Closed list approach versus open-ended approach in subject-matter copyright

I. Introduction

Copyright and the protection regime thereof is a sub-class of intellectual property rights that seek to safeguard certain rights of authors and owners from infringement or unfair dealing in their works. The copyright regime can be classified into two main divisions, subject-matter copyright, and copyright infringement. While the latter aspect deals with protecting identified copyrights and enforcing the rights of owners and authors, subject-matter of copyright aims to delineate what kinds of works can be afforded copyright protection in the first place. This article shall focus only on the subject-matter of copyright, and therefore, will not address the open versus close-ended approaches in other aspects of the copyright debate.[1]

There are broadly two approaches observed in determining what subject-matter is protectable by different copyright jurisdictions, an open-ended approach, and a closed list approach.[2] Closed list jurisdictions attempt to elaborately outline the contours of different categories of subject-matter that is protectable under its copyright regime e.g. literary works, artistic works, musical works, etc. Examples of these jurisdictions include Australia[3], the United Kingdom[4] and India.[5] In all of these jurisdictions, there are legislations that exhaustively lists categories of works which cumulatively designates what can be afforded copyright protection. The result of such an approach is that non-conventional works such as perfumes, graffiti, computer-generated patterns, etc. will by definition fall outside the scope of copyright protection.[6] Per contra, the open-ended approach does not aim to identify the contours of copyrightable subjects but rather seeks to identify critical common requirements for a work to be afforded copyright protection, such as originality of the work, fixation in a medium, requirement of intellectual creation, etc.[7] Countries that follow this approach usually align their domestic copyright system along the lines of Article 2(1) of the Berne Convention, which recognises copyrightable subject-matter in all forms of artistic and literary works whatever their mode of expression.[8] Examples of these countries include Trinidad and Tobago, France[9], and Canada.

While the open-ended approach to copyright subject-matter is increasingly gaining scholarly attention and is being seen as the adequate improvement upon the closed list approach, the present system adopted by open-ended jurisdictions might have their own problems. This article seeks to critically analyse the discourse on these two approaches to subject-matter copyright and to conclude by recommending a hybrid approach as a possible framework that can form the basis of a reformed system of copyright protection that maximises the best of both these approaches in the Indian context.

II. International perspectives ― Foreign copyright regimes

To appreciate the varying systems of copyright protection throughout different jurisdictions, this section shall briefly touch upon the approach to determining copyrightable subject-matter by different countries.

United Kingdom – The closed list approach

In the United Kingdom, the Copyright, Designs and Patents Act, 1988 (CDPA) is the legislation that codifies the copyright regime. The CDPA follows a strictly closed system whereby 4 kinds of authorial works and 5 kinds of entrepreneurial works are afforded protection.[10] Notwithstanding the existence of these categories, several definitions of works have been vague and have invited courts to more precisely define the extent of a subject-matter.[11]

In Green v. Broadcasting Corpn. of New Zealand, the plaintiff attempted to claim copyright protection for a talent show called “opportunity knocks” as a “dramatic work”.[12] “Dramatic works” is not exhaustively defined under the CDPA, but simply deemed to include a recorded work of mime or dance.[13] The Court dismissed the case claiming that the format of the TV show lacked creativity as well as sufficient unity.

This decision has been criticised for failing to recognise the creativity that is required in the creation of TV shows, and also for being blind to the future direction of the entertainment sector which is increasingly captured in TV show formats similar to the one in Green v. Broadcasting.[14]
Similar criticisms have been made by scholars in decisions of what constitutes an artistic work[15] whereby courts have refused to classify face tattoos as paintings on a very narrow construction, holding that a face could never be the surface of a painting.[16]

Canada–Trinidad and Tobago ― A transition from closed list to open-ended

Canada previously had a similar closed list system of subject-matter copyright, which only afforded protection to four categories of works.[17] After acceding to the Berne Convention, however, Canada amended Article 2 of its Copyright Act to introduce a non-exhaustive subject-matter list.[18]

Trinidad and Tobago has also followed this trajectory and has gone one step further than Canada since it explicitly states that works are subject-matters of protection solely on the basis of their creation rather than any regardless of their form of expression, content, quality and purpose.[19]

