Copyright protection for brochures, catalogues

I. Introduction
Businesses rely extensively on promotional and informational tools such as product catalogues and brochures to showcase their goods and services to potential customers. Such materials usually include product photographs, description, specifications, marketing text, and graphics layout that is meant to capture the attention of the consumers. Companies tend to spend a lot of money and creativity to come up with these catalogues and brochures to enhance their presence and brand name in the market. In the contemporary business world, the simplicity of reproduction and distribution of such materials digitally has enhanced the potential threat of unlicensed duplication of such materials by other market participants. Consequently, companies often seek to make use of intellectual property as a means of discouraging such duplication. One of the pertinent legal questions, in turn, is whether businesses are entitled to assert copyright protection over the product catalogues and brochures.
According to Section 13(1) of the Copyright Act 1957, original literary, artistic, musical and dramatic works are accorded copyright protection. Written descriptions and photographs are usually found in catalogues and brochures, and these can be classified as literary works and artistic works, respectively. Nonetheless, safeguarding these materials will depend largely on whether they meet the legal criteria for originality and whether the information is the expression of creativity rather than just facts. As such, it is evident that the issue of a business asserting copyright on catalogues and brochures would have to be carefully analysed based on what the statute and the courts have to say on the issue.

II. Legal Basis for Copyright Protection of Catalogue and Brochures
The copyright protection in India has a statutory basis, which is established in Section 13 of the Copyright Act, 1957, according to which, copyright survives in original literary, dramatic, musical, and artistic works. Section 2(o) of the definition of literary work is very general and encompasses not just the traditional literary works but also the compilation, tables and databases in computers. The product catalogue and brochures, usually comprised of written description and the compilation of product information, can thus qualify to be literary works provided they possess the requirement of originality.
Besides text, there is often text in the catalogue which may also contain photographs and graphical illustrations of products. These are contained in Section 2(c) of the Copyright Act that covers paintings, drawings, photographs, and works of artistic craftsmanship. Therefore, a catalogue or a brochure can have several elements, which can be separately copyrightable.
It should be noted, though, that the copyright law does not protect ideas but only safeguards the expression of ideas. Factual information such as product specifications, prices or technical information cannot be copyrighted. The ingenious way in which such information is conveyed or given in the catalogue is what the law covers.

III. Requirement of Originality in Product Catalogue
Originality is the key to safeguarded copyright. The Indian copyright law does not insist on novelty in the strict sense; however, the work must be the result of the author, and it must entail the use of skill, labour and judgment.
In Eastern Book Company v. D.B. Modak[1], the Supreme Court elaborated the contemporary principle of originality by dismissing the old doctrine of sweat of the brow by noting that a modicum of creativity is the requirement of copyright protection. The Court stated that mechanical labour or simple compiling of information is not enough to claim copyright protection.
Using this principle on a product catalogue, a company can be said to have copyright protection, provided the catalogue shows creativity in its preparation. As an example, original marketing descriptions, unique product stories, and well-planned layouts can display the necessary amount of creativity. On the same note, the photographs made with the express purpose of being included in the catalogue can also be considered as works of art that are to be defended by the copyright law. On the other hand, in case the catalogue only includes normal product descriptions or technical information that is written stereotypically, it might not meet the condition of originality and thus not get the copyright protection.

IV. Copyright Protection in Compilations and Arrangements
Product catalogues are simply lists of product data, and copyright law acknowledges that a compilation is likely to be given protection in cases where the choice, organisation, or arrangement is original to the content.
The issue that collections can receive copyright was acknowledged in Govindan v. Gopalakrishna[2], in which the Madras High Court decided that copyright may exist in compilations where there has been sufficient skill and judgment in the selection and arrangement of the material.
Equally, in University of London Press Ltd. v. University Tutorial Press Ltd[3], it was noted that originality does not entail an inventive thought but an independent intellectual work. The work should not be duplicated and should have been a creation of the author.
The application of these principles can make the product arrangement in a catalogue, page design, category structure, and creative presentation of the information elements, all ways of making the work unique. Should a catalogue exhibit such creative organisation, the copyright of the product information may be deemed as copyrighted, even though the information contained in the product may not be so.

V. Limitations on Copyright Claims over Catalogue
The protection of the product catalogue has a limited scope in spite of the potential protection. The copyright law does not give businesses a monopoly on the commercial information held in the catalogue. The competitors may also use the same factual product information, provided they do not imitate the original expression or design of the catalogue.
This principle was again affirmed by the Supreme Court in R.G. Anand v. Deluxe Films[4], where it was decided that copyright does not safeguard ideas but only the expression of an idea. As such, two catalogues may have similar product information, but the infringement will occur only when the original expression is significantly copied.
The other constraint is in the case where the catalogue only holds functional or purely descriptive information. In this case, creative input can be missing, and the work might fail to satisfy the originality requirement that was set in Eastern Book Company v. D.B. Modak.

VI. Conclusion
In conclusion, the Copyright Act of 1957 allows businesses to obtain copyright protection of product catalogues and brochures in case they contain original creative features in the form of written descriptions, photographs, and unique design layouts. Copyright protection is, however, not applied to factual product information like specifications, prices or technical information. It only protects the original expression and presentation of such information. Thus, as far as businesses can protect the creative part of their catalogue and brochures, the competitors are free to use the same factual information, provided they do not copy the original expression or design of the material.