COPYRIGHT PROTECTION IN THE VIDEOGAME INDUSTRY

The gaming business is one of the quickest developing enterprises on the planet. Videogames
have developed since 1958 and now not only videogames are just restricted to be played by
kids, presently thinking about the overview, the business has progressively more grown-up
players when contrasted with the children. The videogame business is a multi-billion-dollar
industry. With the gaming business booming quickly, the growth of piracy is additionally
going legitimately proportional with its increase. Piracy appeared inside some time from the
date of the presence of videogames. The hackers scrambling the source codes and software of
games make the games accessible at some expense or free which is in any case lesser than the
original cost of the game.

COPYRIGHT PROTECTION

The first-ever convention for protecting the literary and artistic works goes back to the Berne
Convention for the Protection of Literary and Artistic Works, also known as Berne
Convention, 1886 which was acknowledged in Berne, Switzerland. The Convention was gone
into by the parties for the protection of the copyright of the work by the author and it was
considered as an international agreement for the same with the parties to the convention
keeping their state copyright laws. The signatories to the Berne Convention incorporate India,
United States of America (USA), United Kingdom (UK), China, and so on. With specific
amendments to the convention, PC programs, game codes were added to be secured under the
ambit of copyright law.

World Intellectual Property Organisation (WIPO) introduced the WIPO Copyright Treaty in
the year 1996 due to the growing advent of technological advancements and the growth of the
videogame industry and protection of the original expression of the thought of the author and
not the ideas. Many Countries drafted the independent laws for the protection of the
Intellectual Property so as to protect the right of the authors in relation to their work and
inventions. The basic context to the videogame industry, music, code, story, characters are
copyrightable. Videogames are protected by copyright as they are audio-visual and also as it
contains both literal and non-literal elements.

Copyright is basically concerned with protecting the work or expressions of the human
intellect. Copyright protects literary and artistic works. It includes music, fine arts,
technology-based works such as computer programs and electronic databases. Article 2 of
Berne Convention, 1886, states the following, “The expression ‘literary and artistic works’
shall include every production in the literary, scientific and artistic domain, whatever may be
the mode or form of its expressions for example books, pamphlets lectures, addresses,
sermons and other works of the same nature; dramatic or dramatic-musical works;
choreographic works and entertainments in dumb show; musical compositions with or
without words”. It gave a narrow meaning and thereby with the WIPO Treaty, 1996 computer
programmes were added.

CASES

In the case of Tetris Holding v. Xio Interactive (2012) 3 US DISRICT COURT NEW
JERSEY, the defendant created a game named, Mino whose appearance was nearly identical
to Tetris with Tetris contending that 14 copyrighted elements were present in defendant’s
game. The defendant admitted to downloading of Tetris and conducting extensive research on
the same to check for what parts can be legally copied and copied the rules of the game. Later
on, it was presented by Tetris that in-game screenshot was taken by the defendant. After
applying relevant tests of merger and scenes-a-faire which helped in differentiating when an
idea and expression are inseparable. The copying of the rules of the game is the infringement
on the copyright laws as each game has different rules. The Courts stated that “there is such
similarity between both the games which is akin to literal copying by the defendant”. The
tests were easily dismantled as the copying was very clear.

In the case of Atari Games Corp. v. Nintendo of America Inc. (1992) 2d IUNITED STATES
COURT OF APPEALS FOR THE FEDERAL CIRCUIT, Nintendo designed a 10NES lock-
out system to prevent unauthorised games from running on its console. Atari began its work
to reverse engineer the 10 NES but did not succeed. In 1987, Atari became the Licensee of
Nintendo and gained the right to make games for Nintendo. Atari obtained the source code of
10 NES from Copyright Office by falsely alleging that copy was required by them and
succeeded in making its replica by the name, Rabbit with the same functioning. Atari was
held liable for copyright infringement by deceitfully obtaining the source code and making
software akin to 10 NES. The above-mentioned cases clearly define how computer
programmes are protected under copyright law as well as taking of concepts does not amount
to the infringement if new changes have been added on and the proper difference is visible.

WORLD PERSPECTIVE REGARDING VIDEOGAME INDUSTRY

United States of America- US Congress made the Copyright Act, 1976 with the view of
protecting the multi-billion-dollar videogame industry. US Copyright Office specifically
states: “Copyright does not protect the idea for a game, its name or title, or the method or
methods for playing it. Nor does copyright protect any idea, system, method, device, or
trademark material involved in developing, merchandising, or playing a game.” Copyright
laws in the USA have been deciphered and a victory was achieved in favour of the
videogame industry after the Tetris Holding Ruling. With various decisions taken by the US
Courts on copyright cases, the judgments arising out of them act as precedents and are helpful
in differentiating what all things violate the copyright law and what all do not.

The USA and UK refers to distributive classification which provides separate copyright
protection for different elements of the video games in regard to the nature of literary, graphic
and audio visual. As in the video games differ from books or music work, which can be
protected as an object while elements of video games can gain separate protection. The USA
does not have a common legal classification in defining video games. Their attribution to the
certain copyrightable work depends on the predominance of particular characteristics of
games. So, the videogames are treated as computer programming and considered as work of
authorship with classifying of literary elements as a literary work. In the case of
predominance of graphic and sound elements, a game may be classified as an audio-visual
work of art. In Stern electronics inc v. kaufiman, the court said that the repetitive sequence of
a substantial portion of the sights and sounds of the game qualifies for copyright protection as
audio visual work.