Some copyright scholars have argued that these forms of inclusive definitions rather than an exhaustive list of subject-matters strengthen copyright protection by extending it to any authorial work which meets the relevant legal standards of originality.[20]

III. Indian copyright regime

With the advent of independence, the Copyright Act, 1914, was replaced with the Copyright Act, 1957 (“the Act”). With the Act, the Indian legislature sought to achieve two broad goals, firstly, to protect the result of man’s labour, skill and work and secondly, to protect works from annexation by others.[21]

Subject-matter copyright under the Copyright Act, 1957

Under the Act, works eligible for copyright are listed in Section 13. Within this provision, copyright can be claimed for original literary, dramatic, musical and artistic works; cinematography films and sound recordings.[22] Each class of work is further defined under the respective clauses of Section 2.[23] These clauses reveal that, while musical, artistic works and records are defined exhaustively, other works are more broad definition.[24] In addition to this, Indian courts have also identified the rights of a performer over his performance as part of copyright-protected work under Section 38 of the Act.[25] Therefore, subject-matter copyright extends to all works that fall within the ambit of a simultaneous interpretation of Sections 13 and 38 of the Act.

Though the initiation of a statute was premised on the need to widen copyright protection, the Act potentially restricts its reach by limiting copyright protection only to the classes of work enumerated in the legislation. Despite being a signatory to the Berne Convention, India has adopted a closed copyright regime with an arguably narrow scope.[26] This approach is evident in the statute which clarified that copyright protection is derived solely from the statute.[27]

Jurisprudence

In addition to the Act, Indian courts have also restricted the scope of copyrightable works to statutorily enumerated categories. To illustrate, in Time Warner Entertainment Co. v. RPG Netcom Globe, when resolving the question of whether an individual has the right to claim copyright infringement over future work of a cinematographic film, the High Court clarified that protection of the work concerned is not stipulated in the legislation and is, therefore, ineligible for copyright.[28] The Court reasoned that from a plain reading of Sections 13, 14, 16 and the object of the Act, it can be rightly inferred that copyright is restricted to the properties in the statute and does not prevail de hors or beyond the Act.[29] This position has been emphasised by the courts by consistently maintaining that copyright is a creation of the legislature.[30] Consequently, no copyright can be claimed based on customary rights.[31]

This approach has restricted the scope of copyright protection solely to the enumerated works in the Act. For example, the Bombay High Court has denied a claim brought by an actor who pleaded protection for his performance in a cinema film[32], and the Delhi High Court has denied copyright to an artist who printed multicoloured work on a carton.[33] In both instances, the Court has strictly adhered to the categories outlined in the Act to conclude that copyright for the subject-matters concerned is not prescribed in the legislation.[34] However, Indian courts in certain other circumstances, have expanded the definitions of the properties listed in the statute to bring a broader spectrum of works under copyright protection.[35]

Therefore, the copyright laws in the country are a close representation of the British system, however, an expansive interpretation which has sometimes been the approach of the courts can consciously convert the rigid statutory structure of copyright laws to a more open-ended regime. Such a shift would bring the present system in par with the objectives that influenced the enactment of the legislation and induce more authors to create original works by protecting such works from invasion by others.

IV. Open versus close-ended approaches to subject-matter copyright

Having gone through the various approaches which different copyright regimes take in determining what subject-matter should be afforded copyright protection, this section will analyse the merits and demerits of these approaches.

Subject-matter copyright systems can be seen in light of the dialectic of flexibility and rigidity.[36] Since copyright protection can only be effective if it can identify a particular work with accuracy to establish whether it can be protected, and what would count as infringement, the rigidity of categories becomes important.[37] On the other hand, copyright must also be flexible in determining what works may be protected since this flexibility allows for unanticipated future works of creativity to be claim protection.[38] A lack of such flexibility could lead to gaping holes in protectable subjects jeopardising the development of unconventional creative works and industries.[39]

Closed list systems

A closed list system having clearly defined categories of copyright subject-matter has the advantage of legal certainty. This in itself is very beneficial to mainstream subject-matters that have long been recognised in the copyright system. Common law countries with a closed list over time develop an extremely efficient system of determining subject-matter challenges to copyright due to a vast body of subject-matter copyright jurisprudence.

