K. Ramaswamy, J.@mdashTHE suit- O.S. No. 385/80 by the respondent gave birth to four appeals to adjudicate whether plagiarism was committed by the story writer the first defendant/appellant in CCCA 75/81, and Director-cum-Script writer, the second defendant/appellant in CCCA No. 77/83 and the producers-defendants 3 to 5/appellants in CCCA 65/83 was adopted by the producer of the Hindi film 7th defendant/appellant in CCCA No. 87/83 by substantially adopting the respondent''s novel ''ide na nyayam'' (This is my justice) in making-''gorintaku'' (botanical name ''henna'') cinematograph film, for short, ''the picture'' and ''mehndi Rang Layegi''. The suit against defendants 6 and 8 was dismissed and became final. Since the facts and questions of law are same, they are'' disposed of by common judgment.
2. THE respondent has written a novel by name ''ide Na Nyayam'' was published initially in ''yuva'' Telugu leading monthly magazine became popular and was published in a book form in 1968. It underwent three editions, the last of which was of the year 1975. It is marked as Ex. A-11. She laid the suit for damages for Rs. 50,000/ and for permanent injunction to restrain the appellants from exhibiting the picture and ''mehndi Rang layegi'', complaining that they have infringed her copyrights of the novel, ''ide na nyayam''. The trial Court issued permanent injunction prohibiting exhibition of the picture and ''mehndi Rang Layegi'' or to produce ''ide na nyayam'' into cinematograph film in any other language infringing the copyright of the respondent; awarded damages jointly and severally of Rs. 30,000/ against the defendants 1 to Sand Rs. 20,000/ against the 7th defendant with interest and costs.
3. THE material facts are these; The respondent has written ''ide nanyayam'' expending considerable thought, labour, skill and novelty exposing the evils in the society with certain characterisations. Thereby she acquired exclusive copyright to her novel The producers (appellants in CCCA 65/83)without assignment by her, substantially adopted the story, sequence of events and treatment, incidents, expressions and produced the picture, with minor variations so as to suit the screen and sentiments of ungoing public. It is nothing but a replica of her novel ''ide na nyayam''. It was released on October 19, 1979, and was exhibited under the banner ''yuva Chitra'' and the source for plagiarism of piracy was attributed to the defendants 1 and 2. It was distributed by the 5th defendant. The picture was exhibited in Shanti theatre at Hyderabad. On seeing the same, some of her acquaintances informed her that ''gorintaku'' is nothing but adaptation of her novel. On January 7, 1980, she too saw the film and concluded that the film substantially adopted her novel. Thereafter, she get issued notice, Ex. A-3, on January 28, 1980, calling upon the defendants 1 to 5 to tender an apology for infringing her copyrights and to render an account of the profits derived. Defendants 3 and 4 gave a reply, Ex. A-4, on February 2, 1980, and defendant no-5, under Ex. A-6, of February 12, 1980, stating that the first defendant is the story writer and the second defendant is the script writer which formed the base to make the picture and they denied the piracy or infringement of her copyright. The first defendant gave her reply, Ex. A-5, February 5, 1980, pleading that she is the author of story and she has assigned to the defendants 3 and 4 to produce the picture and she denied piracy. The second defendant refused to receive the notice. The reiterated in their written statement. Seventh defendant, who was subsequently impleaded, has stated that he purchased copyrights in the picture and produced ''mehndi rang Layegi'' and he denied his liability. The seventh defendant adopted the written statement of the other defendants. The additional stands taken by the 1st and 7th defendants are that the Court below neither has jurisdiction nor territorial jurisdiction to entertain the suit. The Copyrights Act (Act 14 of 1956 for short ''the Act'') does not apply to Telangana area. The respondent did not get her novel registered under the Hyderabad Copyright act or under the Act. Therefore, the suit is not maintainable.
4. THE trial Court framed 10 issues and 2 additional issues. It held that the defendants 1 to 4 have substantially adopted the novel ''ide Na nyayam'' for producing the picture and thereby they have infringed the copyright of the respondent and the same was distributed. The Court has original as well as territorial jurisdiction; the Hyderabad Copyrights Act has no application. The Act applies to the facts and thereby decreed the suit as stated above.
5. BEFORE embarking to enquire into the merits, it is necessary at its threshold to dispose of jurisdictional issues raised by Sri Ramachandra Rao, the learned Counsel for the appellants in CCCA 87/83. He contends that u/s 62 of the Act, every civil suit or other civil proceedings shall be instituted ''in the Court having jurisdiction.'' Sub-section (2) thereof invests only in the ''district Court'' having jurisdiction excluding, by non-obstante clause, the jurisdiction conferred under the Code of Civil Procedure, 1908, or any other law for the time being in force. The Chief Judge, city Civil Court, is not a district Court. Therefore, the Court below is devoid of jurisdiction to entertain the suit. The Andhra Pradesh Civil Courts act, 1972, defines in Section 2(a):
"court" means a civil court established or deemed to be established under this Act";
Section 3 thereof gives power to the Government of Andhra Pradesh in consultation with the High Court by a notification to establish a Court to be called "city Civil Court", Section 4 thereof demarcates the jurisdiction thereof thus:
the number of Judges to be appointed to the City Civil Court shall be "one Chief Judge of the rank of a District Judge" and such number of Additional Chief Judges of rank of a District Judge.
6. u/s 5 of the Act, the jurisdiction of the "chief Judge" shall, subject to the provisions of the CPC and the other provisions of the Act, extend to "all original suits and proceedings of a civil nature". Thus, the Chief Judge, City Civil Court, shall be the District Judge, having jurisdiction to entertain the civil suits or proceedings of civil nature as an established civil court. Section 62 of the Act does prescribe District Judge as Civil Court for the purpose of remedies u/s 55 of the Act. Sub-sections (1) and (2) of Section 62 of the Act read thus:
jurisdiction of courts over matters arising under this Chapter: (1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction. (2) For the purpose of Sub-section (1), a district court having jurisdiction shall, notwithstanding anything contained in the Code of civil Procedure, 1908, or any other law for the time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding, or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain". A reading thereof would in unmistakable terms establishes that the Act does not create a special court for the matters arising under this Chapter. Section 55 provides civil remedies for the infringement of the copyright to the owner of a copyright by way of injunction, damages, accounts and otherwise as may be conferred by law for the infringement of that right. Section 62 is a part of chapter XII of civil remedies. It invests jurisdiction in the District Court having jurisdiction to take cognizance of every suit or other civil proceedings for infringement of the copyrights under the Act. Sub-section (2) thereof lifts the rigour of Section 20 of the CPC and empowers the District Court within whose local limits of jurisdiction at the time of the institution of the suit or other proceedings "the person instituting the suit" or other proceeding "actually and voluntarily resides" or carries on business or personally works for gain. The contention of Sri Ramachandra Rao that it is the High Court that has got original jurisdiction, since the Chief Judge is not the civil court for the purpose of the Act lacks force. The High Court has original jurisdiction only where it is expressly conferred by Letters patent, or under the special statutes, like the Companies Act, the Represantation of the People Act", the Christian Marriage Act, apart from the special original jurisdiction under Article 226 of the Constitution of India. Under the Letters Patent, this Court has no original jurisdiction. The unlimited original jurisdiction has been conferred on the District Court and Courts of subordinate Judges (Chief Judge and Additional Judges) under the provisions of the Andhra Pradesh Civil Courts Act, 1972. For purpose of the cities of hyderabad and Secunderabad, the Chief Judge, City Civil Court, is the Dist. Judge for the purpose of the Act. Under those circumstances, I have no hesitation to conclude that the Chief Judge has jurisdiction and territorial jurisdiction to entertain the suit.
7. IT is next contended that the Hyderabad Copyrights Act (Act No. 2 of 1334 F.) has not been expressly repealed u/s 79 of the Act and, therefore, it is the Hyderabad Copyrights Act that governs the rights of the parties. Therefore, the Act has no application to the city of Hyderabad. I am unable to agree. In respect of "actionable wrongs", being entry 8 of list III Concurrent List of the VIIth Schedule, Article 246(2) empowers parliament to make laws with respect to the subjects enumerated in List III of the Seventh Schedule and the law so made shall prevail over the law made by the State Legislature by operation of Article 254 and to the extent of the occupied field the law made by the State Legislature shall stand repealed. The Act has come into force by notification issued in the Gazette of India dated January 21, 1958. By operation of Sub-section (2) of Section 1, the Act extends to the whole of India and by operation of Sub-section (3) of Section 1, it came into force with effect from January 21, 1958. As a result, oh and from that date, the Hyderabad Copyrights Act by necessary implication stood repealed. Therefore, the Act is applicable to the action in question.
