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REVEALING THE COMPLEX INTERSECTION: THE POINT OF INTERACTION BETWEEN COPYRIGHT AND CONFIDENTIALITY

BY ISHETA T BATRA


Creativity is challenging, and being creative is not everybody’s cup of tea. This is why artists are held in very high regards in society, considering they depend on creativity to earn their bread and butter. Therefore, the media & entertainment industry, which largely comprises of a market for creative works of artists is one of the most competitive industries in the world. Hence, artists have to constantly push boundaries to generate creative content on a regular basis to earn and maintain a livelihood, considering the level of competition in the industry.


In such light, copyright protection of works, and the confidentiality of such works becomes a fundamental concern in protecting the interests of an artist. Without the two, there would be little to no economic motivation for artists to indulge in their art forms. In today’s world, the realms of creativity, innovation, and protection of intellectual property have evolved in intricate ways. Two legal doctrines that often intersect, copyright infringement and confidentiality law, play crucial roles in maintaining the delicate balance between fostering creativity and safeguarding proprietary information. While copyright law offers protection to tangible expressions of ideas, confidentiality law, on the other hand, provides a shield for the intangible but valuable ideas themselves.


In one of the talked about cases, the Hon’ble Bombay High Court delved deep into the two concepts in the case of Tarun Wadhwa v. Saregama India Limited (COMIP 4366/2021) . The intersection of copyright protection and the breach of confidentiality within this particular case offers a unique lens through which to explore the intricate legal dynamics at play in such scenarios.


In tracing the jurisprudential evolution sparked by the Tarun Wadhwa case, this article endeavors to contribute to the ongoing discourse on the delicate equilibrium between creative expression, intellectual property protection, and the preservation of confidential information. Through this exploration, it aims to shed light on the intricate web of legal principles that govern breaches of confidentiality in copyright cases, ultimately enriching the collective understanding of this intricate legal terrain.


Facts of the Case

The plaintiff, Mr. Tarun Wadhwa had developed a synopsis for a comedy about zombies under the title ‘Haila! Zombie’, and had registered the synopsis with the Screen Writers’ Association. He immediately shared the synopsis with Saregama, the defendant (“D1”), expecting to develop the synopsis project into an audio-visual work. Upon receiving the synopsis, D1 gave its feedback and asked the plaintiff to submit a fully developed and complete screenplay based on the synopsis. Accordingly, the plaintiff developed a first draft of the screenplay and submitted the same to D1, while also registering the first draft with the Screen Writers’ Association.


D1 subsequently gave its review on the first draft and suggested a few changes to the screenplay and asked for a second draft of the same. The plaintiff accordingly made changes to the screenplay and submitted the same to D1 while also registering the second draft with the Screen Writers’ Association. However, upon receiving the second draft, D1 replied with a detailed critique of the screenplay and communicated to the plaintiff that it is not interested in any further collaboration with the plaintiff with regard to the screenplay in question.


Over a year after the plaintiff submitted the second draft of his screenplay, D1 announced the release of its forthcoming film titled ‘Zombivili’, a film that portrays the issue of class differences in society using the ‘zombie’ theme. The plaintiff demanded a private screening of the film before its release, but the same was denied by D1.


Subsequently, the plaintiff filed a suit against Saregama and Mr. Mahesh Iyer (“D2”), the screenwriter of the impugned film ‘Zombivili’, for copyright infringement and breach of confidentiality.


Issues

The Hon’ble Court had to decide on the following questions:

  1. Whether the defendants infringed the copyright of the plaintiff? and

  2. Whether the claim for breach of confidence by the plaintiff conforms to the necessary legal standards?

Judgment

The Hon’ble Court, in answering the first issue, analyzed the concept of ‘idea-expression dichotomy’ under copyright law. In doing so, the Court iterated that the concept of zombies is not new to movie or literature, and therefore to make a case of copyright infringement, the plaintiff must establish that the expression contained in his screenplays and synopsis is copied by the defendant, and not merely the elements or ideas contained therein. Therefore, with respect to the first issue, the Court held that “There is no copyright in an idea. It exists only in a particular expression of an idea, that is to say, how individual elements, none of which are in themselves susceptible to copyright protection, are put together. If copyright is claimed in the arrangement or assembly, it must be shown that that arrangement has been substantially copied. It will not do to say that known elements have been put together in some form, and that those elements also feature in the other wozrk. Even if the two works are thematically the same, but treated and presented differently, there may be no question of copyright infringement. Incidental co-incidences are not copyright infringement. Infringement is established only by clear and cogent evidence.” Accordingly, the found that there was no case of copyright infringement made out against the defendants.


The Court, with respect to the second issue, analyzed the interplay between confidentiality and copyright infringement, and the established Indian and common law positions on breach of confidentiality. The Court noted that the plaintiff did not precisely identify the information which is to be treated as confidential, and noted that D2 was not in employment of D1 and had no chance of being bound by confidentiality when the plaintiff shared his synopsis and screenplays with D1. Accordingly, the Court held that “for a cause of action in breach of confidence to succeed there must be precision, there must be originality, and there must be completeness. All the required elements of confidentiality must be shown. Since the plaintiff failed to establish the required elements of confidentiality, the Court ruled that no case of breach of confidentiality was made out against the defendants.


Takeaways of the case

The following are the key legal principles governing a breach of confidentiality in copyright cases, as established by the Tarun Wadhwa case:

  • Confidential information can be protected even if it is not protected by copyright.

  • The information must be communicated in confidence.

  • The information must have the potential to be commercially exploited.

  • The information must have been used or threatened to be used without the consent of the owner.

The Tarun Wadhwa case is a valuable resource for businesses and individuals who need to protect their confidential information. The case provides clear guidance on the legal principles that apply to breach of confidence in copyright cases.


Analysis

The media & entertainment industry, as mentioned above, is very competitive. On one hand, there are artists who are the creative backbone of the industry, and on the other, there are media & entertainment houses that form the economic backbone of the industry. Each demographic must have recourse in law to protect their interests. The legislature and judiciary, must therefore strike a fine balance between the freedoms and restrictions of sharing creative works amongst stakeholders in the industry.


With respect to copyright, it only exists in expressions, and not just ideas. Nobody can claim copyright over ‘zombies’ per se. However, a person can claim copyright over a story that he develops with ‘zombies’ in it. This ensures that nobody has monopoly over a particular idea, thereby removing any obstacle for creative and economic growth in the media & entertainment industry.


Confidentiality, is much broader than copyright, and extends even to ideas. However, the law must not be so broad that an idea, no matter how vague it is, is bound by confidentiality. This will be a huge impediment for other artists in the industry to develop their own expressions around an idea, thereby leading to stagnation of the media & entertainment industry. This is why, in order to prove a case for breach of confidentiality, a person must establish that the information or material that he shared was precisely identified, original, and complete. Vaguely shared information or un-original information cannot be accorded protection under confidentiality, as it would largely undermine the economic freedom of stakeholders in the media & entertainment industry.


In such light, the Hon’ble Bombay High Court has rightly upheld the fundamental principles of law with respect to confidentiality and copyright infringement, and consequently maintained a balance between the legal protections accorded to artists and media/production companies, in the media & entertainment industry.


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