May 20, 2014

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Stretching It Too Far? Court Curtails IPR Rights In Yoga Postures

- Mukul Baveja, Counsel [ Phoenix Legal ]
- Davis Kanjamala, Associate [ Phoenix Legal ]

Mukul Baveja & Davis Kanjamala

The art of Yoga - which has both physical and spiritual dimensions - has been widely practiced in India since time immemorial, with an early treatise on the subject (Patanjali's Yoga Sutras) reckoned to be written around 200 BCE. However, despite its ancient origins, even yoga and its derivative disciplines appears not to be immune from the subject matter of intellectual property litigation

Recently, the Delhi High Court in the Institute for Inner Studies and Ors v. Charlotte Anderson analysed several issues in connection with intellectual property on yoga postures.

Conflicts of Energy

IIS, the plaintiff, was established by Master Choa Kok Sui, a spiritual guru depicted as a global authority and founder of 'Modern Pranic Healing'. The concept of 'Modern Pranic Healing' was purportedly derived by the Master from 'Pranic Healing', an ancient system of treatment claimed to heal ailments by manipulation of the energy field of the patient. IIS and its affiliates organized various training programmes and seminars as well as disseminated literature and materials relating to the teachings of their founder. They claimed that the defendants, one of which included the co-author of several works of the Master and his companion at the time of his demise, were infringing their legal rights by inter alia distributing materials and conducting seminars and courses without valid licenses or permission of IIS. The chief argument of the defendants was that Pranic Healing being an ancient concept and existing in the public domain pre-dating the teachings of the Master, the plaintiff could not validly claim any exclusive rights to it under either trademark or copyright law.

In Praise of Originality

To make a determination of the validity of the plaintiff's claims vis-à-vis copyright, the court noted that for literary and dramatic works to be eligible for protection under the (Indian) Copyright Act, 1957, the basic criteria required to be satisfied was originality of such work. In the absence of categorical statutory clarification on what constituted 'originality' in this context, the court recalled judicial precedents on this point.

Indian courts had initially adopted the so-called 'sweat of the brow' doctrine, expressed by courts in the United Kingdom in decisions such as University of London Press Limited v. University Tutorial Press Limited, to determine originality. As per this, the focus of originality was in the expression of the thought and not in the idea per se. Provided that a work involved sufficient skill, labour and judgment of the author (the precise degree being left as a grey area, to be determined as per the circumstances of each case) to distinguish it from the work of another, the work would be deemed 'original' for the limited purpose of bestowing the author the bundle of rights as per law.

However, this position was later turned upon its head by Eastern Book Company v DB Modak, a landmark decision of the Supreme Court in in 2008, wherein it mandated a de minimis (minimal) threshold of creativity for an author to claim copyright. The apex court explained that while it did not prescribe standards as exacting as those under patent law, which required novelty and non-obviousness, merely expending labour and effort by the author would no longer suffice to warrant protection under Indian copyright law.

The Supreme Court also laid down several guidelines to determine copyright infringement in its decision in RG Anand v Deluxe Films, wherein it stated that where the theme or subject matter of two works is the same, or where more than one work originates from a common idea, similarities were bound to occur and would not be construed as infringement of copyright.

However, where a latter work substantially and materially copies from a prior work, such determination being made from the viewpoint of a reader or spectator as the case may be, and if there was no material divergence in the latter work from which it could be inferred that such similarities were merely coincidental, the originality of the latter work would be suspect in the eyes of the law.

The Idea-Expression Dichotomy

A common theme in the above cases was that the subject matter of copyright protection is the expression in the work, and not the idea, themes or facts. In the milestone decision of Baker v Selden, the US Supreme Court in 1879 laid down the proposition that in literary works containing the description of any art, for instance a description of Pranic Healing asanas (postures), the copyright of the author would be in respect of such literary work - the expression, but exclude ownership of the idea - in this case, ownership over the asanas or the right to restrict its performance. The latter kind of rights comes under the domain of patents, for grant of which the law requires a higher standard. Namely, an author would be required to comply with the tests of non-obviousness, novelty and utility of the art. In the present instance, the Delhi High Court stated that there seemed enough material on record to believe that the asanas for which protection was sought for were in the public domain for many years, being described in books by Indian authors at the beginning of the 20th century.