India- The videogame industry in India is growing and is expected to grow more in the near
future but currently covers a minuscule part in the global market. Copyright Act, 1957-
Copyright means the exclusive right to do or authorise others to do certain acts in relation to
(1) original, literary, dramatic, musical and artistic works, (2) cinematograph film, and (3)
sound recordings. Generally, copyright is the right to copy or reproduce the work in which
copyright subsists and is listed in S. 14 of the Copyright Act, 1957. In the videogame
industry, it covers the computer programmes, source codes, game characters. The main object
of this Act is to reward the author, composers, and game developers with their work’s
exclusive right for a limited period of time and earn monetary gains. Sec. 2(o) of the
Copyright Act, defines literary works to include computer programmes, tables and
compilations including game codes, computer database which means that the game
developer, coder, programmer can be the author of that work and the game animator, creative
director, etc. will not be considered as the author. Sec 2 (ffc) of the Copyright Act, includes
computer software and programmes. Programmes devised for the working of computers is
generally regarded as literary work. It thereby, includes the making of the software of video
games.

In the case of Sony Computer Entertainment Europe Ltd. Vs Harmeet Singh and Ors. 2013
Delhi HC, the affiliate company of Sony Computer Entertainment made gaming consoles
known as PlayStation 3, PlayStation Vita, etc. and developed various games to be played on
those consoles. One shopkeeper, Mr. Harmeet Singh and his associates sold such consoles in
New Delhi by unlocking the system and modifying original equipment, thereby, making it for
use with pirated software with the help of ‘Jailbreak’ software which breaks the encrypted
code of the game. This was done by charging a nominal price from the purchaser enabling
him to play expensive games at a very low cost. Mr. Singh only bought one original copy of
the game and by overriding the code sold it to others. An ex-parte injunction was passed by
the Court preventing Mr. Singh from copying, selling offering for sale, distributing,
modifying the processing unit of consoles.

Nowadays, the videogame industry is booming with games having realistic battlegrounds,
terrains, real-world object behaviours, etc. With too many numbers of games coming into the
global market with the same concepts, similar actions and storyline, the problems which other
game developers are facing is of copyright infringement of the game, game coding used in
the software, expressions used in the game, characters and many more.

Comparing, Player Unknown’s Battlegrounds, popularly known as PUBG, led by EPIC

Games, Tencent Games and Fortnite Battle Royale, led by EPIC Games, with both of the
games released in the year 2017, the games are down-the-lines similar. PUBG filed a
copyright violation lawsuit against ‘Fortnite’ regarding the various similar features like
battleground warfare, concepts, hosting players on various servers, game modes, etc. This
provoked a plagiarism controversy and allegations that ‘Fornite’ copied “Battlegrounds”
items and user interface. As the earlier version of ‘Fortnite’ only had “Save the World” mode
in which forts, walls were built by the players and had to defend them from the enemy. Later
on, the game was updated and free-to-play “Battle Royale” portion was added to the game
which was similar to PUBG as contented by the Korean game developer.

In Nova Productions Limited v. Mazooma Games Limited 2007 COURT OF

NETERLANDS, an appeal was filed in the Court regarding the infringement of copyright by
two games, namely, Jackpot Pool and Trick Shot. The appellant alleged that these two games
copied a number of outputs from their game, Pocket Money. Appellant’s contention was that
the outputs that appeared on the screen of the defendant were inspired by the appellant’s
game. It was held that no copyright infringement took place as the outputs were way too
general. Court also stated that “mere emulation of another’s program without copying the
source code or graphics would not constitute copyright infringement”.

I Ate My Heart Inc v. Mind Candy Ltd., the character in the Moshi Monsters game was called
Lady Goo Goo (a baby with blond hair wearing large sunglasses). The appellant objected to
the defendant’s release of a song called Moshi Dance sung by Lady Goo Goo which was
alleged by the appellant that it resembles Lady Gaga’s song Bad Romance which received a
lot of views. Court held that the character of Lady Goo Goo can be misunderstood by people
as Lady Gaga with the latter having a reputation in the music industry could amount to her
loss of reputation.

Considering the abovementioned cases, it is easily inferred that a very similar resemblance to
the character amounts to a violation of IP but the mere taking of a concept from a game
doesn’t amount to copyright infringement.

Copying of concepts is anyways permissible but modification in it is necessary with new

innovations in the game are mandatory for the game to not violate any Intellectual Property
laws, suppose, If a video game is a car racing game, then for making it unique, developer can
add various types of hybrid cars, unique rewards, different way of showing the damages to
the car, etc., then certainly, the game will stand out from the rest and no infringement would
have been committed by mere taking of the similar concept from the other game.

