4th National Moot Court Competition -2018

Rajiv Gandhi Institute of Intellectual Property Law, IIT Kharagpur

Before
SUPREME COURT OF FDRA

CIVIL APPEAL NO. ____ / 2018

(Under Art 132 of the FDRA Constitution)
SAUMYA……………..Appellant
V.
ADITYA……………..Respondent

Clubbed with
CIVIL APPEAL NO. ____ / 2018
(Under Art 132 of the FDRA Constitution)
SAUMYA………………Appellant
V.
SEHEJ………………………Respondent

Clubbed with
W.P. (CIVIL) NO. ___ OF 2018
(Under Art 32 of the FDRA Constitution)
AAKASH …………………………………………..Petitioner
V.
GOVERNMENT OF FDRA………………………..Respondent No. 1
SEHEJ……………………………………………….Respondent No. 2

Counsels appearing on behalf of the APPELLANTS

TABLE OF CONTENTS

1. List of Abbreviations

2. Index of Authorities

3. Statement of Jurisdiction

4. Statement of Facts

5. Issues Raised

6. Summary of Arguments

7. Arguments Advanced

8. Prayer
LIST OF ABBREVIATIONS

WIPO World Intellectual Property Organization

FDRA Federal Democratic Republic of Aryavarta
AI Artificial Intelligence
Hon’ble Honorable
SC Supreme Court
Etc. et cetera
WCT WIPO Copyright Treaty
Ed. Edition

STATUTES

Constitution of India, 1950

Indian Copyright act 1957

Indian Patent act, 1970

TREATIES

WIPO Copyright Treaty

INDIAN CASES

R.G.Anand v M/s Delux Films, AIR 1978 sc 1613,

Anil Gupta v Kunal Dasgupta, AIR 202 DEL 279
Barbara Taylor Bradford v Sahara Media Limited 2003 47 SCL 445 Cal
FOREIGN CASES

Lotus Dev. Corp. v. Paperback Software Intern., 740 F. Supp. 37 (D. Mass. 1990)
Plastics v Swish[1979] RPC 551 at p. 621
Billhofer Maschinanfabrick v Dixon & co1. [1990] FSR 105 at p. 123

BOOKS

1. D.D Basu, Introduction to the constitution of India (20th ed., 2012 reprint)
2. P. Narayanan, Law of Copyright and Industrial Designs, Eastern Law House production
(4th ed.)

SCHOLARLY ARTICLES AND JOURNALS

1. Journal of Intellectual propterty rights, Vol 10, January 2005, pp 9-20, Testing for
copyright protection and Infringement in Non-Literal Elements of Computer Programs,
Arjun Krishanan
2. B.J.Copeland, Artificial intelligence, Encyclopædia Britannica, inc.
https://www.britannica.com/technology/artificial-intelligence

DYNAMIC LINKS
1. www.manupatra.com
2. www.scconline.com
3. www.jstor.org

1
Billhofer Maschinanfabrick v Dixon & co1. [1990] FSR 105 at p. 123
STATEMENT OF JURISDICTION

CIVIL APPEAL NO. _______ /2018

The Appellants have approached this Honorable Court under Art.132 of the FDRA
Constitution that reads

132. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases.-

(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of
a High Court in the territory of India, whether in a civil, criminal or other proceeding, if
the High Court certifies under Article 134A that the case involves a substantial question
of law as t the interpretation of this Constitution.
(3) Where such a certificate is given, any party in the case may appeal to the Supreme
Court on the ground that any such question as aforesaid has been wrongly decided.

Writ Petition (Civil) No. ______/2018

The Petitioners have approached this court under Art.32 of the FDRA Constitution that
reads

32. Remedies for enforcement of rights conferred by this Part.-

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part

If the Hon’ble Supreme Court thinks it appropriate to proceed in this matter, we humbly accept
your jurisdiction
STATEMENT OF FACTS

