable solution? Chancellor Masters of Oxford v. Narendra Publishing House “This doctrine posits that where the idea and expression are intrinsically connected, and that the expression is indistinguishable from the idea, copyright protection cannot be granted. Applying this doctrine courts have refused to protect the expression of an idea that can be expressed only one manner, or in a very restricted manner, because doing so would confer monopoly on the idea itself.”