PUBG and Fortnite differ a lot from each other in their availability and price as Fortnite is
available for free on any platform like PC, PS4, X-box, mobile whereas PUBG is only free if
played on the mobile version. The graphics of both the games are different as the weapons
glow in the dark in Fortnite whereas there is nothing of this sort in PUBG. The gameplay is
vastly different as fornite includes a building mechanic with collection of resources to build
forts, bridges for the protection of the player from bullets whereas PUBG is an open
battleground with 100 players being hosted at a time in a particular server with the players to
collect weapons, medicare, driving vehicles and running over players with the same vehicle,
etc. and in-game bombings with restricting of game area. These differences in the gameplay,
different game codes set apart both the games and therefore, in my opinion, it doesn’t amount
to infringement of the copyright of the authors of PUBG.

SUGGESTIONS

Video game industry is a multi-billion-dollar industry which is constantly growing, globally.

With the advent of technological developments and even piracy into the market, any
infringement of the IP causes millions of dollars of losses to the game developers or the
authors. Techno-legal framework in the videogame industry needs to be more strengthened
for covering wide and relevant cases and lowering down the piracy by the sale, distribution or
licensing of games with proper channelization with the distributors and licensees known in
the industry and strict indemnity clauses in the end-user license agreement. The Virtual
Private Networks (VPNs) are changed by the players sitting in India and playing games in
New York, London by applying proxies on their servers. The geo-location restrictions are
easily by-passed in India and thus, India needs a strong techno-legal framework.

In India, various amendments in the Copyright Act, 1957, Patent Act, Design Act, 2000
needs to be done for making the Acts at par with global conventions and state laws of
different countries for protecting the rights of game developers in the country.

The pace in the process of copyright, trademark, patent registration should be increased as the
videogame industry is growing swiftly and every day hundreds of new games are available
which can put the hard-work, money and time of the game developer at stake whose right
could be violated. With more patents in the industry, it will be of utmost help to the company
as it will attract investors, finances, provide credibility and strength in the market both
domestically and globally. The state acts should be made stricter to curb the piracy which is
prevalent in the market by restricting the VPNs and illegal websites access to the people.

If all the requisites are followed like proper agreements entered into, time to time
amendments in the statutes for incorporating new changes in the global market, incentives to
game developers for new inventions, the industry will have minuscule rates of piracy and will
be able to contribute more to the national economy as well as the rights of the authors or
developers will be protected. Though there is a provision for punishment if somebody does
copyright infringement but the deterrence effect is not being created due to no proper watch-
dog in this industry. Videogame industry and ministry of communications of each country
should work in collaboration to eliminate the piracy from the game industry and thus, helping
the rights of the authors.

Competition Commission of India during the Pandemic

Due to the Covid-19 Pandemic, on 24th March 2020, the Government of India announced national
lockdown for 21 days as social distancing is the only way out for dealing with the Corona virus
disease. However, a day before such announcement, on 23 rd March 20201 the Competition
Commission of India had issued a notification whereby:

 it adjourned all matters listed before it till 31st March 2020

 suspended following till 31st march 2020

o all filings in relation to Section 3 and 4 of the Act

o all notification in relation to combination under Section 6 and 20 of the Act,

o all other filing, submissions and proceeding under the Act and regulation made there
under including those before the Director general

o and pre-filing consultations.

Thereafter CCI on 13th April, 2020,2 continued with suspension of all activities but allowed electronic
filing of combination notices. Vide order dated 20 th April, 2020,3 CCI continued with suspension of
hearing of matters till 3rd May but allowed submission of information under section 3 and 4 as well as
Combination notices electronically at the addresses mentioned in the notice.

With the national lockdown in place, all businesses were forced to shut down and the only activity
permitted was what came within the realm of essential services/ commodities – such as grocery
stores, chemists, banks (ATMs).

Due to the nature of the virus that was the cause of such drastic steps being taken by countries all
over the world, there was an immediate sharp increase in the demand for sanitisers and face masks
all over the country. Seeing an opportunity to profit at the expense of the general public, in such
times of crisis, companies/ entities manufacturing face masks and sanitisers arbitrarily increased, by
manifold, prices of such essential products. .

For instance, an N-95 mask which was originally sold for Rs.150/- each was now suddenly being
offered at Rs. 500/- each. Similar to the masks, even prices of hand sanitisers shot up through the
roof – a 30 ml bottle which would normally cost between Rs.35-50/- was now being sold at Rs.999/-.
Thus, prices of such essential items were manipulated by the manufacturers to fill their pockets, at
the health risk of innocent people at large. Infact, in an article that appeared in Economic Times on

1
https://www.cci.gov.in/sites/default/files/whats_newdocument/scan1.pdf
2
https://www.cci.gov.in/sites/default/files/whats_newdocument/COVID-19.pdf
3
https://www.cci.gov.in/sites/default/files/whats_newdocument/Notice20042020.pdf
5th March, 2020,4 it was reported that "As Covid-19 patients continue to rise in India, some retailers
and mask manufacturers are cashing in on the virus terror by jacking up prices by 2 to 3 times".

Similarly, Business Today5 vide its article published on 9th March 2020 also highlighted the plight of
common man due to prices being hiked in respect of essential items like masks, sanitisers and
medicines – sometimes prices being increased by 300%!!