1. SEHEJ, a non-profit company works to augment the quality of life of FDRA’s tribal
people. Three years back volunteers of SEHEJ came across a unique tribal group known
as TITANIANS. TITANIANS have mastered the art of training animals without harming
them. Last year, Aakash mooted the idea of developing an artificial intelligence based
training module for training monkeys in order to enable the TITANIANS community
members to train their monkeys with ease and efficiency.
2. SEHEJ arranged a visit for Aakash and his team to the village where TITANIANS were
residing for generations. Aakash and his team after closely observing various
performances of Aditya developed an artificial intelligence based training module, by the
name GALAXY.In particular, GALAXY used a facial recognition algorithm which
identified and classified the most typical patterns used by TITANIANS to train their
monkeys. Aditya, a TITANIAN, started using GALAXY and soon discovered that the
module was so effective that it could even train unruly and disobedient monkeys.
3. During TITANIANS’ Makar Sankranti Mela, Aditya organized a grand monkey-show.
Saumya by chance happened to watch the performance of Dunston and the software-
animal-human interface where Aditya was standing throughout the performance and
giving oral and sign instructions to Dunston intermittently when Dunston was not
responding to GALAXY. Saumya video recorded the entire show.
4. When Saumya visited SEHEJ’s website, and downloaded GALAXY, which could be
downloaded only on hardware platforms having AVOCADO Operating System after
agreeing to license terms, which were: a) a non- exclusive, royalty-free, nontransferrable,
non-assignable, non-alienable, non-commercial license to use GALAXY strictly for
private or personal purposes. b) Notwithstanding anything contained in this License, it is
agreed, and undertaken not to alter GALAXY in any manner whatsoever and not to put
any such improved version in public domain.
5. Saumya privately reverse engineered GALAXY and came out with a behaviorally
equivalent module named TRINO. Saumya discovered certain unexpected bugs during a
trial run. In its second version, she incorporated an interface-adapter. Saumya put the
second version of TRINO in a system that houses ALL-PURPOSE, a unique
6. Artificial intelligence which she developed two years back, for a thorough evaluation and
desired rectification. ALL-PURPOSE came out with a revised version of TRINO which
Saumya renamed as BRAVO. BRAVO contained an in-built recognition system which
could self-educate by gathering data after observing an animal for twelve hours. She
uploaded the video of Aditya and Dunston, and made BRAVO available to members of
the general public under a copy-left open-source license.
7. Namita, was working tirelessly to understand the existence of animal consciousness. She
by chance visited Saumya’s website and discovered the existence of BRAVO. She used
BRAVO to successfully train a chimpanzee, who was performing only by looking at the
screen, signal and sound interface generated from the computer without any human
intervention. Namita uploaded the video on her website.
8. Few Months Later, Sehej’s ceo sent a cease and desist notice to Saumya calling upon
her to immediately remove BRAVO from her website. Aditya served a separate cease and
desist notice to Saumya calling upon her to immediately remove the video from her
website. Saumya refused to comply with the terms of the notices.
9. Aditya filed a suit for infringement of Performer’s Rights in the Original side of the High
court of Gunjana. The trial judge ruled in favor of Aditya and awarded a damage of 5
Lakh FDRA rupees to Aditya. When Saumya appealed to Division bench, it upheld the
decision. Saumya appealed to SC of FDRA. Which is duly admitted and posted for final
hearing
10. SEHEJ filed a suit before City Civil court, Gunjana against Saumya alleging that
BRAVO infringed copyright and patent of GALAXY. Saumya made a counter claim of
revocation of GALAXY’s patent. The trial judge at High court of Gunjana found Saumya
to be responsible for patent infringement and awarded a damage of 10 lakh FDRA
Rupees to Sehej. With respect to the copyright claim, the trial judge found no
infringementof Copyright. It held that copyright doesnot extend to ideas, procedures and
methods, Saumya was not liable. Both SEHEJ and Saumya preferred separate appeals
before the Division Bench of the High Court of GUNJANA. The Division Bench upheld
the trial decision. Thereafter, both SEHEJ and Saumya preferred separate appeals before
the Supreme Court of FDRA.
11. The Supreme Court of FDRA clubbed these three appeals for final hearing. Aakash has
filed an application under Article 32 of the FDRA’s Constitution impleading the
Government of FDRA as first respondent and SEHEJ as second respondent. He
contended tha since SEHEJ received regular grants from the Government of FDRA, they
could not have a private property right over GALAXY. He further stated that he intended
to GALAXY to be used for non-comercial purposes. He spught a writ of Mandamus
directing government of FDRA to acquire the patent and copyright for public purpose.
12. The SC of FDRA nominated Namita as an independent expert to submit her views on the
issues involved.
ISSUES RAISED

I. WHAT IS THE SCOPE AND EXTENT OF NON-LITERAL COPYRIGHT OF GALAXY?

AS SUCH DID SAUMYA INFRINGE SEHEJ’S COPYRIGHT BY COMPREHENSIVELY
TAKING THE NON-LITERAL ELEMENTS?

II. WHAT IS THE SCOPE, EXTENT AND LIMIT OF COPYRIGHT PROTECTION FOR
ELEMENTS AND PROTOCOLS REQUIRED FOR MAINTAINING INTER-OPERABILITY?

III. DID SAUMYA INFRINGE ADITYA’S PERFORMER’S RIGHT?

IV. IS THE INVENTION AT ALL PATENTABLE IN FDRA? AS SUCH DID SAUMYA

INFRINGE GALAXY’S PATENT?

