No copyright subsists in the title of a literary work: Apex Court

New Delhi, October 18: The Supreme Court, on Wednesday, held that there would not be any copyright protection for titles of literary works. Such protection can only be claimed in exceptional circumstances, where the title itself was of an inventive nature.
The Court was considering a criminal appeal preferred by Krishika Lulla and others ( Krishika Lulla v. Shyam Vithalrao Devkatta) against the order of Bombay High Court refusing to quash a complaint and process issued under Section 63 of the Copyright Act, read with Sections 406 and 420 of the Indian Penal Code, 1860.
The facts of the case were that, Shyam Vithalrao Devkatta (respondent), had written a story with the title “Desi Boys” and had got the synopsis of the story registered with the Film Writers Association on November 25, 2008. Subsequently, one Ramesh Bhatnagar, told him that a comedy film story is required by the son of film Director, David Dhawan, and he mailed the concept of the story in the form of a synopsis as an attachment to an email addressed to Ramesh Bhatnagar on October 14, 2009 with the words “Dear friend, just see the attachment.” Ramesh Bhatnagar forwarded the story, calling it “just an idea” via email to one Ahsan Sagar on October 15, 2009. What was forwarded was apparently the same short synopsis of the concept with the title “Desi Boys.” Having done so, his friend Ramesh Bhatnagar did not receive any reply but, suddenly the respondent saw the promos of a film bearing the title “Desi Boys,” actually spelt as “Desi Boyz.” According to the respondent, the adoption of the title “Desi Boyz” in the film by the appellants, is a clear infringement of his copyright in the story title “Desi Boys.”
The Court observed that a title by itself is in the nature of a name of a work and is not complete by itself, without the work. “A title does not qualify for being described as ‘work.’ The combination of the two words ‘Desi’ and ‘Boys’ cannot be said to have anything original in it. They are extremely common place words in India,” the Division Bench of Justices Lokur and Bobde was quoted as saying.
According to the Intellectual Property Law in India, copyright is a statutory right recognized and protected by The Copyright Act, 1957. By virtue of Section 13 of the Act, copyright subsists in original literary, dramatic, musical and artistic works; cinematographic films; and sound recording.
The Supreme Court while deciding the issue on Wednesday, referred to precedent from the Madras and Delhi High Courts as well as foreign courts which provided for the well- settled position that there can be no copyright in the title of a work.
The Court also added that, though infringement of copyright in such a title is indefensible, the protection by registration as a trade mark may be available, provided, the title is sufficiently distinctive. “The appropriate remedy in such cases will be an action for passing off,” declared the Court.