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 DEFENDANT ________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _
________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ TABLE OF CONTENTS
Table of Contents…………………………………………………………………….…………… Contents…………………………………………………………………….……………ii ii List of Abbreviations……………………………………………………………………………..iv Abbreviations……………………………………………………………………………..iv Index of Authorities…………………………………………………………………….…………v Authorities…………………………………………………………………….…………v Cases Referred………………………………………………………….…………………v Referred………………………………………………………….…………………v Books Referred…………………………………………………………………………...vi Referred…………………………………………………………………………...vi Statement of Jurisdiction …………………………………………………………...…………...vii Statement of Facts………………………………………………………………….……………..ix Facts………………………………………………………………….……………..ix Statement of Issues……………………………………………………………….……………….x Issues……………………………………………………………….……………….x Summary of Arguments …………………………………………………………….……………xi Arguments Advanced…………………………………………………………………..………….1 Advanced…………………………………………………………………..………….1 A. THE PLAINTIFF DOES NOT HOLD R EGISTRATION EGISTRATION IN WORK “R ADIANCE ADIANCE ” AND THUS CANNOT CLAIM CIVIL REMEDY …………………………………………………………..………….1 B. THAT THERE IS NO INFRINGEMENT IN THE WORK “IRIDESCENCE ”……………….…………1 I.
GOPAL SINGH DOES NOT HAVE COPYRIGHT IN WORK “R ADIANCE ADIANCE ”………………...……...1
a. Gopal Singh does not have Co pyright while making License…………………………….2 License…………………………….2 b. No Copyright in Titles of Poem “Radiance”…………………...…………………………2 “Radiance”…………………...…………………………2 c. Arguendo the Defendant submits that Plaintiff’s work is not Published Work…………...2 Work…………...2 II. THAT THERE IS NO COPYRIGHT INFRINGEMENT AND
IRIDESCENCE IS ORIGINAL
WORK ……………………………..…………………………………………...….... ……………………………..…………………………………………...…....……...3 ……...3
a. Iridescence does not lack Originality……………………… Originality………………………..………………..……………4 b. The Defendant placates the Labour - Skill Test……………………………...……………6 Test……………………………...……………6 c. The Defendant satisfies satisfies Idea-Expression Dichoto my requirement……………………... requirement…………………….....7 ..7 d. There is no Substantial Copying of Plaintiffs work ……………………………………….8 ……………………………………….8 ii
III. ARGUENDO IF THE COURT BELIEVES THAT THERE WAS COPYRIGHT INFRINGEMENT , THE DEFENDANT SUBMITS THAT THE “IRIDESCENCE ” HAS BEEN TAKEN FROM COMMON SOURCE………………………..………………..……………… ………………………..………………..……………………..………………….10 ……..………………….10 Prayer ……………………………………………………… ……………………………………………………………………………………….……xi ……………………………….……xiii
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
CASE LAWS:
1. Baker v. Selden, 101 US 99 (1879) : 25 L.Ed 841…………………...………………. 841…………………...……………….8 8 2. Campbell v. Acuff Ross Music Inc, 510 U.S. 569 (1994)………………...…………..7 (1994)………………...…………..7 3. Corelli v. Gray, (1913) 29 TLR 570 : 30 TLR 116………………………...…………9 116………………………...…………9 4.
