The Copyrightability of Illegal Works

 Eldar Haber addresses this issue at length in article `Copyrighted Crimes: The Copyrightability ofIllegal Works' (2014). Abstract of this article is as under:

Copyright law does not explicitly impose content-based restrictions on the copyrightability of works. As long as a work is original and fixed in a tangible medium of expression, it is entitled to copyright protection and eligible for registration, regardless of its content. Thus, child pornography, snuff films or any other original works of authorship that involve criminal activities are copyrightable. Such work can be highly profitable for its makers even though society does not necessarily benefit from, and might even be harmed by, the work. Along with revenue from sales, the author of an illegal work may also be able to collect damages for infringement. 

The author also explains current position in USA on content-based restrictions in Intellectual property.  Trademark law is not content-neutral, non-registrable marks usually contain a reference to drugs, sex, religion, race, or scatological imagery.  The idea that an invention, within the meaning of the patent statute, must meet standards of morality was referred to as the “moral utility” doctrine and was invoked in many cases for over 150 years. In recent years, however, courts have abandoned this doctrine,  and the current interpretation of patent law suggests that it requires only that an invention be put to a single lawful use, lacking moral examination. Hence, immorality is no longer considered a restriction in United States patent law.

An Indian perspective was posted in SpicyIP blog: https://spicyip.com/2018/09/obscenity-and-morality-under-ip-law.html.  The act prohibits the registration of a trademark which consists of “scandalous or obscene matter”. scandalous marks are ones which offend “accepted principles of morality”. IPO denied patent grant to a creative and unique sex toy.  It held that the sex toy was not patentable according to Section 3(b) of the Indian Patents Act since its use would affect “public order” and “morality”. Claiming that sex toys were neither “useful” nor “productive”, it went on to brand sex toys as “obscene” objects and state that the sale and import of them would be illegal under Section 292 of the IPC. Indian Copyright Act makes no mention that the content which is sought to be protected must be “lawful”. No legislative or judicial clarification has, however, been given on the same and hence, the question of whether the legality of content impacts copyright protection in India remains an unsettled one.

Hypothetical case on copyright.

S Yuvarajaa, an IIT Kharagpur graduate was recently arrested by RPF for allegedly making two railway ticketing applications that were faster than IRCTC website. He created ‘Super Tatkal’ and ‘Super Tatkal Pro’, which enabled users to book Tatkal rail tickets faster than the official app of IRCTC. He has been accused of bypassing the IRCTC’s ticket booking system. Yuvarajaa was arrested under Section 143(2) of the Railways Act which penalises for “unauthorised carrying on of the business of procuring and supplying railway tickets.”  

Earler media reported  TravelKhana and Rail Yatri, were sued by IRCTC for being unlicensed food delivery on trains, with both companies then compelled to apply for licenses to continue operating. 

If courts agree on illegality of Yuvarajaa mobile applications, then what happens to is copyright?