However, this legal certainty comes at the cost of flexibility. The use of a strictly closed list system results in the exclusion of various non-conventional works such as contemporary sculptures despite the works being artistic and the products of intellectual labour.[40] Further, in common law countries with a heavy reliance on the system of precedents, the development of case law on the scope of a particular category will be inversely proportional to the scope of future works that can be afforded protection within that category, leading to further minimisation of the subject-matter of copyright.[41]

Open-ended systems

An open system on the other hand allows for any work to be afforded copyright protection as long as it meets certain qualifying criteria. These systems lack the rigidity of the closed list systems and therefore are more susceptible to affording copyright protection to non-conventional but qualifying works. Example of such a system is Trinidad and Tobago.[42]

However, where the open-ended system makes up for rigidity, by loosening the definition of work, it reduces legal certainty. Legal certainty is lost on both fronts, apropos of what works may be protected intelligibly and what an infringement would entail. For example, in the case of the Dutch system of copyright, jurisprudence has developed to allow for perfume scents to be copyrighted.[43] In such cases of works as perfumes, the lack of a scientifically sound method of distinguishing between one perfume and another, coupled with deciding what would count as a copyright infringement, would result in deeply subjective analysis, often rendering copyright protection unfeasible.[44] When courts extend copyright protection to subject-matters which cannot be objectively ascertained, it does not effectively protect the work, and at the same time, it also deters innovation in the field due to lack of certainty as to future protection and possible unintended infringement.[45]

Another critical demerit of such open systems is the tendency of such broad protection to become a misappropriation law and to overlap with other forms of intellectual property.[46] Computer programs for example are usually given limited protection under copyright law despite often meeting other qualifications of a protectable work. It is only by excluding computer programs as a subject that intellectual property as a system can meaningfully distribute various kinds of protections.

Finally, copyright protection inevitably leads to certain advantages for the owner of the copyright, and this advantage must inevitably be at the cost of the freedom of the public at large.[47] Given the possible ramifications of extending copyright protection to a specific subject-matter on the public at large, the specific categories which should be afforded copyright protection should be decided only through some form of representation i.e. it must be a legislative decision on the basis of public interest, rather than a judicial or administrative decision.[48]

Hybrid systems

In contrast to the black and white approaches of closed list systems, hybrid systems attempt to tackle the issue of subject-matter in a more nuanced manner. Frequently, these jurisdictions allow for the definitions of works to be open-ended and accompany such definitions with inclusive lists and a list of exceptions. Such a system may be observed in the new copyright regime of Canada[49], France[50] and some scholars have argued that such a system was initially envisaged by the United States.[51]
This system retains the benefits of both open and closed list systems inasmuch as it allows for all works to be generally protected, and then specifically enunciates and excludes certain categories depending on various factors.

A caveat ― Dual stages of protection

It is important to note here that there are always two levels at which copyright systems operate and consequently two stages at which the approach of the specific jurisdiction will become important.
The first stage is at the level of legislation i.e. the legislation that defines the specific subject-matter categories. Here, a hard outer limit of what subjects are protectable is set, and this is usually more rigid. The second stage of subject-matter determination happens at the level of administrative copyright protection agencies and courts. At this stage, an outer limit has already been set, however, courts and copyright agencies may nevertheless boost or restrict copyright protection by the use of interpretive techniques.

While the hybrid approach can ensure adequate protection at the legislation level, even this system may breakdown at the second stage due to a narrow interpretation of categories and introduction of artificial requirements by administrative authorities and judicial bodies. A good example of this breakdown is the case of the United States Copyright Act of 1976. Here, despite the Congress employing arguably inclusive and broad language in defining “authorial works” in the Copyright Act of 1976[52], the copyright office and various judicial decisions have consistently refused to afford protection to unenumerated works of authorship.[53]

V. Conclusion

After considering the merits and demerits of the various approaches to subject-matter copyright, hybrid systems of copyright subject-matter determination seem to be a more nuanced take on the issue and could be designed to strike an adequate balance between the interests of copyright owners and the public interest in fostering innovation.