Deeks v. Wells AIR 1933 PC………………………………………………...………7 PC………………………………………………...………7
5. Dhiraj Dharamdas Dewani v. Sonal Info Systems Pvt. Ltd., 2012 (52) PTC 675 (Del) at p. 698………………… 698…………………………………………… ……………………………………………...……………. …………………...……………...1 ..1 6. Donoghue v. Allied Newspaper Ltd., (1937) 3 ChD 503………………..……………7 503………………..……………7 7. Du Boulay v. Du Boulay, [1869] LR 2 PC 430……………………………..………...2 430……………………………..………...2 8. Eastern Book Co. v. D.B. Modak, (2008) 1 SCC 1………………………..……...…..6 1………………………..……...…..6 9. Emergent Genetics India Pvt. Ltd. v. Shailendra Shivam, 2011 (47) PTC 494 (Del)…………………………………………… (Del)……………………………………………………………………..…………… ………………………..…………….6 .6 10. FE Engineering & Consultancy Pvt. Ltd. v. LG cable Ltd., 2002(25)PTC 577 (Del)………………………………………………………………………..………… (Del)………………………………………………………………………..………….8 .8 11. Feists Publication v. Rural Telephone Service, 499 U.S. 340 (1991)…………..…….5 (1991)…………..…….5 12. Franz Hanfstaengal v. Baines [1895] AC 20; ILR (1895) AC 23………………..…...9 23………………..…...9 13. Garware Plastics v. Teleling, AIR 1989 Bom 331 at p. 336……………...………..….3 336……………...………..….3 14. Gopal Das v. Jagannath, AIR 1938 ALL 266…………………..…………..………...9 266…………………..…………..………...9 15. Govindan v. Gopalkrishna, AIR 1955 Mad 391: (1955) 1 Mad LJ 401………..……..5 401………..……..5 16. Harnam Pictures N. V. v. Osborne, (1967) 1 WLR 723……………………..………..8 723……………………..………..8 17. Hollinrake v. Truswell, (1984) 3 Ch 420………………………………………..…….8 420………………………………………..…….8 18. India Pvt. Ltd. v. Piyush Agarwal, 2014 (58) PTC 169 (Del)……………………….. (Del)………………………...7 .7 19. Institute for Inner Studies v. Charlotte Anderson,2014(57)PTC Anderson,2014(57)PTC 228(Del)…………....6 v
20. Jagdish Prasad Gupta v. Parameshwar P arameshwar Prasad Singh, AIR 1966 Pat 33: 1965 BLJR 719: 1966 Cr LJ 54……………………………………………………………………5 54……………………………………………………………………5 21. Jefferey’s v. Boosey (1854) 4 HCC 815 ………………………… ……………………………….……...………7 …….……...………7 22. Joy Music v. Sundar Pictorial Newspaper [1960]2 QB 60; [1960]1 ALL ER 703….. 703…...9 .9 23. Khurja v. Board of High School and Intermediate Education U.P. Allahabad, AIR 1967 ALL 91: 1966 ALL LJ 550……………………………………………………...5 550……………………………………………………...5 24. L.B. (Plastics) v. Swish Products [1979] RPC 551…………………………………... 551…………………………………... 4 25. Mohani Mohan Singh v. Sitanath BasakAIR 1931 Cal 233 at 236………………...…9 236………………...…9 26. N.V. 26. N.V. v. Osborne, (1967) 1 WLR 723………………………………………………….4 723………………………………………………….4 27. Norowizan 27. Norowizan v. Arks, [1998] EWHC 315 (Ch) (17 July 1998)………………………....4 1998)………………………....4 28. Performing Rights Society v. Urban District Council AIR 1930 PC 314……….……9 314……….……9 29. Rose v. Information Services [1987] FSR 254…………………………………….….2 254…………………………………….….2 30. Rupendra Kashyap v. Jiwan Publishing House,1996 (16) PTC 439 (Del)……….… (Del)……….…...6 ...6 31. Sham Lal Paharia V. Gaya Prasad, AIR 1971 All 192………………………… 192…………………………..….…4 32. Sillitoc Sillitoc v. McGraw Hill [1983] FSR 545 at p.550 p. 550……………………………………9 ……………………………………9 33. T Pandian Arivali v. Kamal Hasan, 1994 SCC OnLine Mad 66 : (1995) 2 LW 347………………………… 347……………………………………………………… …………………………………………….…………….2 ……………….…………….2 34. Interelego v. Tyco, (1998) 3 WLR 678…………………………………….………….4 678…………………………………….………….4 35. V. Govinddan v. E.V.Gopalkrishna, AIR 1955 Mad 391……………………….…….9 391……………………….…….9 36. WHAM-O-Mfg. v. Lincoln, [1985] RPC 127 at p. 164 (CA, NZ)…………………... NZ)…………………....4 .4 37. William Hill (Football) (Football) v. Landbroke (Football), [1980] RPC 539 at p. 546………...7 546………...7 BOOKS REFERRED :
1. DENNIS CAMPBELL, WORLD I NTELLECTUA NTELLECTUAL L PROPERTY R IGHTS IGHTS A ND R EMEDIES EMEDIES LAWS WITH COMMENTARY (South Asian Ed. Vol. 6 2012)……………………………….. 2012)………………………………...8 .8 th 2. HALSBURY’S LAWS OF E NGLAND NGLAND (4 Ed.,Vol. 9)………………………………….…3 9)………………………………….…3 ST 3. HELEN NORMAN, I NTELLECT NTELLECTUAL UAL PROPERTY LAW (1 ED. 2011)………………….…5 2011)………………….…5
vi
4. K EVIN EVIN GARNETT, GILLIAN DAVIES & GWILYM HARBOTTLE, COPINGER & SKONE JAMES O N COPYRIGHT (FIFTEENTH ED. 2005)……………………………………. 2005)……………………………………...9 ..9 th 5. P. NARAYANAN, LAW OF COPYRIGHT A ND I NDUSTRIAL NDUSTRIAL DESIGNS (4 ED. EASTERN