8. IT is next contended that registration u/s 48 of the Act is mandatory and the admitted non-registration denudes the respondent to lay the action nor to make avail of the remedy under the Act. Copyright is the propeity in intellectual production and is a common law right. The Act regulates the copyright or its infringement thereof in the manner prescribed under the statute. The Act intends to protect the owner of his exclusive privilege to make first publication of it and user thereof and thereby it is statutory right. Section 14 defines copyright. Section 13 subsists copyright in literary, dramatic, musical and artistic works. The verb ''subsist'' means ''to remain, inhere (vide Chambers''s Twentieth Century Dictionary, page 1100). The verd ''subsists'' amplifies there the inherent common law rights in copyrights in an owner continues to inhere in him/her under the Act and it is not a new right created for the first time under the Act. Chapter X regulates registration of copyright. Section 45(1) gives an option to the owner of the copyright to have it registered. The permissive language couched is:
may make an application in the prescribed form for entering particulars of the work in the register of copyrights.
Section 48 raises a prima facie evidence of particulars entered in the register of copyrights declaring thus:
48. Register of Copyrights to be prima facie evidence of particulars entered therein:- The Register of Copyrights shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entries therein, or extracts therefrom certified by the Registrar of Copyrights and sealed with the seal of the Copyright office shall be admissible in evidence in all Courts without further proof of production of the original.
Thus, it could be seen that the Act gives an option to the owner of a copyright to have the literary work registered u/s 45. If it is so registered, a certified copy of the entry in the Register in relation to "the particulars entered therein shall be prima facie evidence without further proof of production of the original". It raises only rebuttable presumptive evidence for the purpose of the Act. It is now well settled that the provisions u/s 118 of the Negotiable Instruments Act, or Section 4 of the Bankers'' Books Evidence Act raise rebuttable presumption. If the Legislature intended that the registration is mandatory, apart from not using the peremptory language ''shall'' they ''did not engraft the provision like Section 69 of the Partnership Act, entailing with dismissal of the suit for non-registration thereof. It raises only rebuttable presumption and it is always for the parties to adduce evidence at a trial to conclusively prove when it is subject of an issue. The meaning of the word ''may'' is well settled. Craies on Statute Law, 7th edition, at page 229 stated thus: ''may'' does not mean ''must" may'' always means ''may'' ''may'' is a permissive or enabling expression." at page 234, under the caption ''obligatory and permissive acts'' It is stated thus:
statutes passed for the purpose of enabling something to be done are usually expressed in permissive language, that is to say, it is enacted that ''it shall be lawful'' etc., or that ''such-and-such a thing may be done.'' ''prima facie, these words import a discretion, and they must be considered as discretionary unless there is anything in the subject-matter to which they are applied, or in any other part of the statute, to show that they are meant to be imperative.
Therefore, the word ''may'' is only permissive. Thus, on a reading, of the provisions of the Act, I have no hesitation to conclude that the registration is optional to the volition of the owner of the copyright to have it registered for his benefit. The registration of a copyright is not a condition precedent for the subsistence of a copyright or acquisition of ownership thereof. The registration is only for the purpose of evidentiary value. Beyond it, registration serves no other purpose. As already seen, though the common law right to the ownership of an intellectual product of a literary character is the right of the owner acquired by expending his labour, skill and money and that right is regulated by statute and should be exercised in the manner specified thereunder. The absence thereof does not necessarily entail with denial of the rights engrafted and assured under the Act. My view gains support from the decisions reported in Satsang v. Kiron Chandra, M.C. Productions v. Sundaresan and Nav Saxhitya Prakash v. Anand Kumar which held that registration is not mandatory. It is true that in Veerabhadra Rao v. B.N. Sharma Jaganmohan Reddy, J. (as he then was), speaking for himself and Kumarayya, j. (as he then was) held that registration under the Hyderabad Copyright act is mandatory. u/s 3 thereof, to avail of the remedy under the Act, registration is a condition precedent. Therefore, in view of the language couched thereunder, the Division Bench has held that the registration is mandatory. But, as already held, the language in Section 45 of the Act is not peremptory. Therefore, the ratio Veerabbhdra Rao''s Case (4 supra) does not apply to the Act. Equally in Mishra Bandhu Karyalaya v. S. Koshal, A.P. Sen, J. (as he then was) speaking for the Division Bench has held that to avail of the remedies under the Act, the registration is mandatory. But, as pointed out by the learned judges, the question of registration u/s 45 did not arise in that case because the facts of that case are governed by 1914 act. Therefore, the observations are only obiter. This decision has consistently been not followed by the Madras, Calcutta and Allahabad High Courts. I respect fully agree with the learned judges and hold that with due respect to the Division Bench, that the obiter has not correctly laid down the law. I agree with the ratio in the earlier decisions. I accordingly hold that the registration is not mandatory. Therefore, the suit is not liable to be dismissed on that ground.
9. Yet another contention raised by Sri Ayyapu Reddy, the learned Counsel for D. Narayana Rao, the script writer-cum-director of ''gorintaku'', that Mr. Narayana Rao is a servant of the producers, defendants 3 and 4 and, therefore, he is not possessed of any copyright in the picture nor an owner thereof. The owners are the producers, defendants 3 and 4 who may be vicariously liable for the acts of the Director cum-script writer. Therefore, the suit against him is not maintainable. There are two distinct capacities Mr. Narayana Rao has in the production of the picture. His first capacity is as a script writer, the script is marked as Ex. B-2, and his second capacity is as a Director. u/s 2(d)(v) of the Act, "author" means, "in relation to a cinematograph film, the owner of the film at the time of its completion." in chapter IV, ownership of a copyright and the rights of the owner have been dealt with. Section 17 provides that the author of a work shall be the first owner of the copyright therein. Thus, it is clear that in relation to a cinematograph film, the author is the owner of the film at the time of its completion and he acquires the copyrights therein. u/s 17, all persons employed in the production or making of the cinematograph film like the artists cannot be considered to be the owner of the film. They may be either artists for remuneration or servants, or assistants what ever may be their capacity. Therefore, Sri Ayyapu Reddy may be justified incontending that Mr. Narayana Rao as a Director cannot be considered to be an owner of the cinematograph film. Thereby, the suit as against him in that capacity may not be maintainable. But his second capacity, namely, script writer is altogether distinct. It is his admission now that, he, in collabaration with ramalakshmamma, the first defendant, has written the script, Ex. B-2, before producing the picture. The question then is whether he infringed the copyright of Ide na nyayam''. The author u/s 2(d)(1) of the Act means, "in relation to a literary or dramatic work, the author of the work: Section 2(m) defines ''infringing copy'' as,
in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematograph film:
Therefore, if it is found that there is a re-production of a literary work, then the author of the literary work infringes the literary work. Section 14 defines copyright to mean the exclusive right, by virtue of, and subject to the provisions of the Act,
(a) in the case of a literary, dramatic or musical work, to do and authorise the doing of any of the following acts, namely : (i) to produce the work in any material form; (ii) and (iii)... (iv) to produce, reproduce, perform or publish any translation of the work; (v) and (vi).... (vii) to make any adaptation of the work;
Section 13 provides subsistence of the copyright in relation to the original literary, dramatic, musical and artistic works. Section 51 postulates when the copyright shall be deemed to be infringed. Section 13(3)(a) excludes copyright of a cinematography film to a pirate. Therefore, if it is found that the script writer who is an author thereof infringes the copyright by substantial adaptation of a literary work of another author, certainly he will be a person and an author of an infringing work and thereby he becomes liable for the actions u/s 55 of the Act. This view of mine receives succour from Section 63 of the Act which amplifies thus:
Section 63. Offence of infringement of copyright or other rights conferred by this Act. "any person" who knowingly infringes or abets the infringement of (a) the copyright in a work, or (b) any other right conferred by this Act,
shall be punishable with imprisonment which may extend to one year, or with fine, or with both." thus, the word ''person'' u/s 63 of the Act is wide enough to include within its fold not only the author of the ''infringing work'' but also any person who with knowledge infringes or abets the infringement of the work, the copyright of which is subsisting under the Act. Therefore, I have no hesitation to hold that the script writer of the cinematograph film is the author of the infringing work u/s 51 and is liable for the actions either u/s 55 or a person within the meaning of Section 63 of the Act.
10. HAVING, thus, wriggled out from the teething troubles let us trench into the crucial question whether the appellants have infringed the respondent''s copyrights of ''ide na nyayam''. Before angulating into merits, it is profitable to have deep look into the relevant provisions of the Act and the law. The words ''literary work'' have not been expressly defined. But Section 2(o) only gives an inclusive definition, as including compilations and tables. Meaning of ''literary work''.
11. IN locus classicus, the definition of the words ''literary work'' is] found from the statement of Paterson, I. in University of London Press Ltd. v. University Tutorial Press Ltd. approved by the House of Lords in Ladbroke ltd. v. Willian Hill Ltd. by Lord Reid that:
the word ''original'' does not in this connexion means that the work must be the expression of original or inventive thought. Copyright acts are not concerned with the originality of ideas, but with the expression of thought, and in the case of ''literary work'', with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work That it should originate from the author.
