Anirban Aly Mandal
B.B.A., L.L.B. (Symbiosis Law School Hyderabad)
Intellectual Property Rights is the cornerstone of development and enhancement of contemporary literature, performing arts and technology. The framework provided by IPR lends a model of incentive to the right-holder for the protection of their work. In other words, it provides a right-holder with a platform where they can hone their craft with the outlook of commercialisation and at the same time make the field of creative arts and technology more attractive to potential content creators and innovators. Since the inception of Intellectual Property Rights, there has been a substantial influx of new technology. This has led to a wave of swift and efficient industrialisation. The Domino theory can be applied to uncover the rationale behind this surge of globalisation in today’s world and its roots can be traced back to the very genesis of IPR. Hence, it should not be a surprise that the realm of Intellectual Property Rights has developed to the extent it has in today’s world.
An interesting example of the said development can be found in the domain of Copyright Infringement. The earliest instances of copyright infringement in US law protected the right holder from only direct and prima facie replication of the right-holder’s original work(1). Even translations were not within the ambit of copyright infringement(2). However, with the passage of time and development of Copyright law, even derivative(3) and transformative works now come within the ambit of copyright infringement.
In 2020, another question cultivates itself before the Courts which can develop the concept of copyright infringement even further. Does Copyright extend merely to the written word or does it transcend beyond that and concerns itself with the inherent personality and traits projected by the subjects/characters of the right-holder’s work? This comes after the estate of Sir Arthur Conan Doyle, the original author and creator of Sherlock Holmes sues Netflix and the creators of the Netflix Movie – Enola Holmes on the grounds that, the depiction of Sherlock in the movie is derivate, even though the movie does not borrow plot points from the original, as Sherlock is shown as an empathetic character in much the same way as Doyle portrayed him in his works.
Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.
1 Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841); Respondent sued for replicating, in their entirety, hundreds of pages of George Washington’s letters, in a volume on Washington’s life. The Court ruled against the respondent.
2 Stowe v. Thomas, 23 F. Cas. 201; Respondent translated Uncle Tom’s Cabin in German (Die Freie Presse) and sold it in the United States without the permission of the Author. The Court ruled in the favour of the respondent stating, “the same conceptions clothed in another language cannot constitute the same composition; nor can it be called a transcript or ‘copy’ of the same ‘book.'”.
3 Chapter 1, Section 106, U.S. Copyright Act, 1976