LAW HOUSE, 2007)…………………………………………………...………………7 2007)…………………………………………………...………………7 6. V. K. AHUJA, LAW OF COPYRIGHT P .51 (2 ND ED. 2015)…………………………... 2015)………………………….......7 ....7 nd 7. W.R. CORNISH, I NTELLECT NTELLECTUAL UAL PROPERTY p. 270 (2 Ed. 1911)……………… 1911)………………... ...…..4 …..4
vii
________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ STATEMENT OF JURISDICTION
The defendant’s submit to the jurisdiction of the District Court of Saharanpur with the liberty to raise preliminary objection during the oral submission.
THE PRESENT MEMORANDUM SETS FORTH THE FACTS , CONTENTIONS AND ARGUMENTS IN THE PRESENT CASE
viii
________________ _______________________ ________________ ________________ _______________ _______________ _______________ ________________ _______________ ________ _ STATEMENT OF FACTS ADIANCE” “R 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 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. Mr. Gopal 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 Rad iance 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’ with Mr. Natwar’s continuous co ntinuous consultation. “COPYRIGHT INFRINGEMENT AND
CIVIL SUIT”
On 15th March, Gopal Singh 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 started reading it and comparing it with his father’s poem as much he was able to recall. Then Mr. Gopal 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 he had not infringed copyright in any way and 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 tune of Rs. 5 lakhs.
ix
________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ STATEMENT OF ISSUES
A. WHETHER
PLAINTIFF CAN CAN CLAIM
CIVIL REMEDY WITHOUT REGISTRATION OF WORK
ADIANCE”? “R ADIANCE
B. WHETHER THERE IS
INFRINGEMENT OF OF
COPYRIGHT IN THE WORK
x
“IRIDESCENCE”.
________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ SUMMARY OF ARGUMENTS
A. THE PLAINTIFF
DOES NOT HOLD
R EGISTRATION EGISTRATION
IN WORK “R ADIANCE ADIANCE” AND THUS
CANNOT CLAIM CIVIL REMEDY
Though it is not mandatory under Copyright Act, 1957 for an author to register his work with the copyright board but to avail the civil c ivil and criminal remedies under the act, the wo rk demands to be registered. The person who infringes the rights of a copyright holder holder must have knowledge before about the copyright owner and such knowledge cannot be attributed unless the provisions provisions of Registration of Copyright are complied with. Hence, a work should be registered in order to file suit of infringement before the district court. B. THAT THERE IS NO INFRINGEMENT IN THE WORK
“IRIDESCENCE ”.
The work “iridescence” by the author Mohan Sharma is an original work. The work radiance by the plaintiff had license agreement but no registration. However according to section 30 of the Act, there is a requirement that before making license agreement the person making license must have Copyright over that work which in this case plaintiff didn’t have. The Defendant submits that Plaintiff’s work is not Published Work. Section 14 (iii) of the Copyright Act, 1957 1957 which confers exclusive right upon the author to “perform the work in public, or communicate it to public. The public here means the “General Public” and that performance before a “closed group” however large in number may not necessary constitute performance in Public. The Shri Girdhar Library is a private owned library, only a limited number of people who were its members had access to the work of Shyam Singh Madhav. The library being a private library has potential to get close permanently, anytime. Once a work gets a public access it cannot go back to restrain people to extract fruits of it. One must be careful not to jump to the conclusion that there has been copying merely because of similarity of the incidents. Iridescence does not lack originality, and the Defendant placates the Labor - Skill Test, The Defendant satisfies Idea-Expression Dichotomy requirement, there is no substantial
Copying
of
xi
Plaintiffs
work.