It is further stated that:
the word ''literary'' seems to be used in a sense somewhat similar to the use of the word ''literature'' in or electioneering literature and refers to written or printed matters.
It is now well settled that the Act concerns not with the ideas but with expression of ideas in print or writing provided sufficient labour and skill has been exercised, bestowed or is expended. A good literary form with considerable thought, skill and labour bears the impress of a literary work, if sufficient originality is exercised or is bestowed upon. Original need not necessarily be the first in point of time. Whoever writes of it or develops the idea in a particular form has a copyright therein, unless it is directly copied or slavishly or colourably imitated upon from another''s work, in which case it amounts to reproduction or adaption. But the question whether it has originality of its own or whether it is a reproduction is always a question of i fact. As held in Macmillan Company v. Cooper, Lord Atkin, speaking for the Board that:
what is the precise amount of knowledge, labour, judgment, literary skill or tact which the author of the book must bestow is difficult to be defined with precision. In each case, It largely depends upon the special facts and very much a question of degree.
In Halsbury''s Laws of England, 4th edition, commenting on the Copyright act, 1956, it is stated thus:
only original works are protected under Part I of the Copyright act 1956, but it is not requisite 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 work, with the expression of thought in print or writing.
I, therefore, hold that the words ''literary work'' encompass in their fold works which are expressed in print or writing of thought expending considerable thought, labour and skill disregard of the question of its quality or style or of high degree. It connotes printed or written matter in common parlance. Ordinary literary style may be considered to be the essence of a literary work but when refers to the copyright under the Act, it is not necessary.
12. IT is already seen, Section 14 defines the meaning of copyright as : "(a) in the case of a literary.... work to do and authorise the doing of." the acts enumerated thereunder. It consists of under Clause (5) to make any cinematograph film or a record in respect of the work. Section 13 protects thus:
copyright shall subsist throughout India in respect of (a) original literary.... works.
13. BUT ideas or information on which labour, skill, or capital of an author is bestowed or expended are common property and are not subject of the copyright. Farwell, J., in Donogue v. Allied Newspapers" has held that the copyright exists in a particular form of language by which is conveyed the information which has to be conveyed. If the idea, however brilliant or clever it may be, is nothing more than an idea and if it is not put into any form of words or any form of expression, such as a picture or play, then there is no such thing as copyright at all. There is no copyright in ideas, schemes, systems or methods. It is confined to their expression. If their expression is not copied, the copyright is not infringed. Every man has a proprietary right in his literary work or composition and that copyright is the exclusive'' privilege of making copies of it created by the statute. Object of Copyright:
14. COPYRIGHT, as the term itself implies, is negative right which enshrines a positive content, namely, a prohibition against reproduction of certain original work of a literary value by any one but its author, and in its positive perspective, the right to the work is exclusively vested in its author or producer, so that he alone is entitled to permit its reproduction or use by another. That Act intends to advance not only the exclusive right of the owner of the copyright but also to advance the welfare of the society by disseminating ideas, schemes, etc., to maximise availability of literature, music, or arts or the technological knowledge to the public. The Act appears to guarantee some economic return to the copyright owner by granting to him or her a limited monopoly over his or her work for the periods of fifty years from date of death of the author in Section 22 in Chapter v. The Society has unlimited access to intellectual works against the desire of the creator of the works for financial rewards. The law must be prepared to respond, in order to ensure both a continued creation of intellectual and cultural works and the availability of such works to the public. In Twenty First Century Corporation v. Piken Stewart, J., held that:
creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and other arts. The immediate effect of copyright law is to secure a fair return for an "author''s" creative labour but the ultimate aim is by these incentives to stimulate artistic creativity for the general public good. The sole interest of the U.S. and the primary object in conferring the monopoly, this Court has said, "lies in the general benefit derived by the public from the labour of authors.
It was further held thus:
we must take care to guard against two extreme equally prejudicial : the one, the men of ability who have employed their time for the service of the community may not be deprived of their just merits and the reward of their ingenuity and labour; the other, the world may not be deprived of improvements nor the progress of arts be retarded.
Therefore, creating excessive control of a copyright to an owner would often inhibit the creative effort of another author or artist who would otherwise have relied upon his thought, labour, or skill and hamper the progress in the society. The modern revolution in communication and information is bringing about a conflagration between the doctrinal copyright of an owner under the Act and the likely exercise by another of the innovations or interactions to produce their literary work, etc. It must also be remembered that private motivation for intellectual excellence would always advance the public welfare and ultimately serves to promote broad public availability of the fruits of such labour. Under the guide of copyright, one cannot ask the Court to close all avenues of research and scholarship as well as all frontiers of human knowledge. All endeavour to intellectual excellence is so equally open to all who wish to add to, or improve upon the material already collected by others making an original work. No man can monopolies such a subject. Unrestricted copying would virtually render copyright itself worthless destroying all incentives to seek copyright would discourage disclosure. At the same time, we should also keep in forefront the objects under the Act to protect the commercial value of the productive effort of the individual''s mind; intended to protect all intellectual property capable of extensive reproduction; and whenever new methods of reproduction made possible the "piracy" of unprotected works resulting from intellectual effort, would be retarded and incentives would die out. A balancing blend has to be accorded between the public access to the inflow of intellectual works of art, literature, or innovations as against the limited monopoly for financial gain of the author of the work, etc. Therefore, the concept of copyright has to be harmoniously construed by adopting a rational approach not only to the protection of the intellectual works in this age of technological advancement but also the main aim of the copyright law to secure a fair return to an author for his creative labour. Adaptation:
15. KEEPING this perspective in view, let us proceed to consider what is the meaning of the word "adaptation". Section 2(a) defines "adaptation" means (ii) in relation to a literary work or an artistic work, the conversion of work into a dramatic work by way of performance in public or otherwise. Work as defined u/s 2(y) means;
(i) A literary, dramatic, musical or artistic work; (ii) A cinematograph film; (iii) A record.
It is already seen that the author of a literary work is the owner thereof. Section 13 subsists in him the exclusive previlege of the original literary, dramaticwork throughout India the user, for production or reproduction thereof, to make any cinematograph film and a record in respect of the work u/s 14. The duration thereof has been assured u/s 22 during the author''s lifetime and until fifty years from the beginning of the calendar year of his death. Section 18 gives him right to assignment thereof or a licence to another person u/s 30 Section 13(3)(a) declares that copyright shall not subsist in any cinematograph film if a substantial part of the film is an infringement of the copyright of any other work. Section 51 in Chapter XI adumbrates infringement of the copyright which reads thus;
(a) When any person without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of the licence so granted or of any condition imposed by a competent authority under this Act (i) does anything the exclusive right to do which is by this Act conferred upon the owner of the copyright'':. It is already seen that Section 2(m) defines ''infringing copy'' means," (i) in relation to a literary work a reproduction thereof otherwise than in the form of a cinematograph film". But Section 14(1)(a)(i) defines copyright in the case of a literary work.... authorise the doing of.... to reproduce the work in any material form. Sub-section (2) thereof postulates that any reference in Sub-section (1) to the doing of any act in relation to a work or translation or an adaptation thereof shall include a reference to the doing of that act "in relation to a substantial part" thereof. Section 14(1)(c) provides that in the case of cinematograph film to do or authorise the doing of any of the following acts, namely," (i) to make a copy of the film; (ii) to cause the film, in so far as it consists of visual images, to be seen in public and, so far as it consists of sounds, to be heard in public.
Under Section 14(1)(v), copyright in the case of a literary work relates to making any cinematograph film or a record in respect of the work. Section 13(3)(a) does not accord copyright if a substantial portion of another work is adopted in making a film Thus, it is clear that a copyright is created in relation to a literary work of making any cinematograph film or a record in respect of that work. Assignment of the copyright u/s 18 by the owner or any part thereof is a must either wholly or partly and either generally or subject to limitation and either for the whole term of the copyright or any part thereof. The made of assignment has been engrafted in Section 19. Therefore, by making a cinematograph film, if a substantial part thereof is infringement of copyright of any other literary work, without any assignment or licence it is an adaptation and offends against Section 51 and acquires ne copyright in the cinematograph film. Meaning of the word ''copying'':
16. IN the context of reproduction in Ladbroke Ltd.''s case (7 supra), the learned Law Lord Reid held thus:
particularly reproduction means copying and does not include cases where an author or compiler produces a substantially similar result by independent work without copying. If he does copy, the question whether he has copied substantial part depends more on the quality than on the quantity of what he has taken.
Copinger and Skone James on copyright, 11th edition, in paragraph 420 at page 180 have suggested the test of copying thus:
various definitions of "copy" have been suggested, but it is submitted that the true view of the matter is that, where the court is satisfied that a defendant has, in producing the alleged infringement made a substantial use of those features of the plaintiffs work in which copyright subsists, an infringement will be held to have been committed; if he has made such use, he has exercised unlawfully the sole right which is conferred upon the plaintiff. If this view is correct, it follows that the degree of resemblance between the two works is not itself the test of infringement, but is only one factor in determining whether an unlawful use of the plaintiffs work has been made.
