' MUNIB AKHTAR, J.---Does the plaintiff have a "work" such as is protected by and under the Copyright Ordinance, 1962 ("1962 Ordinance") or only an idea, which is not? That is the question requiring consideration, though as will be seen later there is an interesting twist to it. The plaintiff asserts the former, and seeks interim injunctive relief by means of C.M.A.11545 of 2013. The defendants deny this and assert the later to be the true position in the facts and circumstances of the case. By C.M.A.11821 of 2013 the plaintiff seeks certain ancillary relief, which however is not relevant to the central drama.
2. The plaintiff avers that he does business in the name and style of Dredm Station Productions. The plaintiffs business is the production of original audio-visual content, and it is stated in para 1 of the plaint that the plaintiff has already produced a number of popular songs and music videos. The defendant No, 1 is the Pakistani arm of the well-known US beverage company ("Coca-Cola Company") and the defendant No, 2 is a director of the local entity. The plaintiff contends that all the defendants are, in one way or another, involved in the production and airing of a program called "Coke Studio". This, according to its Wikipedia entry, "is a Pakistani music television series which features live studio-recorded music performances by various artists". The entry states that the show "is produced by the Coca-Cola Company and Frequency Media", the latter being the delendant No,
3. The program has gone through five seasons, and the dispute relates to the sixth, referred to as "Coke Studieo Season 6" (herein after, "Season 6"). The plaintiff contends that the defendants, by making and airing Season 6, have infringed his copyright in a work entitled "Dream Music". The defendants of course deny and contest this claim.
3. Learned counsel for the plaintiff submitted that sometime in 2012, the plaintiff conceived of a unique idea for a reality music show. The central concept was to bring local and international music artists on the same platform (being a studio) for collaboration in the production of songs.
Learned counsel submitted that the plaintiff prepared the format of the show (to be called "Dream Music") and issued a printed booklet ("Booklet") describing the same. The Booklet, comprising of around nine pages containing photographs of various artists and written information in bullet- point format, is annexed to the plaint. Learned counsel submitted that in furtherance of the fopegoing, the plaintiff started contacting various Pakistani and Indian managers and producers for developing a "pilot" of the show. He also travelled to India and in or around June 2012 prepared the pilot in collaborat )11 with one or more Indian artists. A copy of the pilot (which is of course in audio-visual form was also placed on the record. It was contended that after the pilot had been produced, the plaintiff got in touch with a Dr. Rafat Siddiqui to take the matter further. The latter brought a Mr. Rihan Merchant to the plaintiffs recording studio where a presentation was made and the pilot also shown. Mr. Merchant, according to the plaintiff, is the chief executive of the defendant No, 4, a company that is contended to be "a media buying house engaged in business of procuring, producing and airing audio visual content for various clients including defendant No,1"
(para 5 of the plaint). It is the plaintiff case that Mr. Merchant showed interest, and on or around 6- 11-2012 a 6opy of the pilot was delivered to him via Dr. Siddiqui by means of a USB.
4. Continuing his submissions, learned counsel submitted that thereafter for some months the plaintiff heard nothing from the defendant No,4. However, sometime in April, 2013, he was approached and introduced to a Mr. Shehan Rayer who, the plaintiff was given to understand, was the head of music projects of the defendant No,
4. The aforesaid Mr. Rayer was enabled to view a presentation of "Dream Music" on a password protected website, www.Vimeo.Com, the relevant passwo rd being forwarded to him by the plaintiff. There was a meeting in the office of the defendant No, 3 and it is averred in the plaint that Mr. Rayer "loved the show and said he would try to sell it to 'some clients" (para 10)-. I find the plaint at this stage to be a bit ambiguous since para 10 appears to aver that the defendant No, 3 also "loved" the show. In any case, the plaintiffs claim is clear: the defendants Nos. 3 and 4 responded enthusiastically to "Dream Music". The plaintiff claims that matters got to the extent of there being talk of a "profit sharing deal". However, in the end the defendant No,3 never got back to the plaintiff.