________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ ARGUMENTS ADVANCE
A. THE PLAINTIFF DOES NOT HOLD R EGISTRATION EGISTRATION IN WORK
ADIANCE” AND THUS CANNOT “R ADIANCE
CLAIM CIVIL REMEDY
1. For copyright to exist in a work, registration is not compulsory, but for obtaining civil or criminal remedies against an infringement, such work should be registered.1 According to Section 51 of Copyright Act, 1957, infringement takes place when exclusive rights of the copyright owner are exercised by the t he infringer without prior permission of the former.2 2. The infringer must be deemed to have knowledge about the copyright owner and such knowledge cannot be attributed unless the provisions of Registration of Copyright are complied with.3 Otherwise a person who is innocent can in that event be easily brought in the net of infringement under civil law or criminally which can never be the intention of the legislature. 4 Thus if a copyright owner wants to enforce civil and and criminal remedy before the special forum i.e. District Court rather than a normal Civil Court, he must have the registration.5
B. THAT THERE IS NO INFRINGEMENT IN THE WORK
“IRIDESCENCE ”.
3. There is no copyright i1nfringement in the work iridescence as Gopal Singh does not have Copyright in work “Radiance” [I] and Copyright of constituent elements of the work are original.[II] Arguendo the Defendant submits that the “Iridescence” has been taken from Common Source. [III] I.
GOPAL SINGH DOES NOT HAVE COPYRIGHT IN WORK “R ADIANCE ADIANCE ”
1
K EVIN G ARNETT , G ILLIAN D AVIES & GWILYM H ARBOTTLE , COPINGER & SKONE JAMES O N COPYRIGHT (FIFTEENTH ED. 2005). 2
P. N P. N ARAYANAN , LAW OF COPYRIGHT A ND I NDUSTRIAL DESIGNS 14-44 (4th ED. EASTERN LAW HOUSE, 2007)
3
V.K. A V.K. A HUJA, LAW OF COPYRIGHT AND NEIGHBOURING RIGHTS (2 ND ed., 2015).
4
Id . at 3
5
Dhiraj Dharamdas Dewani Dewani v. Sonal Info Info Systems Pvt. Pvt. Ltd., 2012 Ltd., 2012 (52) PTC 675 (Del) at p. 698.
1
4. The plaintiff does not have Copyright in work Radiance because the plaintiff did not have Copyright while making license not allowing him to make license agreement. [a] Gopal Singh cannot acquire Copyright in Titles of Poem. [b]Arguendo the defendant submits that Plaintiff’s work is not published. [c] a. Gopal Singh does not have Copyright while making License. 5. Section 30 of Copyright Act, 1957 provides a requirement that before making license agreement the person making license must have Copyright over that work.6 The Plaintiff did not have copyright in his father’s unpublished work and thus could not have given the same work to Library through License Agreement.7 In Entertainment In Entertainment Network ltd. v. Super Cassette Industries8 it was held that ‘ the basic underlying philosophy of Copyright Act is that only the copyright owner can make an license agreement’ and thus when Gopal Singh did not have copyright he didn’t have the right to make an license agreement. b. No Copyright in Titles of Poem “Radiance”. 6. In T Pandian Arivali v. kamalhasan9 the court held that titles are not copyright as they are not part of the work of o f the author or composer. In Du In Du Boulay v. Du Boulay10 the Privy Council held that “There is not absolute right of a person to a particular name to the extent of entitling him to prevent the assumption of o f that name by a stranger. The mere assumption of a name, which is the patronymic o f a family by a stranger who had never before been bee n called ca lled by that t hat name, whatever w hatever cause of annoyance it may be to the family, is a grievance for which our law affords to redress. Thus Plaintiff does not have Copyright Cop yright over the titles of the Poems. Po ems. c. Arguendo the Defendant submits that that Plaintiff’s work is not Published Work. 7. 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 6
S.30 of Copyright Act, 1957.
7
Factsheet, para 2
8
(2008) 13 SCC 30
9
1994 SCC OnLine Mad 66 : (1995) 2 LW 347
10
[1869] LR 2 PC 430; Rose 430; Rose v. Information Information Services [1987] Services [1987] FSR 254.