Infringement and its meaning:
17. IN Corpus Juris Secundum, Vol. 18, at page 212, in Section 90, it is stated of ''infringement'' thus:
infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by the statute on the owner of the copyright.
At page 216, it is stated, "complete identity between the original and the copy is not essential to constitute infringement. . . . Similarity or identity is merely evidence of copying more or less strong according to circumstances and the explanations which may be made of it." at page 217, it is further stated, "an infringement is not confined to literal and exact repetition or reproduction; it includes also the various modes in which the matter of any work may be adopted, imitated, transferred or reproduced, with more or less colourable alterations to disguise the piracy." at page 223, in Section 103, it is stated thus:
infringement of copyright of a purely literary work consists of plagiarism, which may take at least three forms; Plagiarism of language, of incident, or of plot. But it must definitely appear that use has been made of the author''s work.
In the language of Diplock, L.J. (as he then was) in Francis Day and Hunter ltd. v. Bron" "the copyright work must be shown to be a causa sine qua non of the infringing work." in the context of ''cinematograph films''. Copinger and Skone James in paragraph 745 at page 305 state : "a sequence of visual images recorded on material of any description (whether translucent or not) so as to be capable, by the use of that material, either of being shown as a moving picture, or of being recorded on the material (whether translucent or not) by the use of which it can be so shown." iyengar''s ''copyright Act and Rules'', 5th edition, at page 87, states on ''cinematograph films'' -thus:
a cinematograph film itself may infringe the copyright in another work. Whether it is so or not depends upon the facts and circumstances of each case. If, in view of the provisions of Section (13)(3), it is found that the film is an infringement of the copyright in a book and if it is a substantial reproduction of the same, it is an infringing work, and, the owner of the film can have no copyright in the same.
By Erskin, L.C., in Mathewson v. Stockdate, it was laid down thus:
if instead of searching into the common source, they avail themselves of the labours of their predecessor by adopting his arrangement it is an illegitimate use.
Lord Hodson in Ladbroke Ltd''s case (7 supra) held thus:
the defendant is not at liberty to use or avail himself of the labour, which the plaintiff has been at for the purpose of producing his work that is, in fact merely to take away the result of another man''s labour or in other words his property.
In Walter v. Lane, Lord Halsbury said:
the state of the law does not permit one man to make a profit and appropriate to himself what has been produced by the labour, skill and capital of another.
In Mazer v. Stain, in its annotation thereto at page 645 stated thus;
the test of an infringement of a copyrighted work is not mere likeness because if the subject is the same and the artists endowed with equal skill or faculty, there may well be a greater or less likeness in the work of any two or more of them. The limited scope of copyright holder''s statutory monopoly like the limited copyright duration required by the constitution, "reflects a balance of competing claims upon the public interest". The decree of objective similarity is not merely important, indeed essential in proving the first element in infringement.
In Francis Day and Hunter Limited''s case (11, supra), Diplock L.J., (as he then was) has said in the context of subconscious copying which constitutes an infringement of copyright thus:
to constitute infringement of copyright in any literary, dramatic or musical work, there must be sufficient objective similarity between the infringing work and the copyright work or a substantial part thereof in the former to be properly described not necessarily as identical with but as a reproduction or adoptation of the latter; secondly the copyright work must be the source from which the infringing work is derived.
In British Leyland Motor Corporation Ltd. v. Armstrong Patents Co. Ltd., indirect copying was held to constitute an infringement of the copyright. But on the facts in that case, it was held that the business of manufacturing spare parts is purely functional and they did not constitute breach of copyrights in mechanical drawings. In Francis Day and Hunter Limited''s case (11 supra), the Court of Appeal has held that:
in order to constitute a reproduction there must be both sufficient objective similarity between the two works and some casual connection between the work infringed and the infringer''s work.
In determining whether piracy has been effected from the original work and substantially reproduced, adopted or copied in making cinematograph film, is subject of consideration in judicial and extra-judicial dicta. Copinger and skone James on Copyright, 11th edition, in paragraph 746 under the caption ''what constitutes Infringement'' state:
but, from the point of view of determining what is to constitute an infringement of literary, dramatic, or musical or artistic works by the making of films, the definitions seem to have made the position less clear than it was under the Act of 1911. While, under the Act of 1911, the film was regarded as a production, consisting of a combination of incidents, under the Act of 1956, it is a piece of celluloid or other material, and while the Act of 1956, as above stated, makes it an infringement to reproduce a literary, dramatic or musical work in the form of a cinematograph film, it affords no guidance as to the circumstances in which such a reproduction is to be recognised. It seems probable, however, that the line of authorities which have established that there is no infringement of a literary or dramatic work by a film, unless a substantial number of detailed incidents are reproduced, will be followed under the Act of 1956.
In R.G. Anand v. Delux Films, relied on by both the counsel, Fazal Ali, J. referred with approval Mr. Ball''s statement in his work ''law of Copyright and Literary Property'' at page 364 thus:
when two authors portray in literary or dramatic form the same occurrence'' involving people reacting to the same emotions under the influence of an environment constructed of the same materials, similarities in incidental details necessary to the environment or setting are inevitable but unless they are accompanied by similarities in the dramatic development of the plot or in the lines or action of the principal characters, they do not constitute evidence of copying.... Unless there is any substantial identity between the respective works in the scenes, incidents and treatment a case of infringement of copyright is not made out.... In the absence of any material resemblance which could be recognised by an ordinary observation, each play must be regarded as the independent work of the named author.
After exhaustively considering the case-law, the following seven tests were laid down in paragraph 46 at page 1627 thus:
1. There can be no copyright in an idea, subject matter, themes plots or historical or legendary facts 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. 2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant''s work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. 3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is too 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. 4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. 5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to "copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. 6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above. 7. Where, however, the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.
Pathak, J. (as he then was), in his separate but concurrent judgment has stressed upon the need to have closer look that the copyright belonging to an author cannot readily infringed by making immaterial changes introducing unsubstantial differences and enlargine the scope of the original theme so that "a veil of apparent dissimilaritv is thrown upon the work". The Court must look strictly at not only blatant examples of copying but also at reprehensible attempts at colourable imitation. In Harman Pictures v. Osburne it is held that there is a distinction between ideas which are not copyrights and situation and incidents which may be. The facts in that case are that the plaintiffs-film producer and distributor-owned the copyright titled "the reason Why" which was based on the study of the background and events leading upto the military engagement known as "the Charge of the Light brigade". There were discussions for producing it as a cinematograph film. The discussion failed. Subsequently, the first defendant, one John Osburne, wrote the script for the motion picture produced by the defendant company called "the Charge of the Light Brigade". While confirming that it was an infringement of a copyright, a prima facie case for issue of ad interim injunction restraining from producing motion picture was made and held that the scrips was based upon the book and accordingly issued injunction.
18. IN Universal City Studio v. Soni Corporation the main picture was video taped for distribution and sale of the video casettes. It was held that the video recording infringes copyrights. In Robin v. Boston and Co. copying for commercial purpose was held to have violated copyrights. Borrowing from a copyrighted work for using criticism or historical scholarship was held to be not a piracy Meeropal v. Nizar.
19. FROM the above discussion, it must be held that copying does, not involve of the result of an independent work though the author produces substantially similar result. But without any independent effort if another author produces making substantial use of important features of the copyrighted work, he would be committing piracy and is a trespass on the private domain of the owner of the copyrighted work. It is thereby an infringement of the copyright of the original author. But mere degree of similar resemblance or likeness between the two works though is an important factor, is not of itself the test of infringement. Complete identity between the original and copy is also not an essential condition to determine the piracy. The literal or exact repetition or reproduction is also not a correct test. Similarity or identity is merely evidence of copying and a strong circumstance. Plagiarism consists of copying of other language or incident or of the plot of the original author or treatment accorded to the work. It must be shown to be cause sin qua non of the infringing work. There must be present two essential things, viz., sufficient objective similarity between the infringing work and the copyrighted work and some casual connection between the work infringed and the infringing work or a substantial part thereof in the former to be found place or basis in the infringing work either by reproduction or adaptation, either with more or less colourable disguise. In a cinematograph film, if a substantial part of the film either of its expression or theme, incidents, treatment, sequence, etc. or their treatment or manner are adopted or reproduced from the original copyrighted work, it would be a piracy infringing the copyright of the owner thereof, The test is that if the reader or spectator or the person who sees the cinematograph film and reads the original copyrighted work is clearly of the ''opinion and gets an unmistakable impression that the cinematograph film appears to be a copy or adaptation of the copyrighted literary work, it would be a case of piracy. The apparent veil of dissimilarity thrown around the work with dexterity by tricks of spinning out colourable yarn so as to sustain the reader''s suspense would not also to be the decisive factor. Immaterial changes or minor adaptation introduced would not be taken to be a substantial adaptation. The mere sameness or similarity of general nature by itself may not be decisive. On totality of all the facts and circumstances and the wealth of details provided would be taken into consideration before coming to the conclusion whether the cinematograph film infringes the copyrighted literary work.