However, there are two important aspects that India must take into account while reforming copyright law on subject-matter. As has been seen from the case of the United States, simply drafting legislation which allows for an open-ended interpretation is not enough. The Insolvency and Bankruptcy Board of India (IBBI) and courts which stand at the second stage of copyright identification and enforcement must also be encouraged through policy documents and explicit legislative intent to follow this open-ended approach.
Secondly, as has been noted, a heavy reliance on either a closed list or an open-ended approach to subject-matter determination has significant cons. Thus, while amending the copyright law, the drafters must ensure that copyright protection is not extended to subjects which cannot be feasibly identified and protected, such as copyrights based on olfactory, tactile, or taste.

Such a system should take the form of a general non-exhaustive definition of works accompanied by an inclusive list of subjects which are broadly worded, and a list of narrowly worded subject-matters which cannot be granted copyright protection. However, since such a system can only work as long as it constantly keeps up with the innovations in the free market, the parliamentary standing committee on human resource development[54] should make suggestions to include and exclude subject-matters in constant intervals.


*4th year BBA LLB (Hons.) students, Jindal Global Law School, O.P. Jindal Global University, Sonipat.

[1]For an analysis of EU Law on open-ended versus rigid interpretations of transformative works, see Julien  Cabay and Maxime Lambrecht, Remix Prohibited: How Rigid EU Copyright Laws Inhibit Creativity (2015) 10 JIPLP 5.

[2] Pamela Samuelson, Evolving Conceptions of Copyright Subject -Matter (2016) 78 U Pitt L Rev 17.

[3] The Copyright Act of Australia, 1968, § 32.

[4] The Copyright, Designs and Patents Act, 1988, § 1 and §§ 3-8.

[5]  The Copyright Act, 1957.

[6] Phillips v. Pembroke Real Estate Inc., 459 F 3d 128, 131(1st Cir 2006).

[7] Pamela (Note 2).

[8] Berne Convention for the Protection of Literary and Artistic Works, S Treaty Doc No. 99-27, 828 UNTS 221, Art. 2(1) (Berne Convention).

[9] French Intellectual Property Code, Art. L. 112-1; T. Aplin, “Subject-Matter” in E. Derclaye (Ed.), Research Handbook on the Future of EU Copyright Law (Edward Elgar, Cheltenham 2009) 70.

[10] The Copyright, Designs and Patents Act, 1988, § 1, §§ 3-8.

[11] Some authors have even tried to assert that the United Kingdom does not have a closed system of subject matter protection, See e.g. Dr Poorna Mysoor, Does UK Really Have a “Closed” List of Works Protected by Copyright?, (2019) 41 Eur. Int. Prop. R 474. (Arguing that the breadth of certain category definitions is broad enough to classify the UK as an open-ended jurisdiction.)

[12] (1989) 2 All ER 1056.

[13] The Copyright, Designs and Patents Act, 1988, § 3(2).

[14] Jason Haynes, Subject-Matter of Copyright Protection in the UK: A Road Map to Effectuating Statutory Reform, (2013) 39 (2) Commonw Law Bull 319.

[15] The Copyright, Designs and Patents Act, 1988, § 4(1).

[16] Merchandising Corpn. of America v. Harpbond Ltd., 1983 FSR 32; Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs (3rd Edn.,  London 2004) 226.

[17] The Copyright Act (RSC, 1985, c. C-42), Art. 5(1).

[18] The Copyright Act (RSC, 1985, c. C-42), Art. 2  reads– every original literary, dramatic, musical and artistic work includes every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression, such as compilations, books, pamphlets and other writings, lectures, dramatic or dramatico-musical works, musical works, translations, illustrations, sketches and plastic works relative to geography, topography, architecture or science.

[19] Trinidad and Tobago, Copyright Act, Ch. 82:80, Section 5(2).

[20] Haynes (n 14).

[21] Sulamangalam R. Jayalakshmi v. Meta Musicals, 2000 SCC OnLine Mad 381.

[22] The Copyright Act, 1957, S. 13. While S. 13(a) protects original works, the two sub-sections extend copyright to derivative works.

