The domain of Intellectual Property (IP) in India is still nascent and the IP protection regime is not as developed and evolved as that of the United States. Number of questions remain unanswered. Coming to the commercialization of a book, it is safe to say that nowadays there are a lot of ways to earn revenue, inter-alia, selling merchandise or expanding the panoply. In order to do all of this, the author should have a right to use the title of his/her book as the title contributes a lot in making a book successful. Apart from the incentive of bearing financial fruits, a book title is necessary to protect because it is used by readers to identify a particular book and therefore be able to differentiate it from other books. Protection of title under IP laws is of value to publishing houses as well.
The US Courts and US Copyright Office have a very clear policy of not copyrighting book titles as their copyright is to protect ‘original works of authorship’ only. However, they allow authors to Trademark the titles.
Trademark is predominantly granted to titles of a collection or series of books rather than a stand-alone. The US Courts treat the title of a single book as being “inherently descriptive” at best and “inherently generic” at worst.
The fact that the work of the author might have acquired a secondary meaning and have had great sales is not enough to sway the decision of the courts in affirmative, to grant Trademarks to titles of books.
Section 13 of the Copyright Act, 1957 defines the categories of works in which a copyright may subsist. A reading of the provision reveals that it talks about protection of the work as a whole and not just for the title or a part of the work. There is no jurisprudence when it comes to copyright of book titles in India. However, plethora of cases available on protection of movie titles provides guidance on the same.
Kanungo Media (P) Ltd. v. RGV Film Factory and Ors.
In the above mentioned case, Delhi High Court deliberated on protection given to literary titles. Plaintiff and Defendant were in a tiff over the title of their films, ‘Nisshabd’ and ‘Nishabd’ respectively. The Plaintiff had produced his movie and won accolades for the same. He claimed copyright over the film title, arguing that the title had acquired distinctiveness over the period of time and would likely cause confusion in the minds of the audience as they might associate the title of the film of the Defendant with his work. The learned judge drew reference from American jurisprudence and precedents and held that the title of the book alone, without the plot, characterisation, song, etc., cannot be the subject of copyright law.
It was further held that protection of film titles can be sought under Trademark law and Unfair Competition laws. Two types of titles were identified by the court:
- One being the titles of series of literary works, which can be registered as Trademarks as they indicate that each subsequent edition is coming from the same initial source.
- The other type is the titles of single literary works. For single literary works to obtain rights under Trademark law, it is important for them to prove that they have acquired secondary meaning and can cause likelihood of confusion in the minds of their audience.
The two tests of secondary meaning and likelihood of confusion are to be applied in each case to come to a conclusion.
The Kanungo judgment was upheld by the Apex Court in Krishika Lulla and Ors. v. Shyam Vithalrao Devkatta and Ors. The Indian Courts are gradually moving towards a more sophisticated and evolved regime of IP rights and there is still a lot to discern and decide when it comes to the grey areas of IP law.
The article has been authored by Jaya Mitra