20. IN this context, one important test to be considered is whether a fair use of the copyrighted work has been made of is to be taken into account in judging the piracy. It is well settled that the intention to copy is immaterial. Yet purposive approach affords safe road to reach satisfactory solution. The question to be asked would be whether the infringing work is a substantial reproduction or adaptation or colourable imitation of the infringed work. While angulating that question, the Court has to look at the heart of the ''fair use'' doctrine. In analysing the facts, four factors are to be kept in the forefront to determine whether one''s use of another''s copyrighted work is fair:
1. The purpose and character of the use including whether such use is of commercial nature or is for non-profit, educational purpose; 2. The Court has to see the nature of the copyrighted work whether the nature of the material is such that an additional access to infringed work would serve the public interest; 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. The effect of the use upon the potential market for or value of the copyrighted work. In its analystic umbrella, the Court has to come to the grip whether the nature of the material is such that the additional access would serve the public interest in free dissemination of information or is it intended for commercial purpose for monetary gain.
By user of the person infringing the copyrighted work obtains a direct pecuniary benefit from the use of the copy in its stream of commerce, then it would be considered to be an unfair user for profit.
21. IN the light of the above law, the main question that claims adjudication and a decision is whether the story and script writers have pirated the copyrights of the respondent and producers have substantially adopted in producing the picture of. the story, sequence of events, expressions, and sentiments delineated by the respondent in her novel, ''ide na nyayam'' (This is my Justice ). The case of the appellants is that Ramalakshmamma, the first defendant, is the author of the story Ravudu (a colloquial name for Rama) which was admittedly published in a book form under ex. B-1 after the suit was filed. It is their further case that she sold her copyright under a deed of assignment, Ex. B-4, dated February 21, 1979, to the defendants 3 and 4. The second defendant, Dasari Narayana Rao, director, in consultation with the first defendant had written the script Ex. B-2 and titled the picture as ''gorintaku''. At the time when the first defendant wrote the story, Ex. B-1, she claims to be unaware of the story and the book of the respondent. Ex. A-11, thereby they disclaim knowledge thereof and plead that they did not commit piracy of the respondent''s book, ex. A-11. Contra is the case of the respondent. At the outset, it is necessary to clear the ground whether really Ex. B-I story ''ravudu'' was in existence at the time when it was purported to have been written and formed basis for the script, Ex. B-2 to produce the picture. As stated earlier, admittedly, it was published after the suit was filed. It is also an admitted fact that the first defendant is a reputed writer and critic and the 2nd defendant is an experienced Director. She wrote an article, Ex. A-2, by title "the effect of the novel in changing society" (Maruthunna Samajam Lo navala) and it was published in a special collection of essays on the occasion of a symposium conducted by ''yuva Bharati'', a literary and cultural organisation at Secunderabad. The volume was published in July, 1970, under ex. A-1. Therein, while appreciating the effect of the novel, Ex. A-11, the first defendant stated thus:
this novel is a representative for the changing society and its changing values.
The suit notice, Ex. A-3. was issued on January 28, 1980 to which the first defendant gave reply, Ex. A-5, dated February 5, 1980. There is no mention of the existence of either of her novel ''ravudu'' or of her assigning the copyright thereunder under Ex. B-4 to the defendants 3 and 4. Many of the characteristics, similarities of treatment, etc., in the respondent''s novel, ex. A-11, are found in the infringing picture ''gorintaku'' but did not find place in Ex. B-2 novel, ''ravudu''. It is also an admitted fact that ramalakshmamma and D. Narayana Rao, the second defendant, who refused to receive Ex. A-3 notice, collaborated in finalising the script Ex. B-2. Therefore, from the record it would appear that Ex. B-I, Ravudu, is disguised and was brought into existence to support their actions and that possibility cannot be ruled out in view of the above circumstances. Thus I agree with the Court below that Ex. B-I is not the basis for the script, Ex. B-2, and the agreement Ex. B-4, and the novel Ex. B-I must have been brought into existence with a view to support the action of the appellants.
22. COMING to the crucial question, for its proper appreciation, it is necessary at its inception to narrate the salient features, treatment given and sequence of events in the copyrighted novel, Ex. A-11. It is already held that the registration of the novel is not a condition precedent to acquire copyright. Admittedly, the respondent is the author of Ex. A-11 novel. Thereby she is the owner thereof and the copyrights thereunder as engrafted under the provision of the Act continue to subsist to her. Accordingly, I hold that Ex. A-II is a copyrighted literary work. The salient features in the respondent''s novel, Ex. A-II, are that the hero by name Shankaram hails from lower middle class agricultural family. He is in the habit of getting up early in the morning and attends to his studies, his father keeps a concubine and lives with her in his farmhouse and neglects his mother and the family. The father often comes only to take food. The mother was sick. She has a nursing daughter. Due to ill-treatment, excessive work, want of proper medical treatment, his mother was bed-riddent due to typhoid. He goes to the farmhouse where his father lives with the concubine and implores him to get a doctor from the town for treatment of his mother. Giving deaf ear to the" boy''s request, he left in his bullock cart in the company of the concubine to attend a fair (jolly trip) asking the boy to take the quack doctor of the village and get his mother treated. Mother dies due to typhoid and his sister also died immediately thereafter. His sister was buried by the farm servant; the boy goes to the graveyard and weeps bitterly, He leaves for his study to the city. Initially, the father gives some monetary assistance. Subsequently, he neglects. With the assistance of the friends, he takes his food in the benefactors'' houses once in a day in each of the benefactor''s houses by turns for the week. His friend, who gave him shelter in his room, due to insinuations of another friend, drives him out of room. He goes back to the village but receives no assistance. Then he goes to the house of one of the benefactors. He is a rich man having a teenaged daughter, who looks after the house and an younger brother and sister. Eldest daughter''s name is Shyamala. She develops special liking for the modest behaviour of the hero Shankaram. She gets on each Sunday special food prepared for him. She personally serves him and takes food thereafter. When he returns to her house after coming from the village with frustration for not getting any financial assistance either from his father or the village moneylender; she asks him of his not coming on the previous occasion; he divulges of his circumstances. She offers a room in her house for stay and requests to give tuition for her sister and brother with a view to help him financially. She also informs her father of the same and her father agrees. She gives her bed, fan, etc., to him. She also, at the direction of her father, purchased new clothes to him. She often goes to his room and chit chats with him. When she found that he was washing his clothes, she asks him not to waste his time on trivialities but to devote his concentration and time on studies. While the things are thus going on, one day she informs the hero of the settlment of her marriage with another person arranged by her father and gauges for his reaction. But the hero did not express himself. The marriage was celebrated in gaiety and when she was leaving the house of her father and was about to step into the car, the rose flower from her plait fell down. The hero took it into hand with affection and offered her the same. She puts it in her "plait. Subsequently, they are in regular correspondence exchanging letters on men and matters, personal and otherwise. Ultimately with the assistance of her father, he studies law; he becomes an advocate, shifts to another house. He comes in contact with another lady by name Malati, who become mentally upset due to the demise of her relative-husband at the very beginning of their married life. She becomes the second heroine; he develops intimacy with the second heroine, Malati''s family. Hs brings her book to enthuse self-confidence in her. Ultimately, she recovers from the shock and become mentally sound. He has seen her photographs is an album and praises her of her beauty, personality etc. Shyamala, the first heroine, writes often to him to marry another girl and she also offers him to settle with another girl, He write her not to settle the match. He writes a letter regarding Malati and her condition and he seeks her advice in that regard. While he is an advocate, a lady who was ill-treated by her husband sought for restitution of conjugal society, a decree whereof obtained by Shankaram, the hero. Again she was driven out and when he advised her to seek a divorce, she resents and persists to continue to live with "her husband. One day, on receipt of the letter regarding enquiry of her proposal to marry Malati, Shyamala, the first heroine, comes and she discusses with the hero Shankaram. He expresses a doubt whether Malati having so much love and devotion on her deceassed husband''s memory would bestow the same love and affection on him. Thereon, Shyamala expresses her undisclosed love of him and her intention to marry; but apprehending violent reaction from her father and the consequential disruption to the studies of him, she sacrifices her love for him for his prosperity, marries her husband and happily lives with him while retaining in her heart the pure love for him. She is leading happy conjugal life and davises him that Malati would do the same. Accordingly, the hero and the second heroine married. While so, his father has become a pauper due to his concubine having taken away all the properties. During this period, his farm servant Venkanna often comes to him and informs him of his father''s plight. One day he saw his father sitting in his office and having recognised him, he scolded him violently and did not permit him to stay in his house. His father requested to permit him to stay with him and his wife also requested him to permit his father to stay with them. He said that the father, on account of his cruelty to mother and having neglected him of his studies, welfare, lost his right to seek protection From him. But as a gentleman, he would send him maintenance though not in their relationship as son and father but as a Samaritan. This is the story of the novel under Ex. A-11, ''ide na nyayam''.
