This post was first published on June 25th, 2014.
We reviewed the existing scenario in the entertainment industry with respect to the protection of ideas, in my previous post – how to protect ideas. Before we move on to discuss the tool that can be used to protect original ideas/concepts that are not expressed in a tangible form, let us take a look at the practices followed in the entertainment industry by both the generator and the receiver of ideas. Writers submitting concepts and scripts to producers, or setting up meetings with them, with hope of monetary benefits and production of their ideas/concepts, is a general practice in the entertainment industry. The burden is on the supplier of an idea (writer/author) to take necessary measures in order to claim legal rights over his original idea. A man who reveals his idea without having first made a bargain has no one to blame but himself for the loss of his bargaining power.
The law expects an express agreement to be formed before there could be any liability. Hence, the first thing the idea giver should do is to enter into a contract, binding himself and the receiving party. Having a contract protects both the writer and the party to which the idea/concept is disclosed. The contract which we are referring to here is the Non-Disclosure Agreement (NDA).
NDAs, also known as Confidentiality Agreements, are instruments that can protect a disclosing party’s ideas. Signing an NDA proves that the receiving party had access to the idea and has agreed to maintain the confidentiality of said idea. Apart from this, it can serve as evidence of the ownership of the writer over the original idea. Secondly, apart from signing NDAs to protect ideas, a writer can also protect ideas by registering them with an association like a writer’s society, which society, after receiving an idea, registers it, stamps it and hands over the work back to the writer, without any worry of the work becoming public. By registering the work, a writer will be able to prove the date of creation of the idea, and the ownership under certain circumstances.
The practice of protecting original ideas through NDAs is easier said than done, because most production houses do not sign NDAs. Thousands of writers submit ideas to production houses and signing NDAs with each one of them is often not feasible. If a production house were to agree to keep all the thousands of ideas confidential, then it would be exposing itself to high risk. The general practice which a production house or a studio follows is to get the writer or supplier of the idea to execute a Release Deed. This deed is an agreement which releases all rights held by the disclosing party with regard to the idea disclosed in favor of the receiving party, in this case, the production house. Through this agreement, a writer voluntarily waives off certain rights with respect to his idea, upon disclosing it to the production house. In light of the aforesaid, it is clear that in order to have a claim or to prove a lack of a claim for infringement with respect to an original idea, there should be a valid legal contract binding both parties.
But then, what if there is no legal contract binding the parties? How can a writer protect his original ideas not expressed in a tangible form? How can one protect ideas disclosed orally?
This is where the law of equity comes into play. Equitable principle of breach of confidence is an important accessory to Intellectual Property Rights. It can give extra protection in areas where Copyright cannot. Copyright law provides limited protection, but does not protect ideas and only protects the expression of ideas. Breach of confidence can step in and protect ideas, where copyright has failed.
Breach of confidence is defined as a violation of the trust placed in another in a fiduciary relationship. There is no limit on the form of the information protected under breach of confidence; it protects oral ideas as well as designs and drawings. However, breach of confidence does not protect ideas that are freely available in the public domain; nevertheless, information built on public domain information, which involves some skill may be protected.
To succeed in a Copyright case, the plaintiff has to prove two important things, similarity and access to his copyright protected work. Even a single substantial similarity can amount to infringement of a copyrighted work when compared to a higher number of similarities. Hence, the courts look at the quality of infringement as against the quantity of infringement.
On the other hand, to claim protection under Breach of confidence, it is necessary to fulfill the following requirements:
1. Requirement of Secrecy: The information necessitating protection under Breach of confidence should qualify as information of “Confidential” nature.
2. Communication in Confidence: It is necessary that the information that is the subject of a claim under a Breach of Confidence action, was communicated in confidence and the person communicating it established a circumstance of confidence while disclosing it.
3. Misuse by Third Party: A claim under Breach of confidence does not succeed unless there has been a misuse or unfair advantage taken with respect to the information disclosed in confidence.
All the three requirements have to be satisfied in a claim for a Breach of confidence, universally.