As the demand of hand sanitizers and masks increased, the Ministry of Consumer Affair, Food and
Public Distribution, in exercise of its powers under the Essential Commodities Act, 1955, issued a
notification dated 13th March, 2020 whereby an order was passed directing "masks (2ply & 3ply
surgical masks, N95 masks) & hand sanitizers" to be included in the Schedule as an essential
commodity to enable the Government to regulate the production, quality, distribution, logistics of
masks (2ply & 3ply surgical masks, N95 masks) & hand sanitizers (for COVID 19 management).6

Thereafter on 21st of March 2020,7 the Ministry of Consumer Affair, Food and Public Distribution
issued another notification seeking to regulate the price of masks and hand sanitizers. Vide the said
order, the Ministry directed as follows:

 The retail prices of Melt Blown non-woven fabric used in manufacturing masks (2 ply and 3
ply) was ordered to be not more than the prices prevailing on 12.02.2020;

 The retail prices of masks (3ply surgical mask) was directed to be not more than Rs.10 per
piece and that of mask (2ply) shall not be more than Rs.8 per piece;

 The retail prices of hand sanitizer was ordered to be not more that Rs. 100 per bottle of
200ml and for other quantities it was directed to be fixed in proportion of the prices fixed.

The said order was ordered to remain in force till 30th June, 2020.

In fact the situation was so grave that Supreme Court of India entertained a PIL filed by an NGO,
Justice For Rights Foundation,8 whereby the Petitioner sought directions from the Supreme Court to
the Government to ensure fair and equitable distribution of surgical/ N95 masks and also the sale
and distribution of hand sanitizers and liquid soap and to make such items available to the public at
large at reasonable prices. Hon'ble Supreme Court vide its order dated 3 rd April, 2020 after taking
into consideration the steps taken by the Government with regard to availability of surgical/ N95
masks and hand sanitisers at reasonable prices, disposed off the PIL.9

The Competition Commission of India also stepped in to issue an advisory to Business in times of
Covid-19, aimed to serve as a deterrent to erring businesses indulging in rampant exorbitant
increase in prices of certain essential commodities such as ventilators, face masks, gloves, sanitisers,
medicines and essential services such as logistics, testing etc. Vide its advisory issued on 19 th April,

4
https://economictimes.indiatimes.com/industry/cons-products/fmcg/coronavirus-terror-in-india-sanitisers-
masks-sold-out-prices-peak/articleshow/74487298.cms?from=mdr

5
https://www.businesstoday.in/current/economy-politics/coronavirus-impact-what-expensive-whats-cheaper-
india/story/397892.html
6
https://consumeraffairs.nic.in/sites/default/files/file-uploads/essential-commodities-order/1087.pdf
7
https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/Notification21mar2020.pdf
8
https://main.sci.gov.in/supremecourt/2020/10792/10792_2020_0_2_21583_Order_01-Apr-2020.pdf
9
https://main.sci.gov.in/supremecourt/2020/10792/10792_2020_0_7_21584_Order_03-Apr-2020.pdf
2020,10 the CCI warned the businesses of various consequences under the Act that could be
attracted due to the rampant exorbitant increase in prices of essential commodities.

In the words of the Commission, "COVID – 19 has caused disruptions in supply chains, including
those of critical healthcare products and other essential commodities/ services. To cope with
significant changes in supply and demand patterns arising out of this extraordinary situation,
businesses may need to coordinate certain activities, by way of sharing data on stock levels, timings
of operation, sharing of distribution network and infrastructure, transport logistics ,R & D,
production etc. to ensure continued supply and fair distribution of products."

Vide the said advisory, CCI informed general public as well as business entities dealing with essential
commodities of the various provisions of The Competition Act, 2020 prohibiting conduct that causes
or is likely to cause an appreciable adverse effect on competition. It informed businesses of the
provisions of Section 3(3), 19(3) of the Act which enables the Commission to conduct competition
assessment and in that process it can have due regard, amongst others, to the accrual of benefits to
consumers; improvement in production or distribution of goods or provision of services; and
promotion of technical, scientific and economic development by means of production or distribution
of goods or provision of services. It further warned the business of CCI's power to impose sanctions
on business found guilty of violating the provisions of the Act and while considering such pleas, only
such conduct of businesses which is necessary and proportionate to address concerns arising from
COVID-19 will be considered. Thus it cautioned the businesses not to take advantage of Covid-19 to
contravene any of the provisions of the Act.

Thus to sum up following steps were taken up by the Government as well as the Competition
Commission of India for implementing an effective regulation amidst the global pandemic

Filings under Section 3 and Section 4

Sections 3 and 4 of the Competition Act, 2002 (‘Act’) deal with anti-competitive agreements and
abuse of dominance respectively. Per the Notice dated 23 rd March, 2020, all filings related to Section
3 and Section 4 of the Act were suspended. Further, vide Notice dated 30 th March 2020, all filings or
compliances due on or before 14th April 2020 in respect of pending cases were suspended till
14th April, 2020.

The Notice dated 13th April 2020 allowed for the filing of information with respect to the provisions
of Section 3 and Section 4 of the Competition Act, 2002 electronically. Further, the Notice dated
20th April 2020, provide for notification of fresh dates for all other compliances up to 02 nd May 2020.