23. THE cinematograph film ''gorintaku'', before the title picture actually starts has a background. The hero Ramu hails from lower middle class agricultural family also. He gets up early in the morning and reads his lessons. His father also treats his mother with cruetly. He keeps a concubine and lives with her in the farm house. One day the hero was sent out from the school for non-payment of the fee. Then his mother asked him to go to his father. Accordingly, he goes to the farm-house. Then his concubine requests his father to get her jewellery prepared. He promises to do. When the boy asked for the money, the father did not give. But he takes his concubine to the town in his double bullock cart to see a picture. He taunts his father for his bad habits. His mother attempts to persuade her son. Her husband goes on ill-treating the boy. The boy is rebellious. One day his mother was applying henna paste to the palms of the boy and the daughter and she sings the song of the purpleness of the henna paste, also of its pleasantness, wishing them the same in the real lives ahead. At time his father comes and asks the boy to give water for bath who says that his mother would bring. Then the father becomes violent for the turbulent replies given by the son. In the mean while, his mother brings the water. He abuses her and attempts to beat. The boy goes to and attempts to release her from the hold of the father. In the meanwhile, his sister also comes nearby and the father pushes her. The girl falls down on a stone and becomes unconscious. In the meanwhile, the father goes away to the farmhouse. She was to be taken for treatment to the town. The mother asked the boy to go to the father and bring him to the house so as to take the girl to the town. But he refused to go. Insisted upon by the mother, he goes to the father and tells him of the serious condition of his sister. In the meanwhile, the father and the concubine started together to a jolly trip in a bullock cart. The boy informs the father and entreats him to come and take his sister to the doctor in the town. He did not come. On the other hand, he goes for jolly trip in the company of his concubine. When he returns home, he found his sister dead. The father colds the mother for her weeping over the death. She was buried. The hero goes to the burial ground and bitterly weeps at the grave-yard of his sister. When his father comes, rinding his wife and son weeping, he abuses them. Then the boy rebels against the father for his callous attitude. Then he goes away from the house. From this stage the title picture starts. Ramu is the hero who came away to the city from the house. He was studying medicine. His name was struck off from the rolls for non-payment of the fee. On seeing the same, his friends thought of raising contributions to pay the fee. His classmate, Swapna, who is the first heroine, pays the fee for Ramu. When he enquired, she says why she should not pay. Then he expresses his difficulty for not paying the fee because his students to whom he gives tuitions have gone home. Then Swapna requests him to come to her house to give tuition to her sister and brother. When he wanted to go, he has seen a man whose car was giving trouble to be started. On the hero''s help the car was started and the asked Ramu as to where he was going. Then he gives the address whereon he also says that he was going to the same place and asks Ramu to come in his car. During the journey, he asked Ramu why he was going there. Ramu tells him that he was going there to give tuition to the children. When they went to the house, Ramu realises that the gentleman is no other than the father of Swapna. Swapna introduces ramu and tells her father that she arranged to give tuition to her sister and brother. Her father agrees for Ramu''s living in their out-house. He gives tuition to them. She arranges all things, including new clothes at the instructions of her father. She also asks him not to waste his time for washing his linen and ironing clothes with tumbler. They love each other. But they did not express the same. Ramu writes his love for Swapna in his diary and describes her as Devata (Goddess) Swapna''s father intends to settle her marriage to a bridegroom consistent with his status. Before swapna expressed her desire to marry Ramu, the father reveals to Ramu of his intention and Ramu realising his position desists his desire to marry swapna. Father arranges the marriage. Ramu attends the marriage. When she was about to leave the house, the rose flower from her plait falls down while she was entering into the car. Ramu picks it up gently and with affection offers it to Swapna. Swapna putt it in her plait. She found that her husband had already married another lady. For the sake of the first wife, she sacrificed her married life with her husband and comes back. In the meanwhile, Ramu left their house and stayed in another house. He forgot to take his diary. Swapna''s sister and brother took out the diary and when they were about to read, they fought each other for the same to read. In the meanwhile, the father comes. He reads it and then realises that Ramu and Swapna had loved each other deeply but they were unable to express themselves. After Swapna coming home and narrates of her husband''s previous marriage and her snapping of the tie, he realises that he committed a mistake in giving Swapna in marriage to another and went to ramu, the doctor and requests him to marry Swapna. In the meanwhile, a patient by name Geeta, who was being treated by Ramu for her mental shock received on her hearing the news of the demise of her bridegroom in the car accident. She recovered and loves Ramu. They decided to marry. At that time, father of Swapna comes and tells the situation of Swapna. Ramu decided to marry Swapna and tells the same to Geeta. In the meanwhile, geeta comes to Swapna''s house to enquire about Ramu. During the course of the talk, Geeta tells Swapna that Ramu and Geeta are about to marry. Ramu came and asks Swapna to marry him. She refuses saying that she intends to go back to her husband. In the meanwhile, Geeta commits suicide by taking poison. Swapna offers her blood and saves the life of geeta and'' asks Ramu to marry Geeta. She declares her resolve to open a clinic and invites them to come to the opening ceremony. In the meanwhile the Hero''s mother joins him and lives with him. One day his father comes to hospital with bleeding injuries and was in a critical condition. Ramu recognises him to be his father and refuses to operate upod him. But after being reminded of his duty as a doctor to save the patient''s life, he performs the operation. Hero''s relations Challaiah and Chellamma often bring the news from the village, happened to come to the hospital and saw his father. They go to his mother and tells her of her husband being in the hospital and the operation done and treatment being given by the son. Then she requests her son to bring his father to their house. In the first instance, he refuses to bring. But upon her persuasion, he wanted him to be treated as her husband but not further and he agrees, to bring to his house on that condition and accordingly he was brought. After that, the father assumes the role of a karta, attempts to exercise his power as the karta of the family. There is an interlude, namely, the patient coming to the hospital with serious injuries when she was attempted to be killed by her husband. When the police came to record her statement in the presence of Swapna and ramu, she refuses to give the statement story that he is not responsible, etc. These are the main themes, scene, stating characters and treatment to the subject of the respective novels and the picture. In the picture, there are minor variations effected so as to satisfy the cine-going public and keeping in view the picture as a commercial venture and need for profits.
24. I have read the originals, both Exs. A-11 and B-1 novels. I have seen the picture arranged by the appellants in the company of the advocates for the parties, Mr. Ramachandra Rao, the learned Counsel for the 7th respondent also offered to arrange screening ''mehandi Rang laayegi'' film to see the same. Since admittedly copyrights of the infringing film ''gorintaku'' were purchased and to suit the tastes of the hindi cine-going public, it was screened with many modifications. I told him that it would serve no purpose.
25. ON a comparitive evaluation and common features in the novel and the picture are: the hero bates his father and loves his mother immensely; the father has been depicted to be irresponsible and pays little attention to the welfare of his wife and children and keeps his concubine in the farm house and plays to her tunes and squanders the property; he takes her to a jolly trip in a bullock cart; he neglects the hero. He illtreats his wife and the wife bjars silently all the insults, troubles and humiliations. The hero''s younger sister dies because of the father''s negligence. The hero weeps bitterly over the death of his sister at her grave yard; the first heroine helps the hero and loves him immensely; the first heroine''s father too helps the hero by arranging to purchase new clothes; the hero gives tuition to the younger brother and sister of the first heroine and lives in their house; against the wishes of the daughter-first heroine and without consulting her, her father arranges her marriage. At the time of leaving the father''s house after marriage and when was about to enter into the car, the rose flower falls from the plait of the first heroine; the hero gently takes it into his hands and offers it to the heroine as a token of his fallen love and to remember and she takes it in reciprocation to continue to love him. A woman expresses her steadfast adherence to live with her husband despite the cruel treatment meted out to her by her husband is common place and there is no copyright in that regard. The father seeks son''s assistance after the concubine desists him. This is also common source and possess no copyright. But the story, theme, character scenes and treatment in the picture are woven around the features in Ex. A-11 with minor alterations.
26. IT is equally seen that the sequence of incidents in the copyrighted work and the picture are also practically same. The hero is a boy gets up early in the morning, assiduous in his studies while his mother attends to the household work. The hero''s father abuses the heroine''s mother in indecent language; the mother attends on the husband with anxiety, fear and humility. Despite the hero informs the father of the critical situation of the mother in the novel and sister in the picture, the father adopts callous attitude, asks the hero to get the mother treated with a village quack doctor and goes with his concubine in a double bullock cart for a jolly trip. The hero presents the conduct. He goes to the town for studies; he is helped by his friends. The first heroine, with a view to inculcate a feeling of self-respect that he is not receiving the alms, arranges tuition to her younger sister and brother; she provides residence to the hero in their house; she looks after his comforts; she asks the hero not to waste his time in washing and ironing his clothes; the first heroine often goes to the hero '' s room and spends time in conversation; the hero despite loving the first heroine, he treats her as Goddess (Devata It is already narrated the rose-lower falling from her plait on the occasion of her leaving her parents house and the hero picking it up and offering to the heroine and the heroine receiving it with warmth.