5. Learned counsel submitted that it was in the foregoing terms that the plaintiff saw the promotional clips/videos (known as "promos") launched by the Coca-Cola Company (in collaboration with the defendant No, 3) in relation to Season 6 on the Internet on or around 6-10- 2013. He was shocked to discover that the copyright vesting in him in respect of "Dream Music" had been infringed. Learned counsel strongly contended that the substantial similarity between Season 6 and "Dream Music" could not at all be coincidental on account of the facts stated above. In particular, learned counsel relied on an audio-visual presentation aired by the defendants Nos. 1 to 3 under the title "Making of Coke Studio Season 6" to submit that it was "a complete copy of the plaintiffs original idea which is clearly visible/apparent after watching both the video clips", i.e,, the plaintiffs pilot on the one hand and the defendants' video just referred to on the other (plaint, para 12). Learned counsel submitted that the content and format of Season 6 was completely dissimilar to the first five seasons, which also demonstrated that the defendants had embarked on essentially a new sort of program by infringing the plaintiffs copyright. The plaintiff s material had been in circulation for over 10 months prior to the airing of the defendant's video/clips with regard to Season 6 and there could be no doubt that there had been a gross violation of the plaintiffs rights. Learned counsel submitted that all the ingredients for interim relief were in place and prayed accordingly.
6. Learned counsel for the Coca-Cola Company, which is the main contesting defendant, opposed the case put forward for the plaintiff. Learned counsel submitted that it was fundamental to the law of copyright that what was protected was not an idea but its expression in a work within the meaning of the 1962 Ordinance. It was denied that any copyright vested in the plaintiff in respect of any work. At most (although even this was apparently not accepted) the plaintiff had an idea, but that had no protection under copyright law. This was the key submission made by learned counsel.
On the facts, it was denied that the Coca-Cola Company or any of its officers had ever seen the plaintiff s claimed work prior to the filing of the Suit. Insofar as the defendant No,4 was concerned, it was denied that the said defendant acted on behalf of the contesting defendants in any manner as averred in the plaint. It was the defendant No, l's case that the defendant No, 4 used to act only as an advertising agent for the Coca-Cola Company and even that relationship had ended in December, 2011. Thus, the defendant No, 4 had no connection with the contesting defendants. It was contended that the defendants Nos. 1 to 3 came up with their own idea and concept for Season 6 of the ongoing series, i.e,, "Coke Studio" and this had nothing to do with the plaintiff. It was contended that the plaintiff had failed to make out any case whatsoever and learned counsel prayed that the applications be dismissed. Learned counsel for defendant No,3 adopted the submissions by learned counsel for defendant No, 1.
7. Learned counsel for defendant No, 4 also opposed the case sought to .Be made by the plaintiff. It was reiterated that the relationship between this defendant and the defendant No, 1 had ceased in December, 2011 and thereafter there was no connection between the parties. It was also contended that Mr. Merchant had ceased to be the chief executive of the defendant No,4 since January, 2013.
Any connection of the aforementioned Mr. Shehan Rayer with the defendant No, 4 was denied altogether. It was also denied that the defendant No, 4 at any stage saw any presentation by the plaintiff, and in particular any viewing of the pilot for "Dream Music" was denied.
8. With the assistance of learned counsel for the parties, I saw (in Chamber) portions of the plaintiffs pilot for "Dream Music" as well as the defendants Nos.1 to 3's promotional video, "Making of Coke Studio Season 6". Portions of certain other yideos, relating to earlier seasons of "Coke Studio" were also viewed, though more briefly. Copies of the first two videos were made available and I have seen them again, in full, after the conclusion of the hearing. I may note that the plaintiffs video runs to 11:54 minutes, while the defendants' video is 19:29 minutes long. At the conclusion of the hearing, I also allowed counsel to file written synopses along with case law. They have done so and learned counsel for the defendant No, 1 has relied on certain cases.
9. I have heard learned counsel as above, examined the record (and seen the videos), and considered the case-law. The central issue that needs to be addressed has been stated above.
This is usually referred to as the "ideas/expression 'dichotomy". It is a fundamental principle of copyright law that what is protected are not ideas but the expression of an idea in a manner that constitutes a work within the meaning of the 1962 Ordinance. Learned counsel for the defendant No, 1 relied on certain case-law in this regard. Reference was made to an English (Donoghue v.