Hearings before the Commission

Even before a national lockdown was announced in India on 24 th March 2020, the CCI had adjourned
the hearing of all cases from 17th March 2020 to 31st March 2020. Further, on 30th March 2020, all
the matters listed for hearings upto 14th April, 2020 were adjourned by the CCI. Per the latest
Notices dated 13th April 2020 and 20th April 2020, fresh dates are to be notified by the CCI for all the
matters listed for hearing up to 03rd May, 2020.

10
https://www.cci.gov.in/sites/default/files/whats_newdocument/Advisory.pdf
Pre-filing Consultations

All pre-filing consultations were suspended by the CCI vide notice dated 23 rd March 2020. These
Consultations have been allowed through video conference by the Notice 13 th April 2020.

Notification of Combinations

All notifications in relation to combination under Section 6 of the Act were suspended vide the
Notice dated 23rd March 2020. The Notice dated 30 th March 2020 allowed for electronically filing of
combination notices only under the Green Channel (under Regulation 5A of the Combination
Regulations). The Notice dated 13th April 2020 allows for the electronic filing of all combination
notices with the CCI.

During this period, the CCI has approved several notifications such as the formation of Joint Venture
between Adani Green Energy Limited and Total S.A., in solar power generation business in India,
approval of acquisition of 100% shareholding of GMR Kamalanga Energy Limited by JSW Energy
Limited, approval of proposed acquisition of 80.1% stake by Hitachi Limited in the power grid
business of ABB Limited. These approvals were made during CCI’s meeting held through video
conferencing.

Advisory to Businesses in Time of COVID-19

The CCI on 19th April 2020 issued an advisory to businesses in this time of this pandemic. The CCI has
acknowledged that COVID-19 has caused disruptions in supply chains and that information sharing
and coordination may be required by businesses to ensure continued supply and fair distribution of
products and services. Under Section 3(3) of the Act, coordination amongst competitors is presumed
to cause Appreciable Adverse Effect on Competition (AAEC). However, at the time of competition
assessment, CCI has to take into due regard, amongst other factors, pro-competitive effects such as
the accrual of benefits to consumers; improvement in production or distribution of goods or
provision of services; and promotion of technical, scientific and economic development by means of
production or distribution of goods. Therefore, the Act has in-built safeguards to protect businesses
from sanctions for certain coordinated conduct, provided such arrangements result in increasing
efficiencies.

The CCI has suggested that it will only consider such businesses which are necessary and
proportionate to address concerns arising from COVID-19 and that the businesses must not take
advantage of COVID-19 to contravene any of the provisions of the Act. It is to be noted that the
advisory does not provide any exemption from the application of the Act but merely provides that
the CCI will consider the circumstances that occurred during COVID-19 while undertaking its
assessment.
 THE SUPERIORITY OF DIRECT EVIDENCE OVER CIRCUMSTANTIAL EVIDENCE: A COMPARATIVE ANALYSIS

I. Introduction

The Indian Evidence Act, 1872 (hereinafter, ‘the Act’) governs the law pertaining to evidence in India.
Section 3 of the Act defines evidence as including both oral evidence and documentary evidence.
The evidence is any matter of fact that a party to the lawsuit offers to prove or disprove on a
particular issue in a particular case. It can be said as the system of rules and norms or an
arrangement of principles and norms that is utilized to figure out which certainties might be
conceded, and to what degree a judge or jury may think about those realities, as verification of a
specific issue in a lawsuit.11

Under Indian law, numerous types of evidences exist, inter alia which are;

 Oral Evidence: Section 60 of the Act defines Oral evidence as evidence which was
personally witnessed by the person giving such evidence.12
 Primary Evidence: Section 62 of the Act provides primary evidence and states that it
is that evidence which gives a vital hint towards a disputed fact.13
 Secondary Evidence: Secondary evidence is relied upon by the courts in the absence
of primary of direct evidence, and is mandates under Section 63 of the Act.14
 Documentary Evidence: As mentioned, Section 3 of the Act deals with documentary
evidences. It states that all the documents which are presented before the courts for
inspection constitute documentary evidence.
 Hearsay Evidence: It refers to evidence which is neither heard nor seen by the
witness, but it came to his/her knowledge from some third person.
 Circumstantial Evidence: It refers to an evidence which does not directly refer to a
disputed fact, however, attempts to prove a fact by drawing an inference.

11
V. Ashwini, Authenticating Electronic Evidence: §65b, Indian Evidence Act, 1872, (2015) 8 NUJS L. REV.
43 < http://docs.manupatra.in/newsline/articles/Upload/86FCE7DB-49E9-44F4-9941-DD9D4BDB2ACA.pdf>
accessed on 20 July 2020
12
Section 60, the Indian Evidence Act, 1872.
13
Section 62, the Indian Evidence Act, 1872.
14
Section 63, the Indian Evidence Act, 1872.
In essence, direct evidence refers to an evidence which directly establishes a fact and can include
oral, primary, and documentary evidence. On the other hand, circumstantial evidence focuses on the
circumstances of the crime to prove the facts.

a. Direct Evidence:

