[This post is co-authored with Tejaswini Kaushal with inputs from Swaraj and an anonymous reader. Tejaswini is a 3rd-year B.A. LL.B. (Hons.) student at Dr. Ram Manohar Lohiya National Law University, Lucknow. She is keenly interested in Intellectual Property Law, Technology Law, and Corporate Law].
The ongoing copyright dispute between Hulm Entertainment (plaintiff) and Fantasy Sports (defendant), currently awaiting adjudication before the Delhi High Court throws open interesting questions on the copyrightability of nascent concepts like GUI and seeking protection on mobile apps through concept notes. And the court’s hopscotch of granting, vacating and then reinstating the earlier modified interim injunction by the Delhi High Court only makes the case more interesting.
Hulm Entertainment alleged Fantasy Sports had substantially copied its ‘original trading and stock features’ along with the graphical user interface (GUI) of their fantasy sports mobile application “Exchange22”. This app, as they claimed, is unique in that it combines a stock market trading feature alongside fantasy gaming, something that they said was non-existent in the market prior to its app. Hulm asserted ownership of copyright on the app on the basis of a copyright registration of a literary concept note detailing the working of its app, arguing that the app is an adaptation of the literary concept note.
Surprisingly, this was sufficient for the Single Bench (SB) to grant an ex-parte interim injunction (pdf), which they did on April 13, 2022. However, this order was later modified on April 25 (pdf), where Fantasy Sports was restrained from using Hulm Entertainment’s copyrighted works through their “MyFab11” app but allowed their app to be downloaded. With the above order in place, Fantasy Sports later approached the SB with evidence of other similar apps on the market from other third parties, alleging suppression of material facts. Despite SC orders (for eg here) that courts should be extremely cautious while granting ex-parte interim injunctions, it appears that the original injunction was granted without asking for any evidence to show it is unique in the market, or without even specifying what exactly the claimed copyright in the GUI covers! About 1.5 years after the initial injunction, the SB proceeded to vacate this interim injunction on October 17 2023, and also undertook a detailed discussion on the question of copyrightability of GUIs. In this discussion (paras: 40 and 41) they note the lack of specification of what exactly in the GUI the copyright supposedly exists, as well as that the merger doctrine limits the ways in which this combination of fantasy sports leagues and stock market features can be applied, reducing the scope of infringement here.
The matter found itself back in court, before the Division Bench (DB), in less than a month though. With the DB holding that the question of whether there was any suppression of material facts, to determine the degree of commonality between the features of the competing apps require further examination. Consequently, the DB has now stayed the SB order to examine the above issues and reimposed the modified interim injunction order of April 25.
In doing so, unfortunately, the DB has seemingly missed out on considering some of the crucial aspects of the SB order, especially with regard to its findings on the originality of Hulm Entertainment’s concept note and the copyrightability of GUIs.
Argument on Adaptation of Concept Note
Though registration is not mandatory to seek protection under Copyright law, Hulm Entertainment raised an argument that its app was an adaptation of its registered literary work- i.e. the concept note and thus should be protected against the alleged infringement by Fantasy Sports. But it did not hold water before the SB on two grounds- first, relying on Fantasy Sports’ arguments that fantasy league apps with stock trading features existed prior to Hulm Entertainment’s app, the SB held the concept note cannot be regarded as novel; and second, by stating that Hulm Entertainment has not pleaded how the concept note has been substantially copied by Fantasy Sports. While the court’s finding on the second ground alone would have sufficed, the first ground is especially interesting because the originality of the concept note was eventually determined on the basis of the originality of its derivative work i.e. Hulm Entertainment’s app. Looking at the practice and procedure manual of the Copyright Office, a concept note will be protected when it has been expressed definitively and flagged with adequate details. Similarly, in Anil Gupta vs. Kunal Dasgupta, the need for explaining a concept with elaborate details has been asserted by the court. But in the present case, the court did not consider whether the concept was sufficiently elaborated upon or not in the concept note but rather held the note to be unoriginal on the basis of the similarity of Hulm Entertainment’s app i.e. its adapted work, with other apps.
Determination of Originality
This raises a question on how did the court determine the originality of Hulm Entertainment’s app in the first place. The court reiterated that originality is the linchpin for copyright protection, meaning work must originate from the author to be eligible for safeguarding (discussed here, here, and here) and asserted that eventually the expression of the ideas is protected and not the ideas themselves. Apart from this, the court held that :-
(i) copyright infringement hinges on the substantial similarity between competing works. This criterion was primarily established in the EBC v. Modak case., and its rationale lies in avoiding lawsuits for trivialities (discussed in detail here).