11
Section 14 (a) of Copyright Act, 1957. 2
defined in section 2(ff) of the t he 1957 Act 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.”12The legislators have defined the work “Publication” in Section 3 of Copyright Act as making a work available to the public by communicating the work to public.13 8. The expression “in public” or “public” is not defined in the Act. The public must mean the “General Public” and that performance before a “closed group” however large in number may not necessary constitute performance in Public. Pub lic.14 The criteria cr iteria for determining public accessibility was discussed in Garware Plastics v. Teleling 15where the character of the audience, whether the audience in relation to the owner of the Copyright can be considered; and whether permitting such performance would in any way whittle down the protection given to the author of a copyright work under the Copyright Act resulting in the owner being deprived of monetary gains out of his intellectual property. In the present case owner himself had donated the book and thus did not have intention to have commercial gain. 9. In the present case the above three criteria are not satisfied since the Shri Girdhar Library was a private owned o wned library, only o nly a limited number of people peo ple who were its members had access to the work of Shyam Singh Madhav. The library being a private library has potential to get close permanently, anytime.16 Any day if it happens the public will be denied the access to the works of the author. Once a work gets a public access it cannot go back to restrain people to extract fruits of it. Also as per the clauses of License Agreement the public had restricted rights to the books of the author.17
12
Section 2 (ff) of Copyright Act, 1957.
13
Section 3 of Copyright Act, 1957.
14
P. N P. N ARAYANAN , LAW OF COPYRIGHT A ND I NDUSTRIAL DESIGNS p.167 (4th ED. EASTERN LAW HOUSE, 2007)
15
AIR 1989 Bom 331 at p. 336.
16
P. N P. N ARAYANAN , LAW OF COPYRIGHT A ND I NDUSTRIAL DESIGNS p.167 (4th ED. EASTERN LAW HOUSE, 2007)
17
Fact Sheet, Annexture I, para 5, License Agreement.
3
II.
THAT
THERE IS
NO
COPYRIGHT INFRINGEMENT AND
IRIDESCENCE
IS ORIGINAL
WORK .
10. The determining factor in case of Copyright Act is to see whether the impugned work is a slavish imitation and a copy of another person’s work or it it bears the impress of the authors own Labour and exertions.18 In order to prove Copyright Co pyright Infringement the party must prove that the defendant had access to the plaintiffs’ production. 19 In Norowizan In Norowizan v. Arks20 the court held that no copyright subsists in mere style or technique of editing. 11. In Harman In Harman Pictures N.V. v. Osborne21 that one must be careful not to jump to the conclusion that there has been copying merely because of similarity of stock incidents, or of incidents which are found in historical, semi-historical and fictional literature relating to the characters in history. Iridescence does not lack originality[a] and the Defendant placates the Labour - Skill Test. [b] The Defendant satisfies Idea-Expression Dichotomy requirement. [c] There is no Substantial Copying of Plaintiffs work. [d] a. Iridescence does not lack Originality. Originality. 12. The owner of a copyright has no monopoly in the subject-manner. Others are at liberty to produce the same result provided that they do so independently and a nd though they are not the first in the field, their work is nonetheless ‘original’ in the sense in which that worked is used in the Copyright Act.22The Court in L.B. in L.B. Plastics v. S wish wish Products23 the court held that no originality of thought is needed to sustain a claim of Copyright. It is not necessary that “the work should be the expression of original or inventive thought, for Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and in the case of a literary, with the
18
Sham Lal Paharia V. Gaya Prasad , AIR 1971 All 192, United States court in Interelego v. Tyco , (1998) 3 WLR 678 19
L.B.(Plastics) L.B.(Plastics) v. Swish Swish Products [1979] RPC 551, WHAM-O-Mfg. v. Lincoln [1985] Lincoln [1985] RPC 127 at p. 164 (CA, NZ).
20
[1998] EWHC 315 (Ch) (17 July 1998)
21
(1967) 1 WLR 723.
22
Halsbury’s Law of England, 4 thEdn.
23
[1979] RPC 551 at p.567.