Direct Evidence is real, tangible, or clear evidence of a fact, happening, or thing that requires no
thinking or consideration to prove its existence. It does not require any type of reasoning or
inference to arrive at the conclusion.15 Indian courts have held that direct evidence is the best form
of evidence and subverted the notion of motive vis-à-vis direct evidence. The motive loses all its
importance in a case where direct evidence of eyewitnesses is available, because even if there may
be a very strong motive for the accused persons to commit a particular crime, they cannot be
convicted if the evidence of eyewitnesses is not convincing.16

b. Circumstantial Evidence:

In India, the concept of circumstantial evidence has a fascinating history. The question whether
conviction can take place only on the sole basis of circumstantial evidence has been hotly discussed.
The concept of circumstantial evidence has evolved through the interplay between statutes and
judicial interpretation. Circumstantial evidence, also known as indirect evidence, is an unrelated
chain of events which when put together formulates circumstances leading to the commission of the
crime and can be used to derive a conclusion.17

In the case of Ashok Kumar v. State of Madhya Pradesh18, the Supreme Court held that for
circumstantial evidence to sustain conviction, the chain of events should be complete and should
establish the guilt of the accused without probability of any other alternative. Similar rationale has
been propounded by the courts in a catena of cases.19 Therefore, circumstantial evidence can sustain
conviction, however, certain essentials/thresholds need to be fulfilled.

II. Superiority of Direct evidence over Circumstantial evidence: An Indian

Perspective

In India, courts have opted for the view that in the absence of direct evidence, the court will look at
circumstantial evidence. In cases where direct evidence is available, it will take precedence over
circumstantial evidence. While the law does not create this distinction between direct evidence and
circumstantial evidence, numerous precedents indicate the same.

The Supreme Court in T.M. Kirkan v. State of Maharashtra20 deal with scenarios in which
circumstantial evidence is essential. However, the court also noted that a court will only take into
consideration the circumstantial evidence, in the absence of any eye-witness, thus establishing the
superiority. With regards to death penalty, Justice Sinha in Swammy Shradhananda v. State of

15
Y. Tandon, The Distinction Between Direct and Circumstantial Evidence, I Pleaders, (Dec. 21, 2017) <
https://blog.ipleaders.in/direct-evidence/> accessed on 20 July 2020
16
KS Chauhan, Law of Evidence, (2013) 49 ASIL 627 ,<
http://14.139.60.114:8080/jspui/bitstream/123456789/4240/1/20%20Law%20of%20Evidence.pdf> accessed on
20 July 2020
17
S. Ray, Circumstantial Evidence in India, LEGAL SERVICE INDIA, (Feb. 1, 2019)
<http://www.legalserviceindia.com/article/l136-Circumstantial-Evidence.html> accessed on 20 July 2020
18
AIR 1989 SC 1890.
19
Bodh Raj v. State of Jammu & Kashmir, AIR 2002 SC 316
20
(2006) 10 SCC 681
Karnataka21, held that conviction solely resting on circumstantial evidence must attract negative
attention. Further, Justice Katju held that while no law differentiates between direct and
circumstantial evidence, for the court to consider circumstantial evidence, it must be established
beyond reasonable doubt.

The Supreme Court in G. Parshwanath v. State of Karnataka held that

“The evidence tendered in a court of law is either direct or

circumstantial. Evidence is said to be direct if it consists of an
eyewitness account of the facts in issue in a criminal case. On the
other hand, circumstantial evidence is evidence of relevant facts
from which, one can, by process of intuitive reasoning, infer about
the existence of facts in issue or factum probandum… In dealing
with circumstantial evidence there is always a danger that
conjecture or suspicion lingering on mind may take place of proof.
Suspicion, however, strong cannot be allowed to take place of
proof and, therefore, the court has to be watchful and ensure that
conjectures and suspicions do not take place of legal proof.” 22
Thus, it can inferred that the court of law treats direct eye-witness accounts as
having more value than circumstantial evidence. 23
Another argument in the debate of superiority is that realistically, circumstantial
evidence is more useful and easily available. It has been argued that in a
multitude of cases, there is no eye-witness accounts or direct witness, and
therefore, the courts have to rely on circumstantial evidence to adjudicate a
matter. Justice Ali, in V.C. Shukla v. State24 held that in most cases it will be
difficult to get direct evidence of the agreement, but a conspiracy can be
inferred even from circumstances giving rise to a conclusive or irresistible
inference of an agreement between two or more persons to commit an offence.

III. Superiority of Direct evidence over Circumstantial evidence: An American

Perspective

The United States Law on evidence treats direct evidence and circumstantial
evidence in a similar manner to that of the Indian law. Direct evidence directly
establishes a fact and does not require a juror to make any inferences, whereas,
circumstantial evidence requires the jurors to draw infernces from related facts. 25
The judicial stance regarding direct and circumstantial evidence is that there is
no fundamental difference between them. The United States Supreme Court in
Holland v. United States26 held that that fundamentally there is no intrinsic
difference between direct evidence and circumstantial evidence. However, it is
also maintained in other case laws that direct evidence will take precedence over
circumstantial evidence. Further, in the absence of direct evidence, the court can

