No Copyright Except as Provided by the Act

"Whether published or unpublished". This is the sharpest edge of the section. In English law before 1911 an unpublished work had a perpetual common law copyright. Section 16 removes it. An unpublished manuscript in India has statutory copyright, with a statutory term, and nothing more.

"Or of any other law for the time being in force". This is the saving that keeps the Act from colliding with the rest of intellectual property law, and it is why section 15 has to deal with the design overlap expressly instead of leaving it to section 16.

"Breach of trust or confidence". The exception that does the most practical work. It is not a copyright: it is the equitable action that protects information given in confidence for a limited purpose. It is what lets a claimant sue over a television format, a concept note or a business plan when copyright cannot reach the idea.

A worked example

Ritu Malhotra pitches a television format to a broadcaster. She sends a written concept note describing a talent show with an unusual voting mechanic, marked confidential, and the broadcaster's development team meets her twice. Six months later the broadcaster launches a show using the mechanic but nothing of her words.

Can she claim copyright in the format? No, if what was taken is the mechanic and not her expression of it. A format as such is not one of the works section 13 names, and section 16 stops her arguing for a format right that the Act does not give.

Can she claim copyright in the concept note? Yes, as a literary work, if her words or her arrangement were taken. That is a real claim and it succeeded on similar facts in Zee Telefilms Ltd. v. Sundial Communications Pvt. Ltd., 2003 (27) PTC 457 (Bom).

Can she sue in confidence? Yes, and this is the claim section 16 expressly preserves. The information was given in circumstances importing an obligation of confidence, for a limited purpose, and it was used for another. That is the claim that succeeded in Anil Gupta v. Kunal Dasgupta, AIR 2002 Del 379, where the Delhi High Court restrained a broadcaster from transmitting a match-making programme after the plaintiff had disclosed his concept for one in confidence.

Notice what section 16 has done. It has closed the door on the claim that sounds easiest, the format right, and left open the one that actually fits the facts.

The two cases worked

Facts. Zee Telefilms Ltd. v. Sundial Communications Pvt. Ltd., 2003 (27) PTC 457 (Bom), arose when Sundial developed concept notes, character sketches and a script for a television series about a child with divine powers, and disclosed them to Zee in confidence. Zee did not take the project and then began producing a series with a strikingly similar concept.

Held. The Bombay High Court dismissed Zee's appeals and confirmed the injunction on both grounds. The concept notes were an original literary work and what had been taken was the form, manner and arrangement in which the idea was expressed, not the idea alone; and separately, material disclosed in confidence for a limited purpose cannot be used for another purpose.

Why it matters here. It shows the two claims running side by side, which is how a well pleaded Indian format case is put: copyright in the written expression, and confidence in the disclosure.

Facts. Anil Gupta v. Kunal Dasgupta, AIR 2002 Del 379, concerned a reality television concept in which a woman would choose a husband on air. The plaintiff developed it under the name Swayamvar and disclosed it to the defendants in confidence; they announced a programme called Shubh Vivah on the same theme.

Held. The Delhi High Court restrained the defendants from transmitting Shubh Vivah, or any programme on the theme of match making, for four months, and for two months more if the plaintiff launched his own show in that time, so that he kept the head start his idea was worth. The court proceeded on breach of confidence: an idea developed into a concept fit for use can be the subject matter of confidence even though the idea itself carries no copyright.

Why it matters here. It is the clearest Indian illustration of the jurisdiction section 16 saves, and of the fact that the remedy in confidence can be shaped to the commercial harm rather than being all or nothing.

What it does NOT mean

It does not mean an unpublished work is unprotected. It has full statutory copyright. What it does not have is a perpetual right at common law.

It does not mean the confidence action is a copyright. The obligation arises from the circumstances of the disclosure, not from the making of a work, and it dies when the information becomes public. A claimant who publishes his own concept note has destroyed the confidence and kept the copyright.

And it does not mean that section 16 bars every non-statutory claim. Passing off, defamation, breach of contract and the constitutional right to privacy all survive it, because none of them is a right in a work.

Limits and criticism

The section makes Indian law inflexible by design. Where an American court can stretch fair use and an English court can find a new equitable right, an Indian court cannot invent a copyright. The answer given is that certainty is worth more here than flexibility, and that Parliament has amended the Act nine times when it wanted change.

The saving for confidence carries a heavy load it was not designed for. Format protection, concept protection and much of the argument about data are all being run through a doctrine developed for trade secrets and marital confidences. That is workable but it means the boundaries of an important commercial right are being drawn case by case in interlocutory applications.

Quick revision

Section 16. No copyright or similar right in any work, published or unpublished, except under the Act or any other law in force, saving any right or jurisdiction to restrain a breach of trust or confidence.

Its ancestor is the rejection of a perpetual common law copyright by the House of Lords in 1774.

Its practical effect is that a claim to a format right, a right in an idea, or a residual common law copyright must fail.

Its saving is the reason Indian format and concept cases are pleaded in confidence, as Anil Gupta and Zee Telefilms both show.

Test yourself

1. State section 16 and its exception. No person is entitled to copyright or any similar right in any work, published or unpublished, otherwise than under and in accordance with the Act or any other law for the time being in force; but nothing in the section abrogates any right or jurisdiction to restrain a breach of trust or confidence.

2. Does an unpublished manuscript have a perpetual common law copyright in India? No. Section 16 excludes it. It has statutory copyright with a statutory term.

3. A producer takes your format but none of your words. What claim survives section 16? Breach of confidence, if the format was disclosed in circumstances importing an obligation of confidence and used for a purpose other than the one for which it was given.

4. Why does the Act need section 15 if it already has section 16? Because section 16 saves other laws, so it does not by itself resolve the overlap with the Designs Act. Section 15 decides which of the two rights prevails and when.

5. Name two claims that section 16 does not bar. Passing off, and an action for breach of confidence. Neither is a right in a work.