27. THE second heroine happened to come into contact with hero in a mentally deranged condition. The hero treated the second heroine to bring her normalcy; the hero looks into the album of the second heroine and praising her personality and beauty; he comes into close contract with her and develops love; the first heroine expressing orthodox sentiments of the married status of a Hindu woman. The father, after squandering the property and was deferred by the concubine, comes to the son. The two incidents are common property and there is no copyright. The other features are common both in the novel as well as the film. Even with regard to the dialogues in the respective scenes, the language used is also same, though the scene arrangement is different.
28. IN the first defendant''s novel Ex B-1, the hero is shown only as a college student; the hero''s sister is a heart-patient; the watchman in the grave-yard consoles the hero when he wails over the death of his sister; the money lender''s character the hero going to him for help and his refusal thereof; his subsequent coming and offering his daughter in marriage to him after he became an advocate; his leaving the house, he takes his mother''s money of Rs. 500/- deposited by her with the money lender; the college students coming to him and offering a room for the hero''s stay and the hero taking food every day in benifactors'' houses by turns every day in a week; the second heroine''s brother is very kind and affectionate to the second heroine; the first heroine expresses her love for the hero openly; the first heroine meets the mother of the hero and brings him to her; the second heroine was humiliated as a mad person by her brother''s wife and children; the first heroine''s husband openly tells the rougery played by his father to extract dowry from her brother; the first heroine''s father knew the proposed marriage between the hero and the second heroine; the father of the first heroine goes to his son-in-law''s place to see his daughter the hero''s father goes to the house of the brother of the second heroine to drop the marriage proposal; the second heroine becomes mad on hearing the same; the hero''s mother abuses her husband to be a wieked man. All these features are not depicted in the picture. Apart from that, there is no incident regarding the hero''s mother applying hennas paste to the fingers and palms of the hero and her sister nor the mother singing the song and the repetition thereof when the first heroine applies hennas paste to her younger sister and brother; the hero does not maintain any diary nor its revelation of his love for the first heroine. It is already held that Ex. B-I novel was not in existence at the time when the script Ex. B-2 of the picture was written by the second defendant in collaboration with the first defendant. Keeping these facts in view, let us consider the contentions raised by the learned Counsel on either side.
29. THE contention raised by Sri Ayyapu Reddy is that the title forintaku (Henna) signifies sacrifice, blossoming and make the life of others pleasant. The characterisation in the picture through Swapna the first heroine and mother of the hero Savitri, as a traditional Hindu woman''s sacrifice of their love or pleasure for the sake of others; though Swapna, the first heroine is a modern educated girl, the basic quality of sacrifice is projected. To this extent it is common property. That is the theme adopted by the appellants, but whereas in the novel the respondent adopted the love as not static, it is changeable attune to the circumstances and it is a revolutionary one thronged from the pen of the respondent; therefore the themes are different, characterisation is different, object is different and accordingly there is no infringement of the copyright of the respondent''s novel. At a first blush, it impressed me most but on a deeper probe, I find it extremely difficult to accept it for varied reasons. Firstly it has come up from the ingenuity of the learned Counsel''s argument with no factual foundation. Neither in the reply notice of the first defendant nor in any written statement, or evidence, this plea was raised nor convassed before the Court below. The idea in both the picture and the copyrighted work appears to be that love is sublime and one always retains sublime love, despite the frustration in accomplishing it or living with the person with whom the lady is married. In the novel, it is already stated, the first heroine loves the hero immensely, but finding that her father does not agree her to marry a poor boy, while retaining her love for him, sacrifices for his future, but continues to preserve her love for him while leading her marital life with her husband in cordiality. In the picture too, the first heroine loves him immensely and the hero also loves her but they express no such desire openly; when the father of the first heroine expresses his intention to the hero, finding his pliable situation, desisted from expressing his love for the first heroine; after the marriage the first heroine finding her marriage disillusioned; comes back and intends to marry the hero; but finding that the hero was loved by another girl who is in a pitiable condition, while retaining her love with him, continues steadfastly to preserve that love for him, sacrifices it to save another girl (sscond heroine);. This is depicted in both the copyrighted novel and the picture. No doubt, as rightly contended by Sri Ramachandra rao that there are some minor variations in the novel and the picture, viz, the students misbehaviour towards girl students; the hero being meek in the novel and rebellious in the film; not having the weekly food in the benefactors'' houses, absence of money lender''s character and his offer to give his daughter in marriage, etc. The addition of Chellayya and Challamma, hilarious characters is present in the picture but is absent in the novel. But as seen, they are trivial and insignificant and not on material particulars, undoubtedly, there is no copyright in ideas, subject matter, theme or plot as they are common property. But one should not turn blind eye to blatant piracy. When expressions of ideas, characters are inextricably interwoven with the theme, subject matter or plot and they are developed, around it with impugnity by copying or adaptation from copyrighted work as pragmatically cautioned by Pathak, J., the Court has to lift the veil erected around the plot, etc., to disguise piracy and it is the duty of the Court to see the reality. Lest it amounts to put premium on piracy. The test of impression by an objective spectator or viewer and reader of both the works is obviously emphasised by Fazal Ali, J. Purposive test plays vital role to arrive at just decision. The instant case is an obvious instance. Not only the plot or theme, characters, expressions are substantially adapted from the novel but also developed in the picture with minor or inconsequential variations or additions to suit the cine-goers'' taste with profit motive. The theme that a father forfeits his right to assistance on his SOD when he neglects the boy in the childhood is also inconsequential and common property and has no copyright; the second heroine enjoying marital life with first husband in the novel and in the picture her first marriage was frustrated due to bridegroom''s death in car-accident is not material. The mother is alive in the picture, but dies in the novel, etc., are not material. It is already held that with a view to disguise the piracy, camouflage is woven by twists and omission of few incidents. It is not decisive and totality of the facts and impression of the objective, spectator or viewers are the criteria. It is true, as contended by Sri Parvatha Rao that the producers have depended upon the writer-first defendant and the script writer-the second defendant, but when it is found that the latter have committed plagiarism from the novel of the respondent and substantially adapted the same for producing the picture, they should also bear sweet and bitter together.
30. AS already held that impression test is one of the tests. We have in this case the evidence of P. W. 2, a Doctor in Telugu Literature who has read the novelex. A-11 and witnessed the picture has written the article ex. A-8, dated January 4, 1980 and was published in the Telugu Cine Weekly hearld. Therein she has, specifically stated her opinion that the appellants have substantially copied Ex-A 11 novel for producing the picture. She is an independent and disinterested witness. She has no are to grind against anybody. I have carefully scanned her evidence. I am satisfied that her evidence inspires me to accept as correct assessment. On seeing the picture and reading the novel, I too formed the same opinion and agree with her that there is a substantial adaptation of the copyrighted novel to produce the picture. No doubt, the sceneoric arrangements with minor variations have been brought out as admitted by the respondent as P. W. 1 and also P. W. 2. But as seen, the object of the infringing film is a commercial venture for profits and keeping in view of the taste of the cine-going public, certain variations and embellishment have been introduced. It is true as contended by the learned Counsel for the appellants that in the novel he is a lawyer and in the picture he is a doctor; in the novel the first heroine is not a co-student but whereas they are in the picture. The second heroine is not treated in the novel by the hero, but whereas she was treated as patient by him in the picture. But these are inconsequential variations. In the light of the above discussion, the adaptation of the scheme, theme, characters, expressions, treatment to the subject, etc. are inextricably interwoven and substantially the same in both the works. The substantial part of the picture is an infringement of the copyright in the novel Ex. A-11.
31. IT is already seen that the first defendant kas writen for article under Ex. A-2; in Ex. A-1 the collection of essays therein she expressly refers to the novel Ex. A-11 and appreciates the respondent of her progressive outlook; but now she denies the same in her evidence stating that she did not read Ex. A-11 before writing her Ex. B-1 novel RAVUDU.
32. TN Lewis v. Fullerson Lord Langdale held that falsity to deny that they have not copied or taken any idea or language from any work is a strong indication of ''animus-furrandi'' an intent to take for the purpose of saving himself of the labour. This was followed by Swinfen Edy, L.J. in rees v. Melville The learned Lord Justice held thus:
in order to constitute an infringement it was not necessary that the words of the dialogues should be the same, the situations and incidents, the mode in which the ideas were worked out and presented might constitute a material portion of the whole play and the Court must have regard to the dramatic value and importance of what if anything was taken, even though the portion might in fact be small and the actual language not copies. One must, however, be careful not to jump to the conclusion that there has been copying merely because of similarity of story, incidents or common source.
