India: Merger Doctrine Applied In The Case Of Combining Various Gene Components

Last Updated: 8 November 2012
Article by Abhai Pandey

Copyright law protects the expression and not an idea. The idea-expression dichotomy under copyright law has another aspect when the dichotomy melts and idea is the expression and vice-versa. In other words, the idea and the expression of the idea become inseparable, as there is only one way to express or depict an idea. This is known as Merger doctrine under which no one may claim a copyright in that single manner of expression or depiction because that would evict everyone else from the right to express or depict that idea. The expression, if copyrightable, would necessarily give the author a monopoly on the expression of the underlying idea. In the instant case [Emergent Genetics India Pvt. Ltd vs. Shailendra Shivam & Ors I.A. Nos. 388/2004, 1267/2004&1268/2004 in CS (OS) 50/2004], the court elaborated on the Merger Doctrine.

Emergent Genetics alleged copyright infringement over reproduction of its seed's unique DNA sequencing in the hybrid seeds of Shailendra Shivam. It contended that Shailendra Shivam by repeating the DNA sequence has made the products of both the plaintiff and defendant genotypically identical, resulting in copyright infringement of the plaintiff's literary work in the unique DNA sequencing of the hybrid seeds. The issue thus framed by the Court was - Whether Copyright protection is granted under Indian law, in respect of the work, for which the Plaintiff claims relief?

Copyright law does not grant the author of a literary work, protection on ideas and facts (R.G. Anand vs. M/s Delux Films, (1978) 4 SCC 118). It is the creative expression of an idea or fact, which gets copyright monopoly for a specified period. Section 2(y) of the Copyright Act, 1957 defines 'work' as any of the following works namely: (i) a literary, dramatic, musical or artistic work, (ii) a cinematographic film, (iii) sound recording. Section 2(o) of the Act defines 'literary work' to include computer programmes, tables and compilations including computer databases and a copyright can be claimed on a 'literary work' under Section 14 of the Act. The compilation of databases is entitled to copyright protection, however the law mandates that the work claiming protection ought to be original. Section 13 of the Copyright Act provides that a Copyright shall subsist in "(i) Original literary, dramatic, musical and artistic works; (ii) cinematograph films and (iii) sound recordings. The law thus grants such recognition and protection to expressions that are "original". A literary work, in order to qualify as work in which copyright can subsist, must therefore be original.

The standard for judging "originality" has undergone a radical change. The Supreme Court of India in Eastern Book Company vs. D B Modak 2008 (1) SCC 1, following the approach adopted in CCH Canadian Ltd vs. Law Society of Upper Canada (2004) SCC 13 rejected the sweat of the brow doctrine, (which conferred copyright on works merely because time, energy, skill and labour was expended) and held that the work must be original "in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work is somewhat different in character is produced by the author". Pertinently the Indian apex court noticed that the two positions i.e. the "sweat of the brow" on the one hand and "modicum of creativity" on the other, were extreme positions and thus preferred a higher threshold than the doctrine of "sweat of the brow" but not as high as "modicum of creativity". Thus the Indian law mandates that not every effort or industry or expending of skill, results in copyrightable work but only those which create works that are somewhat different in character, involve some intellectual effort and involve a minimum degree of creativity.

The Court thus opined that 'the sequence for a gene' obtained from nature cannot per se be original. A scientist while constructing a DNA sequence "discovers" facts from nature and thus there is no independent creation of a "work" essential for matching the originality requirement. The Court also reasoned that the processes by which these gene sequences are created to develop a unique variety are expressly denied patent protection under section 3(j) of the Patent Act 1970, therefore it is inconceivable that the observation and compilation of the consequences of that process, which is a natural consequence, can receive an extremely wide protection as a "literary work". The "Merger doctrine" was applied to hold that the idea of combining various gene components or constituents can only be expressed in limited ways, therefore granting copyright protection would mean that the others are precluded from expressing such ideas. The Court found unfavourable the analogy of computer programmes for copyright protection of DNA sequences because the manner of stating the process or method of protein production is confined to only one expression or programme. A specific sequence expressed in a manner, is the only way to express the underlining idea of the gene; therefore there is a merger of the idea with the expression, which precludes the copyrighting of DNA sequences that are codes for proteins.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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