Allied Newspapers Ltd. [1937] 3 Ch D 503), an Indian (R.G. Anand v. Delux Films and others AIR 1978 SC 1613) and a US (Computer Associates International Inc. v, Altai lac. (1992) 982 F.2d 693, Court of Appeals for the 2nd Circuit) decision. These decisions were considered with approval by a learned Single Judge of this Court in Independent Media v. Ali Saleem and another 2006 CLD 97, a judgment also relied upon by learned counsel. It will however be more convenient to refer to the relevant passages from a well known and authoritative treatise on the subject, Copinger & Skone James on Copyright (16th ed., 2010; herein after "Copingeri. In para 2-06, it is stated as follows (internal citations omitted from all the passages):-- "Copyright is a property right, but copyright law is concerned, in essence, with the negative right of preventing the copying of material. It is not concerned with the reproduction of ideas, but with the reproduction of the form in which ideas are expressed. "Ideas, it has always been admitted,... Are free as air." Copyright is not a monopoly, unlike patents and registered designs, which are. Thus, if it can be shown that two precisely similar works were in fact produced wholly independently of one another, there can be no infringement of copyright by one of the other. The position is that, if the idea embodied in the plaintiffs work is sufficiently general, the mere taking of that idea will not infringe. If, however, the idea is worked out in some detail in the plaintiffs work and the defendant reproduces the expression of that idea, then there may be an infringement. In such a case, it is not idea dea which has been copied but its detailed expression."
' In para 3-18, the following statements are to be found:-- "It is often stated that there is no copyright in ideas (the "ideas/expression dichotomy") but without further explanation it is a dangerous proposition: no work will be denied copyright protection simply because it can be categorized as one which "only" expresses ideas. In a general sense of course, all copyright works have as their basis an idea, in that all works are expression of the author's ideas represented by his decision to use certain modes of expression than others. As discussed above, however, it is not the concern of copyright to protect ideas unless and until the ideas have found expression in the form of a work of a category recognised as deserving of protection.... It follows that once the ideas have been expressed in the form of a literary work, it is the form of expression which is the subject of protection, not the ideas, which themselves may be freely extracted froth the work and absorbed and used by others to produce their own works so long as the form of expression of the copyright work is not also taken."
' In Chapter 7, dealing with infringement, law is stated to be as follows (para 7-13; emphasis supplied):-- "Idea versus expression. In dealing with the question of copying, there should be borne in mind the well established principle that there is no copyright in mere ideas, concepts, schemes, systems or methods. Rather; the object of copyright is to prevent the copying of the particular form of expression in which these things are conveyed. If the expression is not copied, copyright is not infringed. Thus, to be liable' the defendant must have made a substantial use of the form of expression; he is not liable if he has taken from the work the essential idea, however original, and expressed the idea in his own firm, or used the idea for his own purposes. Protection of this kind can only be obtained, if at all, under patent law or the law relating to confidential information. This principle finds expression in many of the cases, to the effect, for example, that it is no infringement of the copyright in a literary or dramatic work to take its basic idea or plot or of an artistic work to take the general idea. It is, however, impossible to define the boundary between the mere taking of general concepts and ideas on the one hand and copying in the copyright sense on the other, and wherever the line is drawn it will often be seem arbitrary."
' It is interesting to note, with reference to the apparent arbitrariness of the dividing line referred to at the end of the passage, that in the decision cited in support thereof, IPC Media Ltd. v. Highbury- Leisure Publishing Ltd. [2004] EWHC 2985 (Ch), [2005] FSR 20, reliance was placed on a decision of the US Court of Appeals for the 2nd Circuit, Nichols v. Universal Pictures Co. (1930) 45 F.2d 119. There the idea-expression dichotomy was explained with reference to the work before the Court (being a play) and it was observed: "Nobody has ever been able to fix that boundary, and nobody ever can"
(pg 121).