[23] The Copyright Act, 1957, S. 2.

[24] V.K. Ahuja, Law Relating to Intellectual Property Rights, (3rd Edn., 2017).

[25] Star India (P) Ltd. v. Piyush Agarwal, 2012 SCC OnLine Del 5691.

[26] Avishek Chakraborty, Non-Conventional Copyright: Do New and Atypical Works Deserve Protection?   (2019) 8(2) CULJ 85-99.

[27] The Copyright Act, 1957, S. 16.

[28] 2007 SCC OnLine Del 759.

[29] Ibid.

[30] University of Oxford v. Rameshwari Photocopy Services, 2016 SCC OnLine Del 5128; Sungro Seeds Ltd. v. S.K. Tripathi, 2020 SCC OnLine Del 591.

[31] Upendra Baxi, Copyright Law and Justice in India, (1986) 28(4) JILI 497, 499.

[32] Fortune Films International v. Dev Anand, 1978 SCC OnLine Bom 156.

[33] Camlin (P) Ltd v. National Pencil Industries, 1985 SCC OnLine Del 378.

[34] Ibid.

[35]Agarwala Publishing House v. Board of High School and Intermediate Education, U.P., 1966 SCC OnLine All 124. (The definition of what constitutes a literary work is an inclusive one, and this category of work includes “all works that is expressed in the form of writing, despite it having literary merit or not”.); Daily Calender Supplying Bureau v. United Concern, 1964 SCC OnLine Mad 29. (The definition of what is included within an artistic work includes all works of artistic craftsmanship and therefore, copyright protection was extended to images of deities printed in calendars as part of artistic work).

[36] Andrew F. Christie, A Proposal for Simplifying United Kingdom Copyright Law, 2001 EIPR 26, 28.

[37] Ibid.

[38] Ibid.

[39] Enrico Bonadio & Nicola Lucchi, Non-Conventional Copyright – Do New and Atypical Works Deserve Protection? (Edward Elgar 2018).

[40] Creation Records Ltd. v. News Group Newspapers Ltd., 1997 EMLR 444 (In this case the Court refused to extend the category of a sculpture to a photograph of an assortment of objects and people. While the thrust of the Court’s opinion hinged on the lack of an intelligible pattern of assortment, several scholars have also argued that the Court’s hesitation also stemmed from the plaintiff’s argument that the humans present in the photograph were themselves part of the “sculpture”, Pamela Samuelson, Evolving Conceptions of Copyright Subject-Matter, (2016) 78 U. Pitt. L. Rev. 17).

[41] Dr Mysoor (n 11).

[42] Trinidad and Tobago, Copyright Act, Ch. 82:80, Section 5(2).

[43] Kecofa BV v. Lancôme Parfums et Beauté et Cie SNC, Supreme Court of the Netherlands (First Chamber), 16-6-2006.

[44] Willem Leppink and Michel Veltman, Netherlands Court Grants Copyright Protection to Perfume Scent, 1 J Intell Prop L & Prac 756 (2006).

[45] Ibid.

[46] National Commission on New Technological Uses of Copyrighted Works, Final Report 26-27 (1978), at 26.

[47] R. Anthony Reese, What Should Copyright Protect? in Rebecca Giblin and Kimberlee Weatherall (Eds; Canberra), What if we could Reimagine Copyright? (Australian National University Press, 2017).

[48] Ibid.

[49] Dr Mysoor (n 11).

[50] Ibid.

[51] R. Anthony Reese, Copyrightable Subject-Matter in the “Next Great Copyright Act,” 29 Berkeley Tech. L.J. 1489 (2014).

[52] 17 U.S.C. § 102(a) (2012), [“Copyright protection subsists … in original works of authorship … Works of authorship include the following categories.” (emphasis supplied)].

[53] Reese (Note 51).

[54] This Committee has previously submitted its suggestions on reform of the Copyright Act in its “Two Hundred Twenty-Seventh Report on the Copyright (Amendment) Bill”, Parliamentary Standing Committee on Human Resource Development, 2010 Rajya Sabha 227, November 1932.

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