V. CAN SUCH A MANDAMUS UNDER ARTICLE 32 BE ISSUED DIRECTING THE

GOVERNMENT TO ACQUIRE PATENT AND COPYRIGHT?
Summary Of Arguments

That Saumya did not infringe SEHEJ’s Copyright by comprehensively taking non-literal
elements?

&

That Copyright does not extend to ideas and themes, therefore there is no infringement by
Saumya

It is most humbly submitted before the Hon’ble Court that Indian Copyright Act, 1957 does not
extend to ideas, procedure and methods (R.G.Anand V. M/s. Delux Films). Saumya took the idea
behind the working of GALAXY but the fact that she made it for a different platform other than
AVOCADO operating system and with the help of another Artificial Intelligence, ALL-
PURPOSE, which is capable of independently developing computer programs, removing bugs,
addressing issues of compatibility and making programs user-friendly. Therefore, BRAVO is not
a copy of GALAXY and as it was developed by an AI, it can not violate SEHEJ’s copyright as a
self learning and self improving computer program is not a person.

Federal Democratic Republic of Aryavarta (hereinafter referred to as FDRA) has fully

implemented WIPO copyright treaty. Article 2 of World intellectual property organization
(hereinafter referred to as WIPO) Copyright treaty states that “Copyright protection extends to
expressions and not to ideas, procedures, methods of operation or mathematical concepts as
such”.
ARGUMENT ADVANCED

I. Saumya did not infringe SEHEJ’s Copyright

1. It is humbly submitted before the Hon’ble Court that Saumya did not infringe SEHEJ’s
Copyright by developing BRAVO and uploading it on her website under open-source
software license, for non-commercial purpose.

A) Copying is a question of fact

2. “Whether there was or not copying is a question of fact”2. Lord Wilberforce in L.B.
Plastics v Swish[1979] RPC 551 at p. 6213 asked whether the inference of copying
“could be displaced by evidence from the respondents showing how in fact they had
arrived at their design and they had not done so by copying”.

In answering the question whether there was copying, both important and unimportant
bits of works being compared counts. Very often the identity of trivial matters that traps a
copyist. As observed by Hoffmann, J in Billhofer Maschinanfabrick v Dixon & co4.
[1990] FSR 105 at p. 123.

3. Saumya copied the idea behind the working of the GALAXY and not the source code.
The first Program developed by Saumya, TRINO, was created for different platform
rather than the same operating system thus it does not amount to literal copying of
GALAXY.

B) Ideas, procedures, methods of operation or mathematical concepts are not protected

by copyright.

2
P.narayanan, Law of copyright and industrial design, 4th ed.page 178 para 2
3
L.B. Plastics v Swish[1979] RPC 551 at p. 621
4
Billhofer Maschinanfabrick v Dixon & co4. [1990] FSR 105 at p. 123
4. It is humbly submitted before the Hon’ble Court that a computer program is treated as a
“literary work” under section 2(o) of Indian copyright act. In R.G.Anand v M/s Delux
Films, AIR 1978 sc 16135, Fazal Ali, J. after considering a number of authorities, English,
Indian and American laid down guidelines for testing of copyright infringement. It said

a) There can be no copyright in an idea, subject-matter, themes, and plots or historical

or legendry fact and violation of the copyright in such cases is confined to the form,
manner and arrangement and expression of the idea by the author of the copyrighted
work.
b) Where the same idea is being developed in a different manner, it is manifest that the
source being common, similarities are bound to occur. In such a case the courts
should determine whether or not the similarities are on fundamental or substantial
aspects of the mode of expression adopted in the copyrighted work. If the defendants
work is nothing but literal imitation of the copyrighted work with some variation here
and there it would amount to violation of the copyright. In other words, in order to be
actionable the copy must be a substantial and material one which at once leads to the
conclusion that the defendant is guilty of an act of piracy6

5. In Anil Gupta v Kunal Dasgupta, 7there was alleged copying of scripts for a reality-
marriage show in which perspective brides and groom were matched on Television. In
this case it was admitted that it is well established principle of copyright law that there is
no copyright in Ideas but there is copyright in expressions.
6. Article 2 of WIPO copyright8 act also supports the idea-expression dichotomy i.e.
copyright extends to expression and not to ideas . The Idea-expression dichotomy must
be looked into to find infringement of non-literal copyright violation.. The idea originated
from the traditional knowledge of the TITANIANS, and TRINO was developed taking
ideas from the working of GALAXY, but the final product that was BRAVO was
developed by an AI. It was not only platform independent but also self-customizable and