' Reverting to Copinger, reference should also be made to the passage in para 7-13 immediately following the one cited above, where it is stated as follows (emphasis supplied):-- "As with all such general statements of principle, however, it must be treated with caution and not taken too far. It is not a correct statement of English law that because a copyright work contains the expression of an idea it may be copied; nor that if there is only one way of expressing an idea, then that way cannot be the subject of copyright; nor that where the expression of an idea is inseparable from its function, it forms part of the idea and is not entitled to copyright protection.
The correct position is that although copyright cannot prevent the copying of a general idea, where the idea has been worked out in detail in the form of writing, drawings, etc. It will be an infringement if the labour which went into the expression of the idea is appropriated. In such a case, it is not the idea which has been copied but its detailed expression.... Thus the law of copyright is concerned not with originality of ideas but with the original expression of thought (in the case of a literary work, for example, the expression in writing). The originality which is required, and thus the protection conferred, relates to the expression of thought. In each case, it will be a matter of degree whether the line which divides the copying of an idea from copying of its expression has been overstepped."
' In my view, the foregoing are, in the main, the principles on the basis and in terms of which the applications before me stand to be decided.
10. Turning to the question in issue, the two possible works in which the plaintiff can claim copyright are the Booklet and the video presentation. Are these works within the meaning of the 1962 Ordinance? In my view, the answer must be in the affirmative. The Booklet is a literary work within the meaning of section 2(p). The video presentation is an audio-visual work within the meaning of section 2(c-a). Audio-visual works must be regarded as either artistic works or (in my view, more appropriately at least in the present case) as cinematographic works. This is so because although section 2(c-a) was inserted in the 1962 Ordinance by an Act of 1992, no corresponding change was made in section 10(1), which lists the classes of works in which copyright can subsist in Pakistan. An audio-visual work must therefore be regarded as a sub-category of one of the existing classes and the most obvious ones are an artistic work and a cinematographic work.
11. While the Booklet and the video presentation are works within the meaning of the 1962 Ordinance, the crucial question is as to the nature of these works (and this is the interesting twist to the issue). The idea/expression dichotomy, fundamental to the law of copyright, has been stated in detail above. Now, a work is almost invariably the expression of an idea. But sometimes the work instead of being an expression of an idea is simply a description of the idea. As noted in Copinger, a work will not be denied copyright protection because it "only" states the idea and is not an expression of it (see para 3-18 reproduced above). However, if the work is only a description of an idea and not its expression in the copyright sense, then what is the extent of the protection afforded to the work? More precisely, is protection afforded only to the description as constitutes the work or does the protection extend also to any (and potentially every) expression of the idea?
This, in my view, is the key question raised by the facts and circumstances of the present case.
12. A work that comprises only of a description of an idea is sometimes referred to as a "concept note", and is so referred herein. Two points may be made. Firstly, it is in the nature of a concept note that it is intended to lead to or result in another work within the meaning of the 1962 Ordinance, either in the same or another class. Put differently, the idea described in the concept note is intended to be subsequently expressed (in the copyright sense). The concept note is not therefore an end in itself, as would be the situation where the work is the expression of an idea. Secondly, although a concept note is usually in writing (i.e,, is a literary work) it need not be limited to this form. Thus, the author may make a short video of the description of the idea (which would be an audio-visual, and hence either an artistic or cinematographic, work) or even a sound recording of it, which would be a "record" and hence also a work within the meaning of the 1962 Ordinance. I use the term "concept note" in this broad sense. This is also necessary because in my view, the video presentation made by the plaintiff (the second of the two works being relied upon) was not a 'pilot", which in the present context would mean "an experimental undertaking carried out prior to some full scale project or activity esp. a test episode of a television series used to assess audience reaction etc." (see the Shorter Oxford English Dictionary, 6th ed., 2007, pg. 2208). Having seen the video presentation and keeping in mind its content, form and time length, I am of the view that it also is a "concept note" in the sense just explained, though of course by way of a work other than, and falling in a class different from, the Booklet.