21
(2007) 12 SCC 288
22
(2010) 8 SCC 593
23
Mohan Lal Pangasa v. State of UP, (1974) 4 SCC 607
24
MANU/SC/0489/2001
25
M. Bixon, Direct & Circumstantial Evidence: What’s The Difference?, BIXON LAW (Apr. 13, 2019), <
https://bixonlaw.com/direct-circumstantial-evidence-whats-the-difference/> accessed on 21 July 2020
26
1954, 348 U.S. 121
rely on circumstantial evidence provided that it is proved beyond reasonable
doubt and excludes every other reasonable hypothesis.
In Johnson v. State27, the Georgia court reversed a conviction due to the lack of
any direct evidence presented before the court. Further, it held that the question
is whether the circumstantial evidence warranted the conviction, and concluded
that that circumstantial evidence could not prove the same beyond reasonable
doubt. In Carr v. State28, the court held that “to sustain a conviction on
circumstantial evidence only, the State must prove facts that are not only
consistent with the hypothesis of the guilt of the accused, but the facts proved
must exclude every other reasonable hypothesis”. Thus, it can be inferred that in
order to prosecute on the basis of circumstantial evidence, it is necessary that it
is proved beyond any and all hypothesis. If there exists two inferences, one
towards guilt and the other towards innocence, the court cannot adjudicate
merely on the basis of circumstantial evidence. The court propounded a similar
rationale in Kreager v. State29. The court held that “When the circumstantial
evidence supports more than one theory, one consistent with guilt and another
with innocence, it does not exclude every other reasonable hypothesis except
guilt and is not sufficient to prove the defendant’s guilt beyond a reasonable
doubt’…`Circumstantial evidence is worth nothing in a criminal case, if the
circumstances are reasonably consistent with the hypothesis of innocence, as
well as the hypothesis of guilt”.
Interestingly, certain states of the US requires judges in prosecution to decide
based wholly on circumstantial evidence, thus excluding every other reasonable
hypothesis. Therefore, under US law, direct and circumstantial evidence are
treated similarly, however, the former takes precedence over the latter.

IV. Superiority of Direct evidence over Circumstantial evidence: A Canadian

Perspective

In Canada, the law of evidence is mandated both at the federal and the provincial level. There exist
central and state level legislations regulating the law on evidence. The Canada Evidence Act 30 applies
to criminal matters, federal courts, and in civil matters in which the federal government has
jurisdiction. However, it is not very comprehensive in nature, and therefore, often the need to refer
to common law arises.31

The Canadian Supreme Court in R v. Villaroman32 propounded the difference between direct
evidence and circumstantial evidence. The court stated that direct evidence is evidence which, if
believed, proves a fact or resolves a matter in issue. The only inference involved in direct evidence is
that the testimony is true. Whereas, circumstantial evidence, if believed, allows a fact to be inferred.
However, a jury must be cautioned about "jumping to conclusions" or "filling in the blanks" with
circumstantial evidence.33
27
159 Ga. App. 497 (283 S.E.2d 711) (1981),
28
119 Ga. App. 540, 544 (167 SE2d 707) (1969)
29
148 Ga. App. 548 (252 SE2d 1) (1978)
30
2016 SCC 33, [2016] 1 SCR 1000
31
Canada Evidence Act, RSC 1985, c C-5
32
D. Paciocco & L. Stuesser, The Law of Evidence, 2nd ed (Toronto: Irwin Law, 1999).
33
M. Borlack, Circumstantial Evidence Should Not Be Overlooked By Claims Adjusters, MONDAQ, (Sept. 16,
2016) < https://www.mondaq.com/canada/crime/527624/circumstantial-evidence-should-not-be-overlooked-by-
claims-adjusters> accessed on 21 July 2020.
The Ontario Superior Court decision of Johnson v Futerman et al.34 indicates the superior nature of
direct evidence. In the case, the plaintiff failed to present any witness that had direct knowledge of
the material events in the lawsuit. Thus, the claim was summarily dismissed, because the plaintiff
omitted to advance direct evidence to refute that there was no genuine issue requiring a trial.
Similarly, the Supreme Court of Canada in John v. R35 held that “The two forms of evidence are
equally admissible but the superiority of direct evidence is that it contains only one source of error,
namely the unreliability of human testimony, where circumstantial evidence in addition to the
unreliability of human testimony suffers from the difficulty of drawing a correct inference from the
circumstantial evidence.”

However, the court in Villaroman (supra) made certain observations with regards to credibility of
circumstantial evidence. It held that inferences of innocence must be based on proven facts is no
longer accepted. Therefore, the prosecution are not restricted to draw reasonable inferences from
proven facts, however, can draw inferences and then prove them beyond reasonable doubt. Further,
it stated that when assessing circumstantial evidence, the trier of fact should consider other
plausible theories and other reasonable possibilities which are inconsistent with guilt. Other
plausible theories or other reasonable possibilities must be based on logic and experience applied to
the evidence or the absence of evidence, not on speculation.

V. Superiority of Direct evidence over Circumstantial evidence: An English

Perspective

Since various Indian laws came into existence during India was a colony of the British including the
Evidence Act, the English law principles of evidence are quite similar to the Indian ones.