(ii) the similarity assessment should be based on the perspective of an average reasonable reader or spectator rather than hypercritical scrutiny (reiterated across various judgments like here and here).
(iii) the similarity between competing works does not necessarily indicate copyright infringement if it arises from a shared subject or source (a nuanced discussion on this has been undertaken here).
For the court’s assessment, ultimately, the crux of the reasoning lay in the question of originality as established by University of London Press Limited v. University Tutorial Press Limited. The court pointed out that although novelty is not the key criterion for copyright protection, sufficient proof for establishing originality was lacking in Hulm Entertainment’s trading market feature since similar apps existed before theirs.
Copyrighting GUIs and Doctrine of Merger
The SB understood a GUI to be comprised of three components on which copyright can be claimed- a computer program that enables functionality and appearance (section 2(ffc)), the artistic/ graphic elements (section 2(o)), and text i.e. the literary work visible to the users (section 2(c)). After this division, it assessed Hulm Entertainment’s submissions (claiming copyrightability in GUI based on Whelan Associates, Inc. v. Jaslow Dental Laboratory and the Bombay High Court order in Maraekat Infotech Ltd v. Naylesh Kothari) and held that no specific pleadings have been made by them with regard to copyright in any of these individual components.
The SB then assessed whether Hulm Entertainment’s GUI can be protected as a work in itself. For this it compared the competing GUIs and held that prima facie Fantasy Sports have not substantially copied Hulm Entertainment’s GUI and while there are similarities between the two GUIs they were regarded to be insignificant.
Going a step further, the SB relied on the doctrine of merger to assess whether copyright can be claimed on the app. The doctrine states that when there are a limited number of ways to express an idea then copyright cannot be claimed on such expressions as doing so will essentially lead to monopolising the idea itself (see here, here and here). The court assessed the screenshots of the other similar apps and held that for a fantasy sports app there are some commonalities that are bound to exist and thus applying the doctrine of merger, the court held that commonality between the rival applications in the present case cannot be regarded as an infringement. Interestingly, the court did not expressly rule on the question of can copyright be claimed over a GUI as a whole and rather simply referred to the US case Apple Tech v. Microsoft without making any express finding in this regard. In the Apple case the court adopted a similar approach like Computer Associates International v. Altai, Inc where a narrower ‘abstraction-filtration-comparison’ test was adopted for GUIs which required elements to be abstracted from the idea and filtered to exclude components based on external factors, efficiency, or public domain origins before comparing the residual elements for infringement. Just like the Altai ruling the court in the Apple case filtered out non-copyrightable elements and refused to protect the “patent like protection for an idea” of a GUI.
Protection of GUIs have often been discussed in the context of Designs and a Calcutta High Court judgement in Ust Global (Singapore) Pte Ltd v. The Controller Of Patents (discussed here), has held GUIs to be eligible for registration under section 2(a) and (d) of the Designs Act, 2000 for protection. However, the current case discusses the protection of GUIs under the Copyright Act. Previously such an assessment was made by the Bombay High Court in Maraekat Infotech Ltd v. Naylesh Kothari, which apparently supported extending copyright protection over GUIs, commenting that “literal similarity, similarity in program structure and design features” needed to be taken into account. This is in line with the understanding mentioned on the website of the Ministry of Electronics and Information Technology (MEITY) which states that the ‘look and feel’ of a GUI is protectable under the Copyright Act, 1957. This seems to be in contrast to the practice of the EU as held in Bezpečnostní softwarová asociace v. Ministerstvo kultury where the court clarified that copyright does not extend to the visual aspects of a GUI. The present case takes the discussion further and by imposing the additional threshold of the doctrine of merger in the context of the GUIs for fantasy sports, the court seemingly attempted to safeguard the interests of legitimate users.
Conclusion
In the SB order, the court reiterated that protection can only be sought for the expression of an idea and not the idea of having a fantasy league game with elements of the stock market and its finding on GUI would have furthered the discussion on protecting GUIs under an IP law (discussed here and here). However, the extremely short stay order seems to have put all of this on a standstill.
As discussed above, clearly, the DB did not enter into the merits of the order and relied on those submissions that the SB categorically held were missing from the plaint originally when the ex-parte injunction was granted. Furthermore, the SB’s insights into GUIs and emphasis on the need for originality were not given due attention. The matter will next be taken up on December 19, 2023, where we’ll see how the DB proceeds.