13. Having considered the point, in my view and subject to what is stated in the next succeeding paragraph, although a concept note is protected in and of itself as a work under copyright law, that protection cannot normally be regarded as extending to an expression of the idea described in the note. It will be seen from the passages from Copinger cited above that in the case of a work that is an expression of an idea, the idea itself is not protected no matter how original it may be. It is the particular form of the expression that is protected and another person may take the idea and express it in his own form as long as it does not infringe the expression already existing. To reiterate from para 7-13: "the law of copyright is concerned not with originality of ideas but with the original expression of thought", and the "originality which is required, and thus the protection conferred, relates to the expression of thought". This is the public policy of the law, and the law has taken this form because it may be that the same idea can be expressed in more than one way, each original or non-infringing in the copyright sense. Neither the idea nor its expression in any one form creates a monopoly over all expressions. It will be noticed that the statements of the law to be found in Copinger work, as it were, backwards, i.e,, go from the expression of the idea to the idea itself. If the expressions in the relevant works are different in the copyright sense, it matters not that they spring from the same idea. Put differently, the same idea can result in different (and in principle many) expressions, each of which is original in the copyright sense. The point was made as follows in Dymow u. Bolton (1926) 11 F.2d 690 (US Court of Appeals for the 2nd Circuit):-- "One of the entities or things which every author tries to insert in his copyrighted work is a set of ideas; yet ideas as such are not protected. ....[C]opyright law protects the means of expressing an idea; and it is as near the whole truth as generalization can usually reach that, if the same idea can be expressed in a plurality of totally different manners a plurality of copyrights may result, and no infringement will exist." (pg. 691; emphasis supplied)
' This brings me to the nub of the present issue. In the case of a concept note, the matter is approached from the other direction, i.e,, by starting with the description of the idea. If the protection afforded to the description of an idea as a work in and of itself were to extend to any (and in principle all) expressions of the idea in any (and in principle an) subsequent works where such idea is expressed, that would in my view be destructive of the idea/expression dichotomy. A person who conceives of an idea would be able to create a monopoly over all expressions of that idea by the simple expedient of first describing that idea in a form that constitutes a work within the meaning of copyright law. That would strike at the very root of the fundamental principle. When the idea is described in the form of a work (i.e,, a concept note comes into existence in the copyright sense), it will usually be the case that the author has also conceived of come specific expression(s) of that idea, which he intends to embody in one or more subsequent works. But the range of possible expressions, each original or non-infringing in the copyright sense, may be greater than that conceived by the originator of the idea. The range may even be indeterminate.
That entire range would, as it were, be "captured" by the originator were it to be the law that the description of the idea as a work extends his rights over all the expressions thereof. He would, as just noted, in effect have been handed a monopoly. However, that is the very thing that is denied to him .By the idea/expression dichotomy. In my view therefore, the protection afforded to the description of an idea as a work in and of itself cannot be stated in such broad terms nor is it so extensive. That is not and cannot be the law. A concept note as a work within the meaning of copyright law is indisputably entitled to protection as a work in itself. However, the nature and scope of the protection, especially in contradistinction to that afforded a work that is an expression of the idea, must always be kept in mind. As long as the work comprises only of the description of the idea, the protection afforded by copyright law does not extend to the expressions of it.
14. Of course, much depends on the detail in which the idea is described in the concept note. If the description is detailed enough, it may be that on an objective appraisal, it has crossed the dividing line and, in law, ought to be regarded as an expression of the idea in the copyright sense. But this is a matter of degree. Cases that lie on the borderline will inevitably be hard to decide and their decision may, on occasion, seem arbitrary as noted in Copinger. That cannot however detract from the basic principle that there is a line, and even if it may be difficult to discern it in a particular case the majority of cases will fall clearly on one or the other side. A simple example may help explain the point. An author conceives of an idea for a novel, which he expects to run to about 300 pages.
He prepares a two page concept note. This is a work in itself but would almost certainly be regarded as lying well on the "description" side of the line.
' But suppose, he prepares a 150 page detailed synopsis. This may well be regarded as lying on the other (i.e,, "expression") side. What of a 10 or 20 page note? It may be that this falls on the borderline and the Court must in the end resolve the issue. Each case has to be decided on its own facts.
