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The Doctrine of Independent Creation

Patent law grant rights, depending on the jurisdiction, only to the first person(s) either to file a patent application in respect of patentable subject-matter, or to invent the patentable subject-matter. As such, once a patent is granted in respect of a particular invention, no other person has the right to exploit it during its subsistence without the permission of the patentee, even if the other person has developed the same invention independently (without copying from the patentee).

In stark contrast to this, copyright is a form of intellectual property which allows multiple persons to own the rights in identical or substantially similar works provided that those works have been independently created. In fact, independent creation is one of the foundations of copyright law. Copyright — at the time of the creation of a protectable work — only prohibits the reproduction or copying of a pre-existing protected work. Therefore, if an author were to independently create a work which bore a striking resemblance to a protected work already in existence, without reference to the pre-existing work, he would (usually) own the copyright in the subsequent work which he had created.

Thus, there would be two distinct ownership trails, and the owners of the rights in the two (or possibly more!) independently created works would be allowed to exploit, and enjoy, the rights in their own works without reference to the owners of the other similar works. Thus, this doctrine, as is probably evident by now, exempts from liability for copyright infringement the author-owner of a copyrightable work which is substantially similar (or even identical) to an existing work which is protected by copyright.

Unfortunately, like a great part of copyright law, the doctine is not encoded in statute even though it seems to have been established as far back as in the 1807 English case of Roworth v. Wilkes. The Indian Copyright Act, 1957, does not explicitly state that independently created works are worthy of being protected by independent copyrights regardless of any similarity they may bear to pre-existing protected works. Nonetheless, relying on scholarship, doctrine and foreign caselaw, Indian courts have shown a tendency to respect the doctrine of independent creation.

In the 2002 case of Star India Private Limited v. Leo Burnett (India) Private Limited, which dealt with films, for example, the Bombay High Court held that there was no infringement where the production of the impugned film was independent. In its decision, the Court quoted paragraph 7.98 of Copinger and Skone James on Copyright (Fourteenth Edition) where the authors stated:
"It is an infringement of the copyright in a film to make a copy of it, or a substantial part of it, whether directly or indirectly and whether transiently or incidental to some other use. This includes making a photograph of the whole or any substantial part of any image forming part of the film. As with a sound recording, it is not expressly stated that copying of a film includes storing it by electronic means but again it is suggested that it does. Again, the copyright in a film is infringed if the recorded moving images are directly or indirectly copied but not if the same or similar images are recorded independently, for example by s the subject matter of the film. Again, however, underlying works such as the screenplay may be infringed by such means."
The legal position is therefore clear, as long as one refers to case law, even though the statute does not provide any clear guidance on the existence of independent copyrights in works which have been independently created. This does not, however, throw any light on exactly how the doctrine of independent creation came to be incorporated in Indian copyright jurisprudence, although, in all likelihood, it was simply an import from England. Being an English import, if indeed that is what the doctrine is, does not, however, justify its existence of itself.

Questions of justification aside, it is inarguable is that the doctrine of independent creation is one of the cornerstones on which copyright law rests. And even if — like many other aspects of copyright law — there does not seem to be a coherent or convincing analysis of why that is the case, the theoretical basis of the doctrine may be left in the realm of academia, without impinging on procedural considerations.

From a practical point of view, independent creation has the potential to create tremendous evidentiary problems in terms of being able to establish whether or not the creation of a subsequent work is in fact independent of any reference to a protected pre-existing work. There are no clear rules regarding on whom the burden of proof would lie, and how independent creation may be established. In fact, Roworth v. Wilkes itself stated:
"But if the similitude can be supposed to have arisen from accident ; or necessarily, from the nature of the subject ; or from the artist having sketched designs merely from reading the letter-press of the plaintiff's work,—the defendant is not answerable. It is remarkable, however, that he has given no evidence to explain the similitude or to repel the presumption which that necessarily causes."
Although at first glance, given that the doctrine may operate as a defence to allegations of copyright infringement, the burden of proving independent creation could be considered to lie on the defendant — with the plaintiff only having to prove substantial similarity to make a case of infringement. However, the burden of proof could easily wind up “oscillating” (for lack of a better term) with the plaintiff, possibly, having to substantiate assertions of non-independent creation.Unsurprisingly, the greater the similarity, the harder it would be for a defendant to avail of the doctrine of independent creation — assuming, of course, that the defendant had access to the pre-existing work, and that other doctrines such as merger didn't come into play.

Thus, even though independent creation is clearly recognised by the law as a defence to copyright infringement, depending on the circumstances, it may not be the most best defence to adopt in cases of infringement. If not anything else, proving that a work has indeed been independently created may be well nigh impossible to accomplish.

(This post is by Nandita Saikia and was first published at Indian Copyright.)