The Delhi High Court further observed that the ratio of Baker was more recently reiterated by the US Supreme Court in Feist Publications v Rural Telephone Services Company. In Feist, the US Supreme Court expounded on the limited protection available under copyright to works which are fact based, as under the idea-expression dichotomy facts, ideas and themes - no matter how original - are excluded from the scope of copyright of the original author and may fairly be used by others, provided the description (which would primarily consist of selection, arrangement and presentation of the facts) is different.

Yoga Asanas Not Copyrightable

Based on the above doctrines as developed by rulings of courts in India, the United Kingdom and the United States, the Delhi High Court held that in the present instance the performance of asanas could not be protected on the basis that they were described in the copyrighted literary works authored by the Master.

The court then proceeded to analyse the merits of the plaintiff's claim that the performance of the asanas could come under the ambit of protection as an original dramatic work, being a choreographic work. The definition of the term 'dramatic work' under the Copyright Act, 1957 being inclusive in nature, the court relied on scholarly commentaries for further clarity on this subject. A study of these indicated that dramatic works implied works which are capable of being physically performed, created with a view of its performance and contained sufficient features or elements linked or connected to constitute so as to be capable of performance. This last requirement of capability of performance was cited by authorities as the reason why sports or exercises - and by implication Pranic Healing or Yoga asanas - could not be considered as dramatic works, on account of their inherent uncertainty.

The court also cited with approval the recent decision of the District Court of California in Bikram's Yoga College of India v Evolution Yoga which examined the capability of yoga postures to be protected as a dramatic work. In ruling against such a proposition, the District Court ruled that yoga postures were overly simplistic and could not be classified as choreographic works, which require more than the mere selection and arrangement of physical movements. Further, the preferred form to record such choreographic works are by way of Labanotation or motion picture of the dance - which were not true of the works of the author. Lastly, the District Court further relied on the stated policy of the United States Copyright Office, that compilations of exercises (specifically yoga asanas) were not subject matter of copyright.

Accordingly, the Delhi High Court rejected the plaintiff's claim that the sequences of Pranic Healing techniques were dramatic works capable of copyright protection.

An Open Secret

The plaintiff had also instituted an action for trademark infringement and passing off against the defendants by virtue of the fact that they were the registered owners of the trademark for the phrase 'Pranic Healing', and were therefore entitled to prevent other parties from using such term. The court having an opportunity to examine this matter in greater detail found that there were several Indian texts which significantly predated the trademark applications of the plaintiff. Accordingly, the court ruled that neither the Master nor the plaintiff had coined the registered trademark, which clearly had other origins and was available in the public domain.

The plaintiff had also argued that as they had incurred much expenditure on the brand name 'Pranic Healing', the phrase had acquired a secondary meaning distinctive from its connotation in ancient Indian texts. However, this too was turned down by the court which found that due to widespread usage of the term prior to registration of such mark, such term could not acquire any distinctive secondary name identifiable with any specific person (such as IIS or the Master) irrespective of the investment or costs incurred by branding exercises.

Taking strong exception to the conduct of the plaintiff in registering a mark, which was neither inherently distinctive nor capable of distinguishing the goods or services of the plaintiff from its competitors on account of such phrase being in the public domain for a considerable period of time, the court charged the plaintiff as committing fraud on the trademark registry by making incorrect claims and withholding relevant information from authorities at the application stage. Relying on the ratio of a division bench of the Delhi High Court in Marico Limited v. Agro Tech Foods Limited wherein it was held that registration of trademark only leads to presumption of its validity, which is a rebuttable presumption, the court held that the trademark registration obtained by the plaintiff was inconsequential. Accordingly, it rejected grant of an injunction against the defendants on account of the phrase 'Pranic Healing' appearing to be a generic term over which the plaintiff could not be granted monopoly of usage.

Parting Shot

While there were several other issues before the Delhi High Court that were taken up in detail in its interim order in the present case, the grounds cited on its reluctance to grant copyright and trademark protection on Pranic Healing techniques, equally applicable to yoga asanas, have deservedly caught the eye. While the court declaimed its findings as tentative and stated that they would not be binding when deciding the matter at a later stage after recording evidence lead by the disputing parties, it has brought renewed focus on intellectual property discussions regarding modern commercial appropriation of traditional knowledge.


Disclaimer - The views expressed in this article are the personal views of the authors and are purely informative in nature.

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