4
expression of thought in print or writing.” 24 Courts have emphasized that the degree of Originality required for literary work for Copyright protection is Minimal 25 because this reduces the element of subjective judgment in determining what work qualifies for protection and gives protection to a person who expands labour, skill, judgment and capital in producing the work.26 13. In Jagdish Prasad Gupta v. Parameshwar Prasad Singh27 the court was of the view that no original thought or original research is required in o rder that a literary work may be deemed to be original. 14. In Agarwala Publishing House, Khurja v. Board of High School and Intermediate Education U.P. Allahabad 28, it was held that the literary merit of the work is immaterial, even a mundane rhyme would qualify for copyright protection if it originates from the intellectual exercise of an individual. 15. In the case of Feists Publication v. Rural Telephone Service29, the court relied on minimum modicum of creativity wherein it has been held that it must be independently created by the author and that it possesses at least some minimal degree of creativity in it to make it eligible for attaining originality. As per the judgment any independent creation with certain degree of creativity would be considered as original. 16. It is not proper to dissect the work into parts and then show that each part by itself is not entitled to copyright protection and then to extend the justification to deny the whole work, the protection of copying.30
24
Halsbury’s Laws of England, 4 thEdn., Vol. 9, para 831 based on University of Londan Press v University Tutorial Press [1916] Press [1916] 2 Ch 601 at p. 608, Fraser v. Evans [1969] Evans [1969] 1 ALL ER 8 at p. 12; Anand 12; Anand v. Delux Films, Films, AIR 1978 SC 1613 at p. 1618; 1618; Misra Bandhu Karyalaya v. Shivaratanlal Koshal, Koshal, AIR 1970 MP 261; Fateh Singh Mehta v. Singhal (1990) (1990) IPLR 69 (Rajasthan). 25
Jagdish Prasad Gupta Gupta v. Parameswar Parameswar Prasad Singh, Singh, AIR 1966 Pat. 33.
26
W.R. C ORNISH ORNISH , I NTELLECTUAL PROPERTY p. 270(2ndEd. 1911).
27
AIR 1966 Pat 33: 1965 BLJR 719: 1966 Cr LJ 54.
28
AIR 1967 ALL 91: 1966 ALL LJ 550.
29
499 U.S. 340 (1991)
30
HALSBURY ’S LAWS OF E NGLAND p. 533( 4thEd.,Vol. 9).
5
17. In Govindan v. Gopal krishna31 the opinion expressed was that in modern complex society provisions have to be made for protecting every ever y man’s copyright whether big or small, small, whether involving a high degree of originality as in a new poem or picture or only originality at the vanishing point as is in a law report. The requirement is that of minimal degree of Creativity. The requisite level of creativity is extremely low; even a slight amount will suffice. 32 Thus it can be inferred from the facts that the work Iridescence Iridescence is entirely different from that of Plaintiffs work. The expression of all the poe ms are different.
b. The Defendant placates the Labour - Skill Test 18. It is indeed impossible to define in any precise terms the amount of knowledge, labour, judgment or literary skill which the author of a work must bestow on its composition in order to acquire copyright.33 Thus, a work may be ‘original’ if the author has applied his skill or labor, even though he has drawn on knowledge common to himself and others or has used already existing material.34 19. In Rupendra Kashyap v. Jiwan publishing House,35the court held that the word “original” in Section 13 of Copyright Act, 1957 did not imply any originality of ideas but merely meant that the work in question should not be copied from some other work and should originate from the author being the product of his labor and skill. Original simply means that the work has independently been created by the author and has not been copied copied from someone else’s work. The Poem of defendant shows not mere trival variation but shows substantial variation which confers Copyright as required by Law.36 In Institute In Institute for Inner Studies v. Charlotte Anderson,37 the
31
AIR 1955 Mad 391: (1955) 1 Mad LJ 401.
32
K EVIN EVIN GARNETT , GILLIAN DAVIES & GWILYM HARBOTTLE, COPINGER & SKONE JAMES O N COPYRIGHT (FIFTEENTH ED. 2005). 33
Per Lord Atkinson in Macmillan & Co. Ltd. v. Cooper (K (K & J) (1923) 40 T.L.R. 186 approved by House of Lords in G.A. Cramp G.A. Cramp & Sons Ltd. v. Frank Smythson Ltd. (1944) A.C. 329. 34
Id. at Id. at 31
35
Rupendra Kashyap v. Jiwan Publishing Publishing House,1996 House,1996 (16) PTC 439 (Del).