The falsity in denying is held to be a relevant circumstance Therefore, the falsity in denying that the first defendant did not read Ex. A-11 novel itself is a strong indication of ''animus funandi'' and this is a circumstance that goes against the first appellant Mr. Narayana Rao at the earliest, did not even receive the suit notice.
33. THE contention of Sri Parvatha Rao, learned Counsel for the producers that if the structures passed against Narayana Rao are deleted as requested for, the very basis of plagiarism has been knocked off its bottom and therefore it cannot be said that the producers-appellants have committed piracy in adaptation of the copyrighted work in producing the picture. It is a strange argument and I cannot accede to the same. The foundation is the substantial adaptation of the novel to produce the picture. The strictures made by the lower Court are not the basis. It is only disapproval of the conduct of the writer. The expunging remarks do not create any cloud on the unfair adoptation by the appellants. In Anand''s case (16 supra), in the drama only provincialism is the theme and the picture covers wider spectrum. So it was held that there is no infringement. It does not apply to the facts in this case In A.L.S. Productions v. Jayalakshmi the facts are that the plaintiff Jayalakshmi wrote the story by name ''gouravam'', published in the Tamil weekly ''kalki''. It was a familiar social phenomenon of a poor brother giving his sister in marriage to a rich husband and the sister due to pressure from the husband''s family ill- treated the brother and subsequently writing a letter to him of the circumstances under which she has to so behave towards him. The cinematograph film titled ''sarada'', carried that theme with certain adaptations and modifications. It was contended that it was an infringement of her copyright. The Division Bench of the madras High Court, speaking through Veeraswamy, C. J. has held that the respondent''s copyright has been infringed by reproduction of the incidents by means of cinematograph film and confirmed the injunction issued accordingly.
34. IN D. Narayana Rao v. U. Rajendra Prasad, wherein the second defendant herein is the petitioner, was also a case relating to substantial user of ''draupadi Mana Samrakshanam'' for producing ''devadasu Malli Puttaadu'' by the script writer, the second defendant herein. It was contended that the offence of piracy punishable u/s 51 read with Section 63 of the Act was committed; that a complaint was laid and the petitioner therein (the 2nd defendant herein) contested; that no prima facie case has been made out. While considering the scope thereof, Punnayya, 1 has held that the petitioner therein has pirated in his picture of the scene ''mono Action of Duryodhana'' and it infringed copyright of the respondent therein. It is an authority for proposition that short duration of play is not a ground to reject piracy. In the light of the above law and facts, I hold that on an overall consideration of the evidence on record taking into view the impressions I have gathered on seeing the picture (Gorintaku) and reading both the novels, Exs. A-II and b-1, I have no hesitation to conclude that Ex. B-1 is not the basis for producing gorintaku; the basis is Ex. A-11 novel, "ide na Nyayam". They substantially adapted the novel as basis and made the cinematograph film gorintaka with minor or inconsequential alterations to suit the taste of the cinegoing public. Equally, ''mehendi Rang Layegi'' is admittedly based on the picture Gorintaku. The first defendant distributed the picture. Thereby the appellants have infringed the copy right of the respondent in Ex. A-11 ''ide na Nayam'' under Section, 51 of the Act and thereby became liable for action u/s 55 of the Act.
35. IT is next contended by Sri Chandrasekhara Rao that the Court below has got discretion, and the view taken by the Court below is proper and when two views are possible, it is not always open to the appellate Court to take a different view. In Devakka v. Giraddi, a Division Bench of the bombay High Court held that where a case is equally balanced it is for the appellant to show that the judgment of the Court below is clearly wrong. It is not enough for him to show that the judgment may be wrong by merely pointing out that the judgment may be just the other way.
36. IN Nabakishore Mandal v. Upendra Kishore Mondial, Lord Buck-master, speaking for their Lordships of the Privy Council held that the burden of showing that the judgment appealed from is wrong lies upon the appellant If all he can show is "nicely balanced calculations" which lead to the equal possibility of the judgment on either the one side or the other being right, he his not succeeded. In Rehmatunnisa Begum v. Price Sir Laurance Jenkins speaking for the Board held that the appellate Court has to see that the trial Court would not have acted capriciously or in disregard of any legal principles in the exercise of its discretion. This Court in Satyanarayana Murthy and Ors. v. N.V. Balakrishna Murthy held that while exercising the discretion of equitable jurisdiction, the Court has to consider the circumstances whether it would warrant dissolution of a partnership or the relief can be granted without dissolving the firm, without jeopardising the rights of the retiring partners.
37. THUS, it is well settled that the appellate Court while exercising interference with the discretionary jurisdiction exercised by the trial Court, should keep in view all the facts and circumstances, and if the Court finds that the view taken by the trial Court is evently balanced, then unless it finds that the Court has capriciously orartitrarily exercised its discretion, it would be slow to disturb the discretion exercised by the trial Court in substitution of its own discretion. In such an event, it must be held that the appellant has failed to dislodge the findings recorded by the Court below successfully impeaching its incorrectness or invalidity. Considered from any perspective, i have no hesitation to hold that the trial Court has properly considered all the facts and circumstances and evently weighed the pros and cons and held that the appellants have infringed the copyright of the respondent''s novel "ede na Nyayam" and accordingly awarded damages.
38. IT is next contended that the respondent has sold her copy rights in a novel by name "bali Peetham" which secured her national award, for a sum of Rs. 10,000/- to make film and therefore it would form the measure of basis to award damages, therefore, it is not a case warranting issuing of injunction and a decree for Rs. 10,000/- towards damages would meet the ends of justice. The question, therefore, is whether the Court below is justified in issuing injunction and also awarding damages. If so, what is the quantum to which the respondent is entitled. Section 55(I) of the Act provides that:
where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right.
(Proviso is not necessary. Hence omitted)
39. THUS, on finding that a copyright in any work has been infringed, the owner of the copyright shall be entitled to the remedies by way of injunction, damages, accounts, etc. In "an Introduction to Equity" by keeton, 4th Edition at page 315, it is stated that the Court has power under judicature Act, to award damages in lieu of injunction where the injury is threatened but has not yet been committed. In "modern Equity", by Hensbury and Mandslay, 11th Edition at page 121, it is stated thus : "damages are allowed to be awarded in lieu or in addition to an injunction." at page 122, it is stated:
if the plaintiff can establish that his rights have been infringed, he is prima facie entitled to an injunction. Damages will only be awarded in lieu, in special circumstances; otherwise the defendant would be allowed to "buy" the right to continue the wrongful act. The circumstances under which the alternatives could be awarded are stated at pa e 123 thus : (1) Injury is small; (2) Injury is capable of being estimated in monetary terms; (3) Injury would be adequately compensated by a small payment; (4) It would be oppressive to grant an injunction.
In Ashburner''s "principles of Equity", 2nd Edition, at page 41, it is stated thus:
the Court of equity will not interfere where the law affords an adequate and sufficient remedy.
In Snell''s Principles of Equity, 21st Edition, at page 657, the learned author has stated that jurisdictions are commonly granted against infringers ot copyrights. These branches of law are now statutory.
40. IN American Cynamid v. Etmicon Ltd the House of Lords, is considering the question whether injunction can be granted, held that if the plaintiff can be adequately compensated at trial, no injunction can be issued. If the defendant can be adequately compensated by the plaintiffs undertaking to pay damages then an injunction should be ordered. The grant of relief u/s 55(I) is a discretionary power of the Court, as a court of equity. Therefore, in an appropriate case, it is the duty of the Court to grant the relief in tune with the facts and circumstances on record-whether injunction and damages would meet the ends of justice or either of them would be ordered. Where damages are ordered, the question of directing to render account does not arise. Therefore, the question is whether it is a case to award injunction and damages. The Court below granted both. It is seen that under the suit notice, the primary consideration appears to be that the respondent is satisfied if an apology is tendered by the appellants. The accounting appears to be only incidental. It is already seea that the copy rights in the earlier novel "ball Pretham" which won her national award itself was sold for a sum of Rs. 10,000/ -. Pending the suit, no injunction was issued. Therefore, though in a case where injunction will be the appropriate remedy, the appellants can buy up the infringement by paying compensation and perpetrate the infringement thereof, but when the respondent herself has chosen to sell her copyright for a ''certain sum, and production of a cinematograph film involves considerable expenditure, running into lakhs of rupees, though it infringes the copyright, grant of injunction may not appear to be the appropriate remedy. It works undue hardship on the producers. Therefore, adequate compensation would meet the ends of justice in such circumstances. The appellants (defts. 1 to 5) were ordered to pay damages of Rs. 30,000/- jointly and severally; and Rs. 20,000/- was ordered to b; paid by the 7th defendant. Admittedly defendant No. 7 purchased the copyrