TEAM CODE - 01
________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ ’
BEFORE THE HON
BLE DISTRICT COURT OF SAHRANPUR
________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _
CIVIL SUIT FOR COPYRIGHT INFRINGEMENT U /S 62 OF THE COPYRIGHT ACT, 1957.
MR . GOPAL SINGH (PLAINTIFF) V.
MR . MOHAN SHARMA MR . NATWAR MADHUSUDAN PUBLISHING COMPANY PVT. LTD (MPC) REPRESENTED BY MR . MADHUSUDAN AGRAWAL (DEFENDANT)
_____________________________________________________ _________________________ _____________________________________________________ _________________________ MEMORIAL ON BEHALF OF THE PLAINTIFF ________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _
________________ ________ _______________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ TABLE OF CONTENTS
Table of Contents……………………………… Contents………………………………………………………… …………………………………….……………ii ………….……………ii
List of Abbreviations……………………………………………………………………………..iv Index of Authorit ies…………………………………………………………………….…………v Cases Refer red………………………………………………………….………… red………………………………………………………….…………...….…v Books Referred……………………………………………………………………..….....vi Statement of Jurisdiction …………………………………………………………...…………...vii Statement of Facts………………………………… Facts…………………………………………………………… ……………………………….…………...viii …….…………...viii
Statement of Issues……………………………………………………………….………………ix Summary of Arguments …………………………………………………………….……….……x Arguments Advanced…………………………………………………………………..…….……1 A. T HAT P LAINTIFF
HAS
OPYRIGHT C OPYRIGHT
OVER WORK
R ADIANCE
AND REGISTRATION IS NOT
OMPULSORY .…………………………………………………………..………….………1 C OMPULSORY
I.
R EGISTRATION EGISTRATION NOT COMPULSORY TO ACQUIRE COPYRIGHT…………………………..1
II.
THAT GOPAL SINGH HAS COPYRIGHT OVER “R ADIANCE ADIANCE” AS IT IS PUBLISHED WORK UNDER
SECTION 14 (III) READ WITH SECTION 2 (FF) AND SECTION 3 OF THE COPYRIGHT
ACT, 1957………………………………………………………………………… .…..2 B. T HAT
THERE IS COPYRIGHT INFRINGEMENT AND
I RIDESCENCE
IS NOT AN ORIGINAL
WORK …………………………………………………………………………… …………………………………………………………………………… ..………..5
I.
IRIDESCENCE LACKS ORIGINALITY …………………………………………….………5
II.
THE DEFENDANT DOES NOT SATISFY SKILL-LABOUR TEST……………………………6
III.
THE PLAN, ARRANGEMENT AND COMBINATION OF MATERIALS ARE SIMILAR TO THAT OF DEFENDANT’S “IRIDESCENCE”………………………………………………… ..……..7
IV.
TEST OF I NFRINGEME NFRINGEMENT NT IS SATISFIED…………………………………………… .……9 ii
V.
THE IDEA-EXPRESSION DICHOTOMY TEST IS NOT SATISFIED …………………… .……10
VI.
THAT THERE IS SUBSTANTIAL COPYING………………………………………… .…...11
VII.
THE LAY OBSERVER TEST SHOWS INFRINGEMENT OF COPYRIGHT……………….…...13
Prayer ………………………………………………………… …………………………………………………………………………………… ………………………………….xi ……….xi
iii
________________ ________ _______________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ LIST OF ABBREVIATIONS
1. &
:
And
2. ¶¶
:
Pages
3. A.I.R.
:
All India Report
4. All
:
Allahabad
5. ALJ
:
Allahabad Law Journal
6. Anr
:
Another
7. Art.
:
Article
8. Co.
:
Company
9. Corp.
:
Corporation
10. Del
:
Delhi
11. Ed
:
Edition
12. M.P.C
:
Madhusudan Publishing Company Pvt. Ltd.
13. Ors
:
Others
14. Pvt.
:
Private
15. Ltd.
:
Limited
16. PTC
:
Patents & Trade Marks Cases
17. SC
:
Supreme Court
18. SCC
:
Supreme Court Cases
19. v.
:
Versus
iv
________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ INDEX OF AUTHORITIES
CASES CITED:
1. Burlington Home Shopping pvt. Ltd. v. Rajnishchibber, 995 PTC (15) 278…………..…9 2.
Canadian Admiral Corpn. Ltd. v. Rediffusion Inc., (1954) Ex CR 382, 14 FoxPat C 144…………………………… ……………………………………………………… ………………………………………………………….. ………………………………....3
3. Deeks v. Wells AIR 1933 PC……………………………………………………………10 4. Faeh Singh Mehta v. O.P. Singhal, AIR 1990 Raj 8……………………………………...5 5. Francis, Day & Hunter v Bron [1963] Ch D 587……………………………… ...………13 6. Fraser v. Times Television Ltd.(1983)2 ALL ER 101……………...……………...…….10 7. Frederick Emerson v. Chas. Davies, Story’s United States Reports, Vol. 3……………...8 8. Garware Plastics & Polyster Ltd. v. Telelink, AIR 1989 Bo m 331…………………… .....4 9. Glaxo v. Samrat Pharmaceuticals, AIR 1984 Del 265 at p. 270. …………………………1 10. Harms (Incorporated) Ltd. v. Martans Club Ltd., (1927) 1 Ch 526………………………3 11. Jarrold v. Houston, (1857) 3K&J 708……………………………………………….…….9 12. Jayanthilal M. Munothv.M. Durairajan2006 (33) PTC 330 (Mad)……………..………..1 13. Jefferey’s v. Boosey (1854) 4 HCC 815……………………………………………… ....10 14. John Richardson v. Flanders [1993] FSR 497…………………………………………….8 15. John wiley & Sons Inc. v. Prabhat Chander Kumar Jain, 2010 (44) PTC 675 (Del)……..5 16. Kumari Kanaka v. Sundara Rajan, (1972) Ker LR 536……………………… ...…………1 17. Lallubhai v. Laxmi Shankar, AIR 1945 Bom 51: 1946 Bom LR 679…………..…….…..6 18. Lamba Brothers Pvt. Ltd v. Lamba Brothers (1994) 54 DLT 283……………………….1 19. London Library v. CANE, [1959] 3 WLR 929……………………………………………4 20. Macmillan & Co. Ltd. v. K. $ J. Cooper, AIR 1924 PC 75……………………………….6
v
21. Manojah Cine Production v. A. Sundaresan , AIR 1976 Mad 22…………………………1 22. N. T. Raghunathan v. All India Reporter Ltd. Bombay., AIR 1971 Bom 48………..….11 23. Nav 23. Nav Sahitya Prakash v. Anand Kumar, AIR 1981 ALL 200…………………………..….1 24. Neo 24. Neo Sports Broadcast Pvt. Ltd v. New Sanjay Cable Network, 2011 (45) PTC 402 (Del)…………………………… ………………………………………………………… …………………………………………………….……4 ……………………….……4 25. R.G. Anand v. Delux Films, AIR 1978 SC 1613……………… ...…………………..……5 26. Reed Elsevier Properties v. Best Media Associates, 2009 SCC Online Bom 1742 : (2010) 1 Bom CR 839 : (2010) 1 Bom R 543……………………………………………….……3 27. Satsang v. Kiron Chandra Mukho padhyay, AIR 1972 Cal 533……………………….….1 28. Shyam Lal Paharia v Gaya Prasad Gupta , ‘Rasal’s’, AIR 1971 ALL 192……….…….2,5 29. Sulamangalam R. Jyalakshmi v. Meta Musicals, Chennai, 2000 (20) PTC 681…………2 30. Sumit Majumdar v. State of Bengal 2011 SCC Online Cal 4876: 2012 5 CHN 579 : (2012) 2 Cal LT 367………………………………………………………………………5 31. Willian Hill (Football) v. Landbroke (Football), (Football), [1964] 1 All ER 465……………...….11 32. Zahir Ahmed v. Azam Khan (1996) Cr LJ 290…………………………………………..1 33. Zee Telefilms Ltd. v. Sundial Communication Pvt. Ltd 2003 (27) PTC 457 (Bom)(DB)……………………………………………………………………… .…...11,12
BOOKS REFERRED : EVIN GARNETT, GILLIAN DAVIES & GWILYM HARBOTTLE, COPINGER & S KONE JAMES 1. K EVIN
O N COPYRIGHT (FIFTEENTH ED. 2005)……………………………………… ..……10,11 P. NARAYANAN, LAW OF COPYRIGHT A ND I NDUSTRIAL NDUSTRIAL DESIGNS (4th ED. EASTERN LAW 2. P. N HOUSE, 2007)………………………………………………………………………… .......1
vi
________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ STATEMENT OF JURISDICTION
The Plaintiff has the Honor to submit before the Hon’ble District C ourt of Sharanpur, the memorandum for the plain p laintiff tiff under the Civil Jurisdiction of District Court. The Plaintiff invokes jurisdiction of District District court under Section 62 of The Copyright Act, 1957.
THE PRESENT MEMORANDUM SETS FORTH THE FACTS , CONTENTIONS AND ARGUMENTS IN THE PRESENT CASE
vii
________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ STATEMENT OF FACTS
R ADIANCE ADIANCE
“
”
Shyam Singh ‘Madhav’, a renowned writer and poet who published many novels, short stories,
and collection of poems and was also a professor of English at University of Literary Studies in Sahranpur (UP). Mr. Madhav passed away, Contents of Will were disclosed by his lawyer, which bequeathed, inter alia, all the published and unpublished manuscripts upon his son, Mr. Gopal Singh being a successful businessman himself, was not keen upon maintaining the huge collection of literature. Mr. Gopal decided to donate it to local private library Shri Girdhar Library. It was realized by Mr. Gopal that some of his the books in his father’s libr ary were still
unpublished, he decided to assert the copyright in those books and drew up a license agreement for such unpublished works. One such unpublished collection in the library was a small printed and bound book called ‘radiance’, this book had 5 poems. Mr. Girdhar looked after the library as
a librarian, with a helper Mr. Banwari. On 11th December Radiance was found missing. “
IRIDESCENCE
”
Iridescence was a collection of poems by Mohan Sharma ‘Murlidhar’. The launch took place in
Dehradun on 7th March, and the piece noted that Mohan Sharma, may very well be in line for receiving coveted Gyanpeeth Award. Madhusudan Publishing Co. pvt. Ltd. was the same co. that had published Mohan Sharma’s ‘iridescence’. COPYRIGHT INFRINGEMENT AND CIVIL SUIT
“
”
On 15th March, Gopal Singh received a call from Keshav who requested him to visit and when he paid a visit to the library and he was told that the book iridescence appeared to him to be a copy of Radiance, it was too, a collection of 5 poems, even some titles and some lines appeared to be similar. After knowing that he contacted Mr. Govind Shrivastava a friend of his father for a copy of radiance and on receiving it he sent a cease and desist notice to Mr. Mohan and MPC, However it was clearly denied by Mr. Mohan and he responded by saying that it was his original work. Subsequently, Mr. Gopal has filed a civil suit for copyright infringement against Mohan Sharma and his Publishers claiming damages to the t he tune of Rs. 5 lakhs. viii
________________ _______________________ _______________ _______________ ________________ _________________ _______________ _______________ ________________ ________ STATEMENT OF ISSUES
A.