In England, a multitude of legislations deal with evidence law, and there exists a difference in
evidence between criminal and civil matters. For civil matters, the Civil Procedure Rules dictate the
rules regarding admissibility of evidence. On the other hand, in criminal matters, the Criminal
Procedure Rules determine the law concerning relevancy of facts and admissibility of evidence.
Further, other legislations including the Police and Criminal Evidence Act 1984 provide
supplementary and ancillary rules regarding evidence.

Under the British evidence law, there are certain categories of evidence including inter alia oral
evidence, documentary evidence, witness statements, and hearsay evidence. Circumstantial
evidence, on the other hand, refers to evidence which depends for its cogency on the unlikelihood of
coincidence: circumstantial evidence works by cumulatively, in geometrical progression, eliminating
other possibilities.36

On the question of superiority, as in other jurisdictions, the law does not create any distinction
between the two. In civil matters, certain restrictions are placed on hearsay evidence, other than
which, the two are quite similar in the eyes of the legislature. However, so is not the case with the
courts and their interpretation of these two evidences has created certain minor differences. In
McGreevy v DPP37, court held that the question before the jury is that whether the circumstantial
evidence is enough to hold the defendant liable. The court further noted that with regards to
circumstantial evidence, some degree of caution must be exercised. Conviction on the basis of

34
2012 ONSC 4092.
35
[1971] S.C.R 781
36
Circumstantial Evidence, BSB SOLICITORS, (May 5, 2020) <
https://www.bsbsolicitors.co.uk/blog/circumstantial-evidence/> accessed on 21 July 2020
37
[1973] 1 WLR 276
circumstantial evidence should only take place when it is proved beyond all hypothesis and
probabilities.

In Lejzor Teper v. The Queen (British Guiana)38 the court deal with a similar proposition vis-à-vis the
credibility of circumstantial evidence. The court held that “circumstantial evidence must be narrowly
examined, if only because evidence of this kind may be fabricated to cast suspicion on another…It is
also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to
be sure that there are no other co-existing circumstances which would weaken or destroy the
inference”. Thus, it can be inferred that the courts have ruled that in deciding cases on the basis of
circumstantial evidence, they should be extra-cautious in making sure that there exists no other
possibility or any other hypothesis of innocence which can be reasonable drawn.

Finally, the court in The Queen v. Kelly39 held that “the risk of injustice that a circumstantial evidence
direction is designed to confront is that (1) speculation might become a substitute for the drawing of
a sure inference of guilt and (2) the jury will neglect to take account of evidence that, if accepted,
tends to diminish or even to exclude the inference of guilt”. Further, the court also pointed out as
has been done in McGreevy and Teper that “circumstantial evidence does not fall into any special
category that requires a special direction as to the burden and standard of proof. The ultimate
question for the jury is the same whether the evidence is direct or indirect: Has the prosecution
proved upon all the evidence so that the jury is sure that the defendant is guilty? It is the task of the
trial judge to consider how best to assist the jury to reach a true verdict according to the evidence.”
Thus, the fundamental question in British evidence law is whether the relevant fact has been proved
beyond reasonable doubt or not.

VI. Superiority of Direct evidence over Circumstantial evidence: A German

Perspective

German courts will admit the following types of evidence in civil proceedings: visual inspection by
the court, witness testimony, production of documents, examination of the parties, and expert
evidence. Visual inspection by the court refers to the inspection undertaken by the court on its own
initiative or of the parties. Witness testimony is parallel to direct evidence in other jurisdictions, as it
deals with witnesses who are called to testify about facts observed. Section 415-444 of the Code of
Civil Procedure (ZPO) deal with documentary evidence. The courts are also authorized to order
production of original documents. The probative value of documents may be limited and must be
considered separately in each issue. Nevertheless, the Court's power does not extend to include
documents in the possession of third parties. Thus, German courts, as an alternative to an action for
the production of documents, may admit secondary evidence which includes witness testimony and
other circumstantial evidence.40

With regards to criminal proceedings, the German Code of Criminal Procedure (‘CCP’) mandates the
law. According to § 244 sec. 2 of the CCP, the trial court, in particular the presiding judge, is
responsible for deciding what evidence will be presented at the trial. The prosecution as well as the
defense may propose additional pieces of evidence, but the court decides on the relevance and
admissibility of the proposed evidence.

38
[1952] UKPC 15
39
[2015] EWCA Crim 817
40
B. Bastuck & B. Gopfert, Admission and Presentation of Evidence in Germany, (1994) 16 LOY. L.A. INT'L &
COMP. L. REV. 609, < https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1333&context=ilr> accessed
on 21 July 2020
With regards to circumstantial evidence, the German law is quite similar to the others. A basic
difference between inferential or circumstantial evidence on the one hand and testimonial evidence
on the other hand is not recognized, however, the courts can rely on circumstantial evidence in the
absence of direct evidence. Further, because direct evidence also requires the court to draw some
inference, there is not a sharp distinction between the two. However, this should not be confused
with the fact that trial courts can rely on circumstantial or hearsay evidence in most matters. If the
court does so, though better evidence is available, it violates its obligation to clarify the case and the
judgment will invariably be reversed on that ground."41

41
C.C.P. § 244(2)