36
Eastern Book Co. v. D.B. Modak, (2008) 1 SCC 1 at p. 113; Emergent Genetics India Pvt. Ltd. v. ShailendraShivam, 2011 (47) PTC 494 (Del) at pp. 505-06.
6
court stated that there were cases where the courts had to draw the line between the ideas and expression of such ideas by indulging into the depth enquiry into the work in order to identify as to what could constitute idea in a particular work and what was an expression of such idea where the originality resided. 20. In the case of Campbell v. Acuff Ross Music Inc.38, the plaintiff composed a song that begins with “Oh, Pretty Women” which became very famous. The defendant copied the famous 1st line of the song alone and completed the song in his own words and expression. The court held that the act did not constitute infringement. 21. It can be seen from the poems that the defendant has used his labour and skill to make the poem as the expression in the poem po em is entirely different from that of plaintiff’s poem. plaintiff’s poem. c. The Defendant satisfies Idea-Expression Dichotomy requirement. 22. The fundamental rule of copyright law is that there is no copyright in idea but the expression of an idea is protected.39 Article 9(2) of TRIPS states that, “Copyright protection shall extend extend to expressions and not to ideas, procedures, and methods of operation or mathematical concepts as such.”40 Article 2 of WCT, 1996 use the same language and is consistent with TRIPS. 41 It is submitted that there is no copyright in an idea as such.42 23. A person may have a brilliant idea for a story, or for a picture, or for a play, and one which, so far as he is concerned, appears to be original, but if he communicates that idea to an author or a playwright or an artist, the production which wh ich is the result of the communication of the idea to the author or the artist or the playwright is the copyright of the person who has clothed the idea in a form, whether by means of a picture, a play, or a book, and the owner of the idea has no rights in the product.43 Megarry, J. in Northrop Ltd. v. Textea Blackburn Ltd.44 stated: Copyright is 37
Institute for Inner Inner Studies v. Charlotte Anderson, Anderson, 2014 (57) PTC 228 (Del) at pp.285-86
38
510 U.S. 569 (1994)
39
815; Deeks v. Wells AIR 1933 PC; Balck’s Law Dictionary 8 th Edn., p. 761. Jefferey’s v. Boosey (1854) Boosey (1854) 4 HCC 815; Deeks
40
Article 9(2) of TRIPS.
41
Article 2 of WCT
42
William Hill (Football) v. Landbroke (Football) [1980] (Football) [1980] RPC 539 at p. 546.
43
Donoghue v. Allied Newspaper Newspaper Ltd., (1937) Ltd., (1937) 3 ChD 503; 503; India Pvt. Ltd. v. Piyush Agarwal, 2014 (58) PTC 169 (Del) at p. 175. 7
concerned not with any originality of the ideas but with their form of expression that originality is requisite. 24. In Baker v. Selden45 the court held that the defendant had used the idea and the bookkeeping method of the defendant with slight variation, he had expressed the idea by way of a different expression and therefore his work didn’t amount to co pyright infringement. 25. The word “original” does not mean that the work must be the expression expression of original or inventive thought.46 Copyright acts are not concerned with the originality of ideas, but with the expression of thoughts, and, in the case of “literary work”, with the expression or thought in writing or printing.47 In Hollinrake In Hollinrake v. Truswell ,48 Lord Lindley observed that the defendant might have got her own idea from the plaintiffs chart, but the defendant had not copied more than the plaintiff’s method of measuring. Copyright did not extend to ideas, or schemes, or systems, or method it was confined to their expression; and if their expression was not copied, the copyright was not infringed. d. There is no Substantial Copying of Plaintiffs work. work. 26. In FE In FE Engineering & Consultancy Con sultancy Pvt. Ltd. v. LG cable Ltd.49the Delhi High Court stated that the law on infringement of copy right was well settled and well crystalized. “Quality and substantiality are the two touchstones on the basis of which such allegation are to be tested.”