However, the example just given may mislead on one point, which must be emphasized. It is of critical importance and must never be forgotten. It is that quality matters, and not quantity. A concept note may run to dozens of pages and yet remain precisely that, only a description of the idea and not an expression of it. Another document may only be a few pages long and yet be of such nature that it is the expression of an idea. The word "detail" as used in the beginning of this paragraph must be understood in this sense. One final point may also be made. As noted in the preceding paragraph, an originator who sets out his idea in a concept note usually has some conception of how he intends to express that idea subsequently in one or more works. 'It may therefore be that the concept note, in addition to the description of the idea, also contains some indication of how the idea would be expressed in a subsequent work. Such indication will not however change the nature of the concept note, i.e,, change the work into an expression of the idea in the copyright sense. Again however, it could in the end be a matter of degree.
15. With the foregoing in mind, I turn to consider the Booklet and the plaintiffs video. Insofar as the Booklet is concerned, the description of the idea therein contained, while entitled to protection as a work in and of itself, cannot support a claim that an expression of the idea is also thereby protected. As noted above, the information contained in it is in bullet form, some of which is in the shape of very brief points as would usually be the case in a document prepared for purposes of a presentation. The Booklet simply gives an overview of the idea conceived by the plaintiff. While there is some indication of how the idea may be subsequently expressed (in the copyright sense), the work itself is not an expression of it. The Booklet is firmly on the "description" side of the dividing line. There has therefore, in my view, been no infringement of the plaintiffs copyright in the Booklet.
Insofar as the plaintiffs video is concerned, I have already stated my view that it too is a concept note, i.e,, it contains the description of an idea and not any expression of it in the copyright sense. It is not a "pilot" as claimed by the plaintiff. It shows the plaintiff explaining the idea that he has had, and the reaction to it of others. It is in other words, but a description of the idea. Although it does contain, in certain segments, a song sung by an Indian artiste, that is while working with the plaintiff and his associates and not, for example, with other, music artistes. In my view, this too is by way of describing what the idea is. It is not an expression of it. In this sense and to this extent therefore, the video presentation also has not been infringed, falling like the Booklet on the "description" side of the dividing line.
16. However, there is another aspect to the plaintiff s video that must be considered. As noted above, the contesting defendants have also prepared a presentation video, being the "Making of Coke Studio 6". This is of course a work within the meaning of the 1962 Ordinance. Having seen this video, in my view it is also in the nature of a concept note, i.e,, it is the description of an idea and is not the expression of it. It is certainly not a "pilot". The question that now needs to be considered is whether the defendants' video presentation (i.e,, concept note) infringes the plaintiffs video presentation (i.e,, concept note). This question arises because both are works, in and of themselves, under the 1962 Ordinance. In that sense and to that extent there can be an infringement issue. Assuming (though without deciding) that the other factors necessary to establish infringement, such as causality etc., would lie in favour of the plaintiff, in my view, the defendants' video presentation cannot be regarded as infringing the plaintiffs video. Although learned counsel for the plaintiff has sought to place reliance on certain specific instances of similarity or commonality, in my view the videos have to be viewed as a whole. When so considered, the specific instances, with respect, lose any relevance that they might appear to A have if considered in isolation. The two videos are distinct and each proceeds on its own basis. If anything, I would conclude that the ideas described in the two works are also distinct. There has therefore been no infringement of the plaintiffs work even in the sense now being considered. In Nichols v. Universal Pictures Co. (1930) 45 F.2d 119, cited above, it was observed as follows (at pg. 121; emphasis supplied).
"Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected...."
' At a certain level of generality it could perhaps be said that there is some similarity or commonality between the two videos, i.e,, between the description given by the plaintiff of his idea and the description given by the defendants of theirs. However, I am in no doubt that even if it could be concluded that there is such similarity or commonality that would be at such a level of abstraction and generality that a claim of infringement could not be sustained.
17. In view of the foregoing I conclude that the plaintiff has been unable to make out a case for interim injunctive relief on the ground of infringement of a work under the 1962 Ordinance. Needless to say, the observations made herein above are tentative in nature and should the Suit proceed to B trial, the same shall be decided on its own merits uninfluenced by anything said herein.
Accordingly, C.M.A. 11545 of 2013 fails and is hereby dismissed. In the circumstances, C.M.A. 11821 of 2013 has become infructuous and is disposed off as such.