doctrine of merger


What is Doctrine of Merger under the Copyright Law? How this Doctrine evolved? Is this doctrine applied by the Indian Courts?



this doctrine is not a statutory doctrine but is applied keeping in mind the facts and circumstances of the matter. when superior forum/court passes any order upholding the lower forums decision, then the lower forum's decision merges with the  superior forum. this is the doctrine of merger.

the apex court in a recent judgment has elaborated its applicability and implementation in the  matter of :



Kunhayammed & Ors vs State Of Kerala & Anr on 19 July, 2000

The doctrine of merger :

The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. On more occasions than one this Court had an opportunity of dealing with the doctrine of merger. It would be advisable to trace and set out the judicial opinion of this Court as it has progressed through the times.

In Commissioner of Income-tax, Bombay Vs. M/s Amritlal Bhogilal and Co. AIR 1958 SC 868 this Court held :

There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement.

However, in the facts and circumstances of the case this Court refused to apply the doctrine of merger. There, an order of registration of a firm was made by the Income-tax Officer. The firm was then assessed as a registered firm. The order of assessment of the assessee was subjected to appeal before the Appellate Commissioner. Later on the order passed by the Income-tax Officer in respect of registration of the firm was sought to be revised by the Commissioner of Income-tax. Question arose whether the Commissioner of Income-tax could have exercised the power of revision. This Court held that though the order of assessment made by the ITO was appealed against before the Appellate Commissioner, the order of registration was not appeallable at all and therefore the order granting registration of the firm cannot be said to have been merged in the appellate order of the Appellate Commissioner. While doing so this Court analysed several provisions of the Income-tax Act so as to determine the nature and scope of relevant appellate and revisional powers and held if the subject matter of the two proceedings is not identical, there can be no merger. In State of Madras Vs. Madurai Mills Co.Ltd. AIR 1967 SC 681 this Court held that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. The application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.

In M/s Gojer Brothers Pvt.Ltd. Vs. Shri Ratanlal AIR 1974 SC 1380 this Court made it clear that so far as merger is concerned on principle there is no distinction between an order of reversal or modification or an order of confirmation passed by the appellate authority; in all the three cases the order passed by the lower authority shall merge in the order passed by the appellate authority whatsoever be its decision whether of reversal or modification or only confirmation. Their Lordships referred to an earlier decision of this court in U.J.S. Chopra Vs. State of Bombay AIR 1955 SC 633 wherein it was held.

A judgment pronounced by a High Court in exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties would replace the judgment of the lower court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the courts below.

In S.S. Rathor Vs. State of Madhya Pradesh AIR 1990- SC 10 a larger Bench of this Court (Seven-Judges) having reviewed the available decisions of the Supreme Court on the doctrine of merger, held that the distinction made between courts and tribunals as regards the applicability of doctrine of merger is without any legal justification; where a statutory remedy was provided against an adverse order in a service dispute and that remedy was availed, the limitation for filing a suit challenging the adverse order would commence not from the date of the original adverse order but on the date when the order of the higher authority disposing of the statutory remedy was passed. Support was taken from doctrine of merger by referring to C.I.T. Vs. Amritlal Bhogilal & Co. (supra) and several other decisions of this Court.

The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When a decree or order passed by inferior court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.

(iii) Doctrine of merger is not a doctrine of universal or unlimite application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.



Thanx sir, but you have misunderstood my question, I have asked for the doctrine of merger as applicable under the copyright law and not the doctrine of merger that you have explained.


yes, you are right.

under the copyright, doctrine of merger stipulates that where the idea and its expression is such that it can not be separable, which in fact merges with each other in such a way, which means expression of ideas can be very limited, its called dostrine of merger under copyright and then no protection is provided.

delhi high court has given some insight about teh same in the matter of

Mattel, Inc. And Ors vs Mr. Jayant Agarwalla And Ors on 17 September, 2008.



You got it Mr. Manish. It was the US Supreme Court in Baker v Selden , 101 U.S. 99 (1880) which evolved this doctrine and held that where there are only few or limited ways to express an idea then the expression would merge with the idea and neither the idea or the expression are copyrightable. This doctrine which is also known as  "scenes a faire" doctrine was for the first time applied by Indian Courts (Delhi High Court) in its judgment that you referred above.

Have you dealt with Software Copyright cases Mr. Manish?


The merger doctrine in copyright states that if an idea and the expression of the idea are so tied together that the idea and its expression are one - there is only one conceivable way or a drastically limited number of ways to express and embody the idea in a work - then the expression of the idea is uncopyrightable because ideas may not be copyrighted. The scenes a faire doctrine complements the merger doctrine by providing that certain subject matter - stock images, tried and true story lines, fables and folklore, scenes of nature, common visual and cultural references, all of which fall under the descripttion of scenes that must be done - are not copyrightable because they are part of the public domain and no one can obtain a monopoly on such images by putting them into a fixed and tangible medium of expression. Although the courts have from time to time acknowledged that the standards for originality and creativity required for copyright are intentionally low, and that there are a myriad of ways to express themes and ideas visually, half of the circuits of the United States Courts of Appeals have applied a reductionist, dissection and filtration approach in their consideration of infringement of visual works that is driven by an expanded view of the applicability of the merger and scenes a faire doctrines to visual works. This article will argue that the merger doctrine and scenes a faire doctrine are perfectly well adapted to verbal and literary works, but they have no meaning and no proper application with regard to visual works and should be discarded in the consideration of infringement of visual works.


Doctrine of merger is applicable in the software copyright too. For example, when a work’s “expression is essential to the statement of the idea” embodied therein, the author’s expression of that idea is said to “merge” with the idea itself, and is rendered uncopyrightable. This is so even if the idea, process, or other type of non-copyrightable element expressed is “novel” in the sense that it has never before been expressed and is unique. The idea/expression distinction is used to determine which aspects of computer programs are copyrightable and which are not. The merger doctrine was used to address the question of substantial similarity "in the context of computer program structure” and the doctrine was used as an effective way to eliminate non-protectable expression contained in computer programs. The literal copying of source code/object code is infringement while the copying of non literal elements, like common steps in development software may be excusable applying the principle of doctrine of merger as laid down by the US Supreme Court in the seminal case of Baker v Selden , 101 U.S. 99 (1880). For example, you may have seen that graphical user interface (GUI) of many software are same because there are only limited ways to doing it and hence some judgments suggest that GUI is not copyrightable. However, some judgments suggest that even GUI may be copyright protectable for example peculiar “Look & Feel” of the GUI. It would be pertinent to mention here that Article 10 of the Trade Related Intellectual Property Rights Agreement (TRIPs) expressly provides that computer programs, whether in source code or object code shall be protected as literary works under the Berne Convention, 1971. India is a signatory to the Berne Convention and to give effect to the mandate of Berne convention and Article 10 of the TRIPS, it amended its Copyright Act, 1957 in 1995 bringing within its fold computer programme also as literary work to be protected by Copyright Act. The Section 2 (o) of the Copyright Act, 1957 defines “literary work” to include computer programme as well as computer database. The issue of software copyright with the application of doctrine of merger is not raised before the Indian Courts as it has been before US & UK Courts where litigation pertaining to software infringement is frequent, and therefore the law has started to develop and taking some direction there, but the conflicting issue of protectable elements of software and more so the applicability of the doctrine of merger has not yet come before the Indian Court and remains a grey area of law here and therefore, it would be interesting to see the approach of Indian Courts or Supreme Court of India  as to how it applies doctrine of merger in the software copyright


Dear Mr. Panda,

thnks for the valuable information.





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