5
R.G.Anand v M/s Delux Films, AIR 1978 sc 1613
6
Supra note 5 para 24
7
AIR 202 DEL 279
8
WIPO Copyright Treaty (WCT) (1996) Article 2
self learning depending upon the animal to be trained. Its function is very unique as
compared to GALAXY.
7. The definition of AI9 is of importance here. The Britannica encyclopedia defines it as
“Artificial intelligence (AI), the ability of a digital computer or computer-controlled robot
to perform tasks commonly associated with intelligent beings. The term is frequently
applied to the project of developing systems endowed with the intellectual processes
characteristic of humans, such as the ability to reason, discover meaning, generalize, or
learn from past experience.”
8. In Lotus Dev. Corp. v. Paperback Software 10 a three part test for copyrightability of non-
literal element was laid down. First step involves separating idea form expression. This is
achieved by moving from most general to particular element. This has been already
established that the BRAVO was more advanced than GALAXY(para 3) given its
platform independency and being developed by another AI, ALL-PURPOSE.Further the
fact that it was capable of self education is of importance. An AI capable of self
improvement is not covered under copyright law. The improvements in the functioning of
BRAVO by itself cannot be contributed to Saumya and thus she cannot be held
responsible for copyright infringement.
9. Namita, in her opinion, stated that the “artificial intelligence could only be regarded as
mere parrot that learned the facial expressions of animals and analyzed them by pre-
determined human made algorithm”. The SC of FDRA has appointed Namita as an
independent expert to submit her views on the issues involved and therefore her opinion
should be taken into consideration.
10. The second step involve doctrine of merger and and “scenes a faire”. The doctrine of
merger postulates that where a given idea can be expressed in one or few given ways, the
idea of expression and the idea itself merge thereby excluding copyright protection.

Scenes a faire means “elements of an original work that are so trite or common that they
are not captured by copyright”.

9
B.J. Copeland, Artificial intelligence, Encyclopædia Britannica, inc. https://www.britannica.com/technology/artificial-
intelligence
10
Lotus Dev. Corp. v. Paperback Software Intern., 740 F. Supp. 37 (D. Mass. 1990)
11. Albeit BRAVO originated by the same idea but it is neither a duplication nor an upgrade
to GALAXY. Saumya developed TRINO, a behaviorally equivalent AI, before BRAVO
which she used for personal use on a different platform. Section 52(1)(ab) of Indian
copyright reads “the doing of any act necessary to obtain information essential for
operating inter-operability of an independently created computer programme with other
programmes by a lawful possessor of a computer programme provided that such
information is not otherwise readily available”. It is thus not considered a copyright
infringement. The similarity in TRINO was due to lack of ways in which the idea can be
expressed. As the use of audio-visual and the end result was so similar to TITANIANS
traditional knowledge that there was bound to be behavior similarities. Therefore,
according to doctrine of merger and “scenes a faire” it does not amount to copyright
violation. Also, BRAVO isn’t behaviorally similar to GALAXY and as TRINO wasn’t
the software that was put on Saumya’s website the question of copyright infringement by
TRINO doesn’t arise at all.

12. In R.G.Anand v M/s Delux Films, AIR 1978 sc 1613, the court laid down

“One of the surest and the safest test to determine whether or not there has been a violation
of copyright is to see if the reader, spectator or the viewer after having read or seen both the
works is clearly of the opinion and gets an unmistakable impression that the subsequent work
appears to be a copy of the original.”11

The court seems to go for a “look and feel”12 approach while determining infringement of
copyright. Namita’s statement(para 5) proves that there is difference in the two software.

Both R.G.Anand v M/s Delux Films and Lotus Dev. Corp. v. Paperback Software have
similarities in the guidelines laid down to find infringement of non-literal copyright.

11
SUPRA note 5
12
Journal of Intellectual propterty rights, Vol 10, January 2005, pp 9-20, Testing for copyright protection and
Infringement in Non-Literal Elements of Computer Programs, Arjun Krishanan
In Barbara Taylor Bradford v Sahara Media Limited13, the plaintiff alleged the infringement
in the copyright of her novel by the defendant television soap opera. The court applied the
Idea-Expression dichotomy to the facts. It applied a mixture of abstraction and “look and
feel” test. It held that albeit the two works shared same theme, there was sufficient
dissimilarities to disprove infringement.

Similarly in Saumya’s work there are sufficient dissimilarities as stated by Namita earlier as
well as the fact that it is capable of inter-operability and self-learning.

Thus , Saumya did not infringe SEHEJ’s copyright.

13
Barbara Taylor Bradford v Sahara Media Limited 2003 47 SCL 445 Cal
PRAYER
Wherefore, in the light of the issues raised, arguments advanced, reasons given and authorities
cited, it is humbly prayed that this Hon’ble Court may be pleased to adjudge:

1. That Saumya did not infringe SEHEJ’s Copyright

2. That’s SEHEJ is not eligible for Patent or copyright of GALAXY
3. That Saumya did not violate Aditya’s performer’s right

And/or pass any other order that this Hon’ble Court may deem fit in the interests of justice,
equity and good conscience.

All of which is humbly prayed

Counsel for the Appelant