WHETHER
PLAINTIFF HAS
COPYRIGHT OVER WORK R ADIANCE ADIANCE AND IS REGISTRATION COMPULSORY?
B. WHETHER THERE IS COPYRIGHT INFRINGEMENT AND IS IRIDESCENCE AN ORIGINAL WORK ?
ix
________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ SUMMARY OF ARGUMENTS A. THAT PLAINTIFF HAS COPYRIGHT
OVER WORK
R ADIANCE ADIANCE AND REGISTRATION IS NOT
COMPULSORY.
It is humbly submitted that though the book Radiance was an unpublished unpu blished work initially but after passing the possession of o f the book to Shri Girdhar Library through a license agreement the work wo rk of the plaintiff automatically got communicated to the public as people had access to the library and could read that book and thus the work by itself got published through the license agreement under S.14 (a) (iii) r/w S. 2 (ff) and S.3 of the Copyright Act. A work which is communicated to the public is known to have copyright as soon as accessed by the public. Registration of work is not compulsory for getting copyright. A work is protected by copyright as soon as it is created and thus plaintiffs book ‘Radiance’ had the co pyright which is infringed by the defendant. B. THAT
THERE IS COPYRIGHT INFRINGEMENT AND
IRIDESCENCE
IS NOT AN ORIGINAL
WORK
It is humbly submitted that the defendant has violated the copyright of the plaintiff by copying his work. On comparing the poems of the plaintiff and that of the defendant it is prima facie visible that the defendant has substantially copied the work of the plaintiff. Moreover, even the plan, arrangement and combinati co mbination on of o f the concepts co ncepts in both the poems are the t he same. The various tests of infringement and originality also prove that the defendant has copied the plaintiffs work and ‘Iridescence’ is not the original work of the defendant rather a modified copy of ‘Radiance’ which is plaintiff book. The expressions of the plaintiff’s books are also as it is copied by the
defendant and has put up in his book. book . This is a prima facie case of infringement on the part of the defendant.
x
________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ ARGUMENTS ADVANCE
A. THAT PLAINTIFF
HAS
COPYRIGHT
OVER WORK
R ADIANCE ADIANCE
AND REGISTRATION IS NOT
COMPULSORY.
1. The plaintiff submits that registration over the Copyright work is not a prerequisite [I]and the plaintiff has acquired Copyright as he has published the work. [II] I.
R EGISTRATION EGISTRATION NOT COMPULSORY TO ACQUIRE COPYRIGHT.
2. Copyright is a right recognized to subsist on its own. Registration is not a precondition for bringing an action against infringement infringement of copyright.1 Registration is not necessary to Claim Prakash v. Anand Kumar ,3 it was held that registration is only Civil remedy. 2 In Nav Sahitya Prakash
optional, registration serves the purpose of being a prima facie proof of possession of copyright by the person. 3. In Kumari Kanaka v. Sundara Rajan ,4 the court held that registration of copy right was not required either for acquiring copyright or for its enforcement. Registration of copyright does not confer any rights. Copyright existed whether registration was done or not, and the registration was merely a piece of evidence as to when a certain author started claiming copyright in the artistic or other work.5 4. In Satsang v. Kiron Chandra Mukhopadhyay ,6 the Calcutta High Court held that there was no section in the Copyright Act, 1957 to the effect that the author could have no right or remedy unless his work was registered. The Court further stated that a person had an inherent copyright
1
P. N P. N ARAYANAN , LAW OF COPYRIGHT A ND I NDUSTRIAL DESIGNS 24-04 (4th ED. EASTERN LAW HOUSE, 2007)
2
Manojah Manojah Cine Production Production v. A. Sundaresan, Sundaresan, AIR 1976 Mad 22; NavSahitya NavSahitya Prakash v. Anand Kumar AIR 1981 Brothers Pvt. Ltd v. Lamba Lamba Brothers (1994) 54 DLT 283; Zahir Ahmed v. Azam Khan (1996) Cr ALL 200; Lamba Brothers Jayanthilal M. Munothv Munothv.. v. Durairajan Durairajan 2006 (33) PTC 330 (Mad); LJ 290; Jayanthilal 3
AIR 1981 ALL 200.
4
Kumari Kanaka Kanaka v. SundaraRajan SundaraRajan,, (1972) Ker LR 536.
5
Glaxo v. Samrat Pharmaceuticals , AIR 1984 Del 265 at p. 270.
6
Satsang v. Kiron Chandra Mukhopadhyay, AIR 1972 Cal 533
1
in a general composition without the necessity of its registration. Thus in the present case the Copyright can subsist without registration. II.
THAT GOPAL SINGH HAS COPYRIGHT OVER “R ADIANCE ADIANCE” AS IT IS PUBLISHED WORK UNDER
SECTION 14 (III) READ WITH SECTION 2 (FF) AND SECTION 3 OF THE COPYRIGHT
ACT, 1957. 5. The words “literary work”7 covers work which is expressed in print or writing, irrespective of the question whether the quality or style is high.8 In University of London Press v. Univ. Tutorial co pying is prima facie worth copyrightable. Thus it can Press, 9 it was held that whatever is worth copying be inferred that Poem is a literary work under Section 2(o) of the Copyright Act, 1957. The expression “literary work” means not only such work which deals with any particular aspect of
literature in prose and poetry but also includes work which is literature i.e. anything in writing which could be said to come within the ambit of literary work.10 6. Section 14 (iii) of the Copyright Act, 1957 which confers exclusive right upon the author to “perform the work in public, or communicate it to public.”11 Communication to the public as
defined in section 2(ff) of the Copyright Act, 1957 as “making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.”12
7. The legislators have defined the work “Publication” in Section 3 of Copyright Act, 1957 as making a work available to the public by communicating the work to public.13 The meaning of “public” can be gathered from looking at the nature of the audience. The court tends to give as
7
V. K. V. K. A A HUJA, LAW OF COPYRIGHT, P.51 (2 ND ED. 2015).
8
University of London Press Ltd. v. University Tutorial Press Ltd., (1916) 2 ChD 601.
9
(1916) 2 Ch 609.
10
ShyamLalPaharia v. Gaya Prasad Gupta ‘Rasal’, AIR 1971 All 192. See also Sulamangalam R. Jyalakshmi v. Meta Musicals, Musicals, Chennai, Chennai, 2000 (20) PTC 681 at p. 694. 11
Section 14 (a) of Copyright Act, 1957.
12
Section 2(ff) of Copyright Act, 1957.
13
Section 3 of Copyright Act, 1957.
2
wide a meaning to ‘public’ as reasonably possible as a means of ensuring that the copyright owner is compensated for unlicensed use of o f his copyright.14 (incorporated) Ltd. v. Martans Club Ltd ., 8. In Harms (incorporated) .,15 the plaintiffs were the owner of the
copyright in a musical called “Tip Toes”. The defendants were the proprietors of a club for dining and dancing, which had a membership of 1800. At the club of the defendants, the musical play was performed by their orchestral band before an audience of about 150 members o f the club was a performance of the musical play in public. The Court considered the nature of the right of the author who was protected under the Copyright Act. The court stated that the purpose was to protect the author from any injury or loss of profit by reasons of any representation of his composition in public which would have ordinarily fetched him financial gain. The performance was held to be at a public place for a profit. profit. It considered the performance p erformance as in public.16 9. The court distinguished such an audience from a private or domestic audience which would consist of members of the family and members of the household. The court also considered the place where the performance took place and a nd held that the club, which accepted members from the public and guests, cannot be considered as a place which was equivalent to an enlarged family. 17 Properties v. Best Media Associates Associates 18 the court interpreted that availability of 10. In Reed Elsevier Properties
publications with a library stand on an entirely different footing from an individual or a few individuals having copies thereof for their private use. The availability of publications with a library prima facie at least indicates their availability to the public in general. The same would also indicate that the same were read by the members of the public. Normally at least at the interlocutory stage it would be reasonable to presume that the library is subscribed to the publication. The court added that while visualizing cases where the mere availability of a publication in a library can necessarily indicate that it is read by people having access to the library. 14
See Canadian Admiral Corpn. Ltd. v. Rediffusion Inc., (1954) Ex CR 382, 14 FoxPat C 144.
15
Harms (Incorporated (Incorporated)) Ltd. v. Martans Martans Club Ltd., Ltd., (1927) 1 Ch 526.
16
Id.
17
Id.
18
2009 SCC Online Bom 1742 : (2010) 1 Bom CR 839 : (2010) 1 Bom R 543
3
11. The Court of Appeals in London Library v. CANE (valuation office) 19 held, that the library was not instituted for the purposes of literature exclusively, as the whole scheme was for the supply of books of members for such use as members chose to make of them, whether for their own instruction or enjoyment or the passing on of o f the fruits of their study to the public pu blic at large. 12. In Garware Plastics & Polyster Ltd. v. Telelink 20 the question raised was whether showing a video film over a cable T.V. network amounted to infringement of the right to communicate to public. The court held that the video may be watched by a large section of the public in the privacy of o f their homes but this does not make it a private communication co mmunication so as to take it out of the definition of “ broadcast” under section 2(dd). The viewers of the cable TV network are a
portion of public pu blic and they t hey cannot be considered domestic d omestic viewers of the t he owner o f copyright and they in fact pay the cabel T.V. network company for watching the film. Showing films over cable TV without proper authorization amounts to infringing of copyright. 13. In Neo Sports Broadcast Broadcast Pvt. Ltd v. New Sanjay Cable Network Network 21 the defendant broadcasted live test matches on plaintiffs channel having copyright over broadcasting of live test matches between India and other countries pursuant to an agreement entered into between the plaintiff and BCCI the court this leads to authorization public performance as the hotel had not taken any permission or o r license from the t he plaintiff channel. Therefore placing a television set and making available the sports channel for viewing by its customers/clientele infringes the copyright as it amounts to communications o the public.22 14. In the present case the book ‘Radiance’ written by Shyam Singh Madhav was given to a library through a license by Gopal Singh, his son after his death.23 It is therefore natural that a library is likely to be frequented by people of different age group and of all walks of life with the
19
[1959] 3 WLR 929
20
AIR 1989 Bom 331
21
2011 (45) PTC 402 (Del)
22
Section 2(ff) of Copyright Act, 1957.
23
Factsheet para 4. 4
intention to gain access to books to further their knowledge. know ledge.24 It is a place where books, newspapers, etc. are stored so that the persons perso ns visiting it may read and borrow them.25 Thus it can be clinched that when Gopal Singh submitted the work “Radiance” to Library than he
published the work as per Section 14(iii) when read with Section 2(ff) and Section 3 of Copyright Act, 1957 and thus had Copyright over the work “Radiance” although the work not registered. B. THAT THERE IS COPYRIGHT INFRINGEMENT AND IRIDESCENCE IS NOT AN ORIGINAL WORK .
15. Where a person has Copyright in a literary work, and any other person produces or reproduces the work or any substantial part thereof in any material form, he is committing an infringement of copyright.26It may be possible that the bundle of the rights of the owner may include rights of the licencee, but the infringement of the rights has to be measured from the rights of the owner and not from the limited rights of the licencee. 27 The work Iridescence lacked Originality [I] and does not satisfy the skill-labour test. [II] The Plan, Arrangement and Combination of Materials in Iridescence are similar to Radiance.[III] The work Iridescence satisfies the Test of Infringement [IV] and Lay Observer Test.[V] The Expression in the work Iridescence are similar to Radiance
o f work.[VII] [VI] and additionally there is substantial Copying of I. IRIDESCENCE LACKS ORIGINALITY. 16. In Shyam Lal Paharia v Gaya Prasad Gupta , ‘Rasal’s’ 28, the court held that when a person copies a Copyrighted work than the infringement copy lacks originality as he would be saving himself from from the trouble
and labour requisite requisite for for collecting that information information by adopting
another’s work with colorable variations.
v. Delux Films29 , where the court held that “It is not necessary 17. It was held in case of R. G. Anand v.
that the alleged infringement should be an exact or verbatim copy of the original but its
24
Factsheet para 5.
25
Sumit Majumdar v. State of Bengal 2011 SCC Online Cal 4876: 2012 5 CHN 579 : (2012) 2 Cal LT 367
26
Faeh Singh Singh Mehta Mehta v. O.P.Singh O.P.Singhal, al, AIR 1990 Raj 8
27
John wiley& wiley& Sons Inc. Inc. v. Prabhat Prabhat Chander Chander Kumar Jain , 2010 (44) PTC 675 (Del) at p. 698.
28
AIR 1971 ALL 192
29
AIR 1978 SC 1613 5
resemblances with the original in some measure is sufficient to indicate that it is a copy. The copyright violation in an alleged infringing work may be detected by making careful examination of it to see whether any of the deviations and mistakes, which licence permits in the original have been reproduced into the alleged infringing copy.30 II.
THE DEFENDANT DOES NOT SATISFY SKILL-LABOUR TEST.
18. In Gopal Das v. Jaganath Prasad, 31the plaintiff were the printers and publishers of the boo k. The book titled “Sachitra “Sach itra Bara Kok Shastra” was printed pr inted for the t he first first time in 1928 and had run into four editions since. The defendants printed and published another book title “Asli Sachitra Kok Shastra” in 1930. The plaintiff’s case was that the book published by the defendant was a
colourable imitation of their book and an infringement of plaintiff’s copyright. It was held by the court that the plaintiffs compiled their book with considerable labour from various sources and digested and arranged the matter taken by them from other authors. The defendant instead of taking pains of searching into all the common sources and obtaining his subject matter from them, obtained the subject matter from the plaintiff’s book and availed himself of the labour of the plaintiffs and adopted their arrangement and subject-matter and, thus such a use of plaintiff’s book could not be regarded as legitimate. Company v. D. B. Modak 32case followed the supreme court 19. The Supreme Court in Eastern Book Company
of Canada in the matter of CCh Canadian Ltd. v. Law Society of Upper Canada 33, held that original work should be product of an exercise of skill and judgment and it is a workable yet fair standard. A creative standard implies that something must be novel or non-obvious. The court held that no one is entitled to avail himself of the previous labour of another for the purpose of conveying to the public the same information, although he may append additional information to that already published. 20. It was held in Macmillan & Co. Ltd. v. K. & J. Cooper, Cooper, 34that a product of the labor, skill and capital of one man must not be appropriated by another, not the elements, the raw materials, 30
Lallubhai Lallubhai v. Laxmishankar Laxmishankar,, AIR 1945 Bom 51: 1946 Bom LR 679
31
AIR 1938 All 266; Corelli v. Gray, (1913) 29 TLR 570 : 30 TLR 116
32
(2008) 1 SCC 1
33
2004 (1) SCR 339 (Canada)
34
Macmillan Macmillan & Co. Ltd. Ltd. v. K. $ J. Cooper, Cooper, AIR 1924 PC 75
6
upon which the labor and skill and capital of the first had been expanded. To secure copyright for the product, it was necessary that the labor, skill and capital should have been expended sufficiently to impart to the product some quality or character which the raw material did not possess, and which differentiated d ifferentiated the product produ ct from the raw material. material. Thus T hus in the present case the defendant has not used his skill and labour to make the poem and thus there is clear infringement of Copyright which the plain p laintiff tiff holds in work radiance. III.
THE PLAN, ARRANGEMENT AND COMBINATION OF MATERIALS ARE SIMILAR TO THAT OF DEFENDANT’S “IRIDESCENCE”.
21. In Macmillian Macmillian and Co. v. K.J. Cooper 35, the court was of the view that the question is not whether the materials which are used are entirely new and have never been used before. The true question is whether the same plan, arrangement and combination of materials have been used before the same or any other purpose, if they have not, then the plaintiff is entitled to a copyright, although he may have gathered hints for his plan and arrangement from existing and known sources. 22. In the present case the plan, arrangement and combination of all the poems in ‘Radiance’ and ‘Iridescence’ are the same. In the instant case a brief look on both the poems shows the exact
copying of the same plan arrangement and combination by Mohan from Madhav’s poems for instance, in poem 1 i.e. ‘I choose the mountains’ both the authors referred to same combination and arrangement of words which are ‘mountains’ and ‘low lands’ to bring into writing their
thoughts regarding hardships and denial towards comfortable and easy life with no feeling to ‘conquer’.36 In poem 2 both Madhav and Mohan used phrases which imply the same meaning such as ‘I beseech you show me the knot in your heart’ and ‘god give me eyes that I might see
and please help me to understand’ and both the two phrases talk about the pain or ache in the heart. 23. The poet of the “Colossal” has blatantly copied the work of Poet of ‘Something Big’. Even the expressions of the poem were found to be similar at various instances of the poem.37 Poem 3 of Mohan Sharma i.e. Gratitude the poet has as it is copied the arrangement and combination of expression from the poem ‘Beautiful’ in the first two lines of the poem, the lines are ‘beautiful is 35
AIR 1924 PC 75.
36
Annexure II & III of Factsheet.
37
Id. 7
the thank you, wrapped with gratitude’. In Poem 4 Madhav personified ‘a fallen tree’ with a caring person and on whom somebody is dependent and the grief of going away from that person and the same expression Mohan gave in his poem ‘Mother’ where in a caring mother has gone
away from her grieving child describing it in the same manner as Madhav did like who will do this for me? Who will be there for me?38 24. Poem 5’s plan and arrangement is the same in both the poems, it is a prayer to God for providing strength with same combination of words chosen by the two authors. It cannot be considered a mere coincidence when 5 poems of the book ‘Iridescence’ are found to have the same plan, arrangement and combinations.39 It prima facie shows that the poems of ‘Radiance’ has been copied by Madhav and thus is liable for infringement. 25. All these similarities in the poems comply with the observation below made by Justice Story in respect of original plan, arrangement or compilation of the material “First, that any new and original plan, arrangement or compilation of material will entitle the author to copyright therein whether the materials themselves be old or new. Second, that whosoever by his own skill, labor and work may have a copyright therein, unless it be directly copied or new imitated from another's work. Third, that to constitute piracy of a copyright it must be shown that the original has been either substantially copied or to be so imitated as to be a mere evasion of the copyright.”40 26. Inference of copying may be drawn from the surrounding circumstances and from the nature of similarities themselves. 41Similarity in the language and writing style also provides evidence of copying.42 In copyright infringement cases, the direct evidence of copying is generally difficult to furnish. Evidence of copying has to be deduced from surrounding circumstances. Evidence of copying, for instance, can be found when the defendant’s work contains the same errors, mistakes as those present in the plaintiff’s work. Similarly in the language and writing style also
38
Id.
39
Id.
40
Frederick Emerson Emerson v. Chas. Davies, Davies, Story’s United States Reports, Vol. 3, p. 768.
41
John Richardson Richardson v. Flanders Flanders [1993] FSR 497 at p. 543
42
61 (1995) DLT 6
8
provides evidence of copying.43 Even the errors in poems of Madhav are same in the poems of Madhav, and that can be seen because Mr. Govind, friend of Shyam Singh ‘Madhav’ corrected
his original copy and commented on the errors. IV.
TEST OF I NFRINGEME NFRINGEMENT NT IS SATISFIED.
27. In case of Willian Hill (Football) v. Land broke (Football) 44 , it was held that the test of infringement is not how much is taken but it depends on the worth of work taken. In Burlington Home Shopping Pvt. Ltd. v. Rajnish chibber 45 where Plaintiff alleged that the defendant was at
one point of time an employee of the plaintiff and while the nature of his duties had nothing to do with the compilation and development of the, the defendant established database, on severing relationship with the plaintiff, the defendant established himself as a competitor by entering into a mail order shopping business. It was further contended that the defendant had managed to get a copy of the database, an otherwise guarded secret of the plaintiff and has started making use of the same for the purpose of establishing relationship with the p laintiffs laintiffs customers. 28. Subsequently, the plaintiff contended that his database is an original literary work wherein the plaintiff has the copyright and the defendant has infringed the same by his illegal act of o f copying the work. The striking similarities noticed in the two databases could not have existed but for the fact of the defendant having made use of plaintiff's database. A strong prima facie case of infringement by the defendant of the plaintiff's copyright has been made out to the satisfaction of the court. There exists striking similarities in poem 3, 4 and 5 in the instant case and thus according to the above referred case law the defendant has clearly violated the copyright of the plaintiff. 29. The Court made reference to the case of Jarrold v. Houston46 , it was held that whether there has been an a n animus furandi , i.e. intent to commit fraud on the part of the defendant for the purpose of saving labour was an important consideration in arriving at the conclusion of occurrence of any infringement and held that although there might be no direct evidence but similarity in the work of defendant and other evidences like defendant being employee of plaintiff was enough to 43
1995 (35) DRJ 335
44
[1964] 1 All ER 465
45
995 PTC (15) 278
46
(1857) 3K&J 708
9
prove the case. The maxim of animus furandi is absolutely applicable in this case as it can be explicitly seen in Poem1, 3, 4 and 5 that the defendant had put no labour or effort in forming his poem and rather copied the poems from Radiance. 30. In order to succeed in a copyright action a plaintiff must prove that the defendant has directly or indirectly made an unlawful use of the plaintiff’s copyright work. It is not necessary to show that the defendant has copied from the plaintiff’s work. It is sufficient for the plaintiff to establish some chain of causation linking the plaintiff’s copyright work with defendants’ alleged
infringing copy.47 V.
THE IDEA-EXPRESSION DICHOTOMY TEST IS NOT SATISFIED .
31. The fundamental rule of copyright law is that there is no copyright in idea but the expression of an idea is protected.48 Article 9(2) of TRIPS states that, “Copyright protection shall extend to expressions and not to ideas, procedures and methods of operation or mathematical concepts as such.” Article 2 of WCT, 1996 use the same language and is consistent co nsistent with TRIPS.
32. There can be no copyright in an idea, subject matter, themes and plots or historical or legendry fact and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. 49Here in this case there is a clear cut copying of expression in the poems of defendant as observed through the tests of infringement. 33. In Fraser v. Times Television Ltd.,
50
it was observed by the court that “To accept that to be
capable of protection the idea must be sufficiently developed, so that it would be seen to be a concept which has at least some attentiveness for a television programme and which is capable of being realized as an actuality. But the judges did not think this requirement necessitates in every case a full synopsis. In some cases the nature of the idea may require extensive development of this kind in order to meet the criteria. But in others the criteria may be met by a short unelaborated statement of an idea.
47
EVIN G ARNETT ARBOTTLE , COPINGER & SKONE JAMES O N COPYRIGHT (FIFTEENTH K , G ILLIAN D AVIES & GWILYM H ED. 2005). 48
Jefferey’s v. Boosey (1854) 4 HCC 815 ; Deeks v. Wells AIR 1933 PC; Black’s Law Dictionary 8 th Edn., p. 761.
49
Id . at 36
50
Fraser v. Times Television Ltd. (1983)2 ALL ER 101
10
34. In Zee Telefilms Ltd. v. Sundial Communication Communication Pvt. Ltd.,
51
the Bombay High Court observed
that the law did not recognize property rights in abstract ideas, nor is an idea protected by a copyright and it became copyrighted work only when the idea was given embodiment in a tangible form. But where the plaintiff had developed an idea into various concept notes, character sketches, detailed plot of episodes, they would become subject matter of copyright protection. VI.
THAT THERE IS SUBSTANTIAL COPYING
35. Copyright in a work is infringed infringed by taking t aking a substantial part of it.52 The word substantial does not denote the hulk or the length of the extracts.53 The quantity alone is not test. It is not only the quantity but value that is always looked to. It is useless to refer to any particular cases as to quantity.54 36. In Landbroke Landbroke Ltd. v. William Hill Hill 55 , it was held that substantiality can be considered to the extent to which plaintiff’s and defendant’s work are competing with each other. The volume of the
material borrowed by the defendant is important in deciding whether there has been substantial copying.56Volume here does not mean only the quantity (a short passage may be be of vital significance in a work) which is borrowed by the defendant.57 In the present case poem 3 only talks about values like thankfulness and gratitude towards people in need and the defendant has
51
Zee Telefilms Ltd. v. Sundial Sundial Communication Communication Pvt. Ltd 2003 (27) PTC 457 (Bom)(DB); N.T. Raghunathan Raghunathan v. All India Reporter Reporter Ltd., Ltd., Bombay Bombay , AIR 1971 Bom 48 52
In Dorsey v. Old Surety Life Ins. Co., 10 Cir 1938 : 98 F 2d 872 : 119 ALR 1250, Phillips, J. observed that right secured by a copyright is the right to that arrangement of word which the author has selected to express his ideas...to constitute infringement, a showing of appropriation in the exact form of substantiality so of the copyright material required. 53
Johnslone Johnslone v. Bernard Bernard Jones Publication Publication Ltd. Ltd. Beauehamp Beauehamp (1938) 1 Ch 599
54
Bramwell Bramwell v. Halcomb (1836) 3 MY and Crl 737-38; Ladbroke Football ltd. v. William Hill Football ltd, (1964) 1 WLR 273 at p. 276 55
(1964) 1 WLR 273
56
Ibid
57
ARBOTTLE , COPINGER & SKONE JAMES O N COPYRIGHT (FIFTEENTH K EVIN G ARNETT , G ILLIAN D AVIES & GWILYM H
ED. 2005).
11
clearly been copied this expression by copying the line ‘beautiful is the thank you wrapped with gratitude’ from the poem of o f the plaintiff.58
Ltd. v. Sundial Communication Communication Pvt. Ltd. 59the Bombay High Court observed that 37. In Zee Telefilms Ltd.
in order to find out similarity in two concepts what was to be seen was the substance, the foundation, the kernel and the test as to whether the reproduction was substantial and was to see if the rest could stand without it. If it could not, then even if many dissimilarity dissimilarity existed in the rest it would none the less be a substantial reproduction liable to be restrain. Poem no 5 of Annexure II crystal clearly shows similarity in the concepts when compared to poem 5 of Annexure III as both are praying to god for providing powers by giving examples of powers that vest in few exclusive people.60 38. In Billhofer Maschinen fabric Gmbh v. T.H. Dixon &Co.. &Co.. Ltd. 61, it was held that in considering substantial copying the question came that some parts were copied and other were not, the question whether they amounted to substantial parts, depended upon whether they were sufficiently important and that was particularly true when they amounted only to certain specific numbers, positions and dimensions. Poem no 4 in Annexures II copied certain parts of the poem no. 4 of Annexure III. The defendant in his poem gives same position and significance to a mother as given by plaintiff to fallen tree as a nurturing and caring creature who went away.62 39. Copying in order to constitute reproduction within the meaning of the act, there must be (a) a sufficient degree of objective similarity between the two works and (b) some causal connection between the plaintiffs and defendants work. It is quite irrelevant irrelevant to enquire whether the defendant was or was not consciously aware of such causal connection. Where there is a substantial degree of objective similarity, this of itself will afford prima facie evidence to show that there is a causal connection between the plaintiffs’ and defendant’s work; at least, it is a circumstances from which the inference may be drawn. 63 In this case Poem no. 1 and 2 of the
58
Annexure II & III of Factsheet.
59
2003 (27) PTC 457 (Bom) (DB)
60
Annexure II & III of Factsheet.
61
(1990) FSR 105
62
Annexure II & III of Factsheet.
63
Id. 12
defendant has sufficient degree of similarity to the Poem 1 and 2 of plaintiff because both the poem are casually connected co nnected as both of them t hem talk about hardships and a nd denial of comfortable co mfortable life in poem 1 and to let go the pain or ache in the heart in poem no. 2 and thus the defendant without any effort has only reproduced the t he work originally created by b y the plaintiff. plaintiff. 40. The fact that the defendant denies that he consciously copied affords some evidence to rebut the inference of causal connection arising from the objective similarity, but is in no way conclusive. If the problem is approached as above, it becomes a simple question of fact to decide whether the degree of objective similarity proved is sufficient , in all the circumstances of the particular case, to warrant the inference that there is a causal connection between the plaintiffs’ and the
defendants’ work.64 VII.
THE LAY OBSERVER TEST SHOWS INFRINGEMENT OF COPYRIGHT.
41. The court in Associated Associated Electronic Electronic & Electrical Industries v. Sharp Tools 65 held that the is the visual appearance of the object and drawing, design or artistic work in question, and by applying testviz ‘lay observer test’ whether to persons who are not experts in relation to objects of that
description, the object appears to be a reproduction, there is no infringement of the artistic copyright of the work. 42. The Court in R.G. Anand v. M/s Delux Films 66 held that “One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.” In the
present case the similarity being the works can clearly be seen by mere reading of o f both the books once by any person as the book Iridescence is the copy of the book Radiance and thus prima facie
highlights
the
infringement
of
64
copyright
of
the
plaintiff. 67
L.B.(Plastics) v. Swish Swish WILLMER, LJ in Francis, Day & Hunter v Bron [1963] Ch D 587 at p. 614, quoted in L.B.(Plastics) Products [1979] RPC 551 at p.571. In this case the allegation was that the defendant has reproduced in his musical work of “In a little Spanish Town” eight bars of musical work of the plaintiffs entitled “why”. 65
AIR 1991 Kant 406.
66
AIR 1978 SC 1613
67
Annexure II & III of Factsheet. 13
________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ PRAYER
Wherefore it is prayed, in light of o f the issues raised, arguments advanced, and authorities aut horities cited the counsel for the Plaintiff respectfully requests the District Court of Saharanpur (U.P) to: To Hold: 1. Copyright Infringement has taken place. 2. “Iridescence” is a copy of “Radiance” 3. Mr. Mohan and MPC are guilty of copying the original work of the book. To Pass: 1. To pass an order for damages of Rs5 Lakh.
An d Pass Pass any other Or der, der, D ir ection, or Reli Reli ef that i t may dee deem f it in the Bes Best I nterests nterests of of Ju sti ce, ce, F air ness ness, Equ it y and Good Conscience Conscience.. F or Th is Act Act of Ki ndnes ndness, the Plain Plain tif f Shall Duty Boun d For ever ver Pr ay. ay.
Sd/(Counsel for the for the Plaintiff) Plaintiff)
xi
