Idea versus expression: A story of infringement of stories

Leafing through the Human Of Bombay Stories Pvt. Ltd. versus POI Social Media Pvt. Ltd. & Anr case.

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HUMANS of Bombay and People of India are two storytelling platforms that string through the stories and experiences of people and their lives and post them on their websites, channels and social media pages.

Recently, both platforms went into an infringement tussle as Humans of Bombay (plaintiff) accused People of India (defendant) of infringement of copyright and passing off.

Humans of Bombay was founded in 2014 by the famous writer and photographer Karishma Mehta, also the writer of the book Humans of Bombay.

People of India came into being in 2019, sown by Drishti Saxena. Both platforms work on the same line of sharing stories of individuals via blogs, videos and photographs. Humans of Bombay, older as a platform, might have been the trailblazer of this style in India, but there follows a trail!

However, it is worth noting that before Humans of Bombay became a storybook for human lives, there existed 'Humans of New York'(a US-based platform) that worked on the same idea and concept of storytelling.

The controversy, in précis, is that Humans of Bombay has alleged that the People of India had identical content as that of the plaintiff and even used a lot of its pictures or videos over their social media platform, hence infringing their exclusive content and seeking an injunction against the platform.

Infringement and passing off

Section 2(m) of the Copyright Act defines the term infringing copy, for a literary or artistic work, as its unauthorised reproduction. In generic terms, copyright law seeks to protect the exclusive right of the creator or the authorised users of the right in a creative work that operates as their intellectual property right.

Section 14 of the Act lays down the meaning of copyright as an exclusive right to do or authorise the doing of any acts listed in the Section regarding the work or the substantial part of it, which is the subject matter of the copyright. This includes reproduction of work in material form, issuing copies of the work or to communicate the work to the public.

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Adjudicating the issue, the Delhi High Court held that there can be no copyright in an idea itself. However, the Copyright Act does work against the infringement of the expression of an idea. As the expression of an idea, it has an element of individuality, creativity and distinctiveness.

Section 51 of the Act provides instances of copyright being infringed, i.e., when a person in an unauthorised manner does anything, the exclusive right of which rests with the copyright owner.

The Supreme Court, in the case of R.G. Anand versus Deluxe Films, held that it is not a prerequisite that the infringement in question should be an exact replication of the original, rather its substantial resemblance with the original is sufficient to make it an infringing copy.

'Passing off' is an act of misrepresentation or deceptive similarity regarding the nature or character of goods, where the alleged goods are passed off or presented as goods of the aggrieved party, often with an intent to or effect of riding over the goodwill of the rival work or acts detrimental to their goodwill.

The Supreme Court, in Cadila Healthcare Limited versus Cadila Pharmaceuticals Limited, asserted that for the allegation of 'passing off' to be sustained, there has to be some form of deception or harm to the original owner's reputation, i.e., the classical trinity of misrepresentation, goodwill and damage.

Ideation, expression and the dispute

Many other platforms function on the concept of storytelling. There have been instances where the images used by the two platforms in dispute have been identical or substantially imitative.

The Delhi High Court duly noted that there can be no claim of exclusive possession over the concept of 'storytelling' itself, however, the different platforms have to work through their own specific and different creative expressions while they choose to function as storytellers.

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So the manner of the story narration by a platform, i.e., the writing, articles, images or literary/creative content, would be exclusive to each platform and protected by the Copyright Act.

There lies this difference between imitation and inspiration. Humans of Bombay may have been inspired by the concept of Humans of New York and such may have been the case of the other platforms that followed, but that cannot be equated with imitation or infringement.

As far as 'passing off' comes to question, 'passing off' works when the content is passed off or distributed in a manner that it creates a misrepresentation or deception of being the content of the other platform or brand and consequently rides over the goodwill of the said platform (to which the content does not actually belong) or works in the depreciation of the said platform or brand.

As a reader, this does not seem to be the case in this matter, as these pages hold their strength via their loyal readers and followers of the source page and brand. Reading a story on a different page or platform would entail for them to be a different story book by a different author and would fail to misrepresent, unless the content or the story itself is copied, and in such a scenario it would make a case of copyright infringement.

The Delhi High Court asserted that platforms cannot replicate, imitate or infringe upon the copyrighted work of others. However, the court clarified that if the images or videos used in the content are sent to the concerned platform by the individuals to depict their stories, then such images or videos would not be able to stand for copyright claims.

The copyright ownership over such pictures or videos would lie with the respective individuals and if they choose to send the same images or videos to more than one platform, then the platforms cannot be made liable for infringement.