50
The court held that although there were some similarities at same places of one two pages of the manual, the same could not be said to be substantial reproduction of the works of the plaintiff and, therefore, no injunction was to be granted.51 44
(1974) R.P.C. 57 at 68 as quoted in W.R. CORNISH, CASES AND MATERIAL ON I NTELLECTUAL PROPERTY (Sweet and Maxwell, 2ndEdn., 1996) p. 253. 45
101 US 99 (1879) : 25 L.Ed 841
46
K EVIN G ARNETT , G ILLIAN D AVIES & GWILYM H ARBOTTLE , COPINGER & SKONE JAMES O N COPYRIGHT (FIFTEENTH ED. 2005). 47
V.K. A V.K. A HUJA, LAW OF COPYRIGHT AND NEIGHBOURING RIGHTS (2 ND ed., 2015).
48
Hollinrake v. Trusw Truswell, ell, (1984) 3 Ch 420; Harnam 420; Harnam Pictures Pictures N. V. V. v. Osborne, Osborne, (1967) 1 WLR 723.
49
2002 (25) PTC 577 (Del)
50
Id at at p. 582
51
Id at at p. 586 8
27. The courts have laid down criteria as by taking each of the works, comparing them as whole and determining whether there is not merely an identity or similarity or resemblance in some of the leading features or in certain of details, but whether, keeping in view the idea and general effect created by the original, o riginal, there is such a degree of identity or similarity similarity as would lead on to say that the alleged infringement is a copy or o r reproduction of the original.52 28. The plaintiff humbly submits that defendants work is entirely different from that of Plaintiffs work. Reference can be made to all the poems as they are entirely different. III.
ARGUENDO IF THE COURT BELIEVES THAT THERE WAS COPYRIGHT INFRINGEMENT , THE
DEFENDANT
SUBMITS THAT THE “IRIDESCENCE ” HAS BEEN TAKEN FROM
COMMON SOURCE.
29. In V. Govinddan v. E.V.Gopalkrishna,53 the plaintiff had published an a n English – English – Tamil Tamil dictionary. The defendant had subsequently published another English – English – Tamil Tamil Dictionary. The plaintiff sued the defendant alleging that the copyright in his work had been infringed by the defendant. It was observed that Regarding ...plea of “common source”, it is well known that a person relying on it must show that he went to the common source from which he borrowed employing his skill, labour and brain and that he did not merely do the work of the copyist, by copying away from a work. 30. Courts have also held that “Similarity between the works of the plaintiff and defendant may also occur due to other reasons, such as both of them might have been used in common source or that they have arrived at the t he result result independently by putting their time and labour.”54 31. In the present case the work of Plaintiff is exactly similar and copied from the Poems of Howard Simon who has written I choose the mountain, Something Big, A Fallen Tree and A prayer for Excellence. The poem beautiful has been taken from poem Yoonoos Peerbocus. Thus the defendant submits that the idea of work Iridescence has been taken from Common Source and
52
Franz Hanfstaengal v. Baines [1895] AC 20; ILR (1895) AC 23; Gopal Das v. Jagannath, AIR 1938 ALL 266. See also Joy also Joy Music v. Sundar Pictorial Newspaper Newspaper [1960]2 QB 60; [1960]1 ALL ER 703; Sillitoc v. McGraw Hill [1983] FSR 545 at p.550; Mohani Mohan Singh v. Sitanath Basak AIR 1931 Cal 233 at 236; Performing Performing Rights th Society v. Urban District Council AIR 1930 PC 314. See also Halsbury’s Laws of England, 4 Ed., vol.9, para 911. 53
AIR 1955 Mad 391
54
Corelli v. Gray, Gray , (1913) 29 TLR 570 : 30 TLR 116
9
additionally the defendant has put his time and labour and the expressions is also different. Thus it
can
be
perceived
that
defendant
10
has
made
original
work.
________________ _______________________ _______________ _______________ _______________ ________________ _______________ _______________ ________________ _________ _ PRAYER
Wherefore it is prayed, in light of o f the issues raised, arguments advanced, and aut horities cited the counsel for the Defendant respectfully requests the District Court of Saharanpur ( U.P) to: To Hold: 1.
That the defendant has not infringed the copyright of plaintiff.
2. That the works of the defendant are o riginal and he has not copied anything from anywhere.
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 nteres nterests of of Ju sti ce, ce, F air ness ness, Equ it y and Good Conscience Conscience.. F or T hi s Act of K in dnes dness, the Def Def endant Shall D uty Boun d For ever ver Pr ay.
Sd/(Counsel for the for the Defendant)
xii