The Copyright Board, the pertinent forum to answer appeals filed under the Copyright Act, 1957 as per Section 72(1) of the Act, was witness to proceedings against the order of the Registrar of Copyrights. The appeal initiated by Enercon Systems Pvt. Ltd. [Enercon Systems Pvt. Ltd. v. Registrar of Copyrights 2008 (37) PTC 599 (CB)], pleaded against the order of the Registrar whereby he refused to register the literary works of Enercon.
On account of a delay in filling the proceedings, which as per S. 72, were to be initiated within three months of the order, the Board in the absence of any stating to the effect in the Act stated that the general provisions governing Civil Procedure would apply and in the event of a lack of opposition to the condonement plea of Enercon, decided to allow the appeal.
Enercon desirous of obtaining copyrights on its literary works titled "Contents of Corporate Campaign" and "Contents of Enercon Advertisement" had proceeded to the Copyright Office. The works comprise of text, design as well as illustration and original literary work and the copyright to the same vests in the company. However, Enercon had published the works prior to registration and had put the subject matter to use in continuum since then. The Registrar rejected to register the literary work on the ground the same contained advertisement slogans and general instructions only, which were not the subject matter of Copyright. Such a ruling was made on the basis of an earlier decision in a matter relating to M/s Overnite Express. The Registrar relying upon the decision of PepsiCo Inc. v. M/s Hindustan Coca Cola and Ors. 2001 (21) PTC 699 was ignorant of the same having been overruled by the Division Bench of the Delhi High Court PepsiCo Inc. v. M/s Hindustan Coca Cola and Ors. 2003 (27) PTC 305, in effect oblivious of the established dicta that slogans qualified copyright protection as literary works. Enercon asserted this dictum vide several precedents and asserted their right to copyright protection.
The Board taking note of the decision of the Registrar opined that the test of originality as laid under the University of London Press Ltd. v. University Tutorial Press Ltd. (1916) 2 Ch. 601 was sufficient. They noted that the judgment had been consistently followed in India, in the context of Copyright legislations, including the 1957 Act. Further, the Board opined that the works submitted for registration were an amalgam of text, design and illustrations and that nothing contained therein to depict any lack of originality. The Board further reiterated that copyrightability was not measured on the yardstick of excellence or merit; the moment a doubt as to the work having been copied was non-existent, copyrightability followed ipso facto. In this light, the Registrar was asked to proceed with the registration of the works as per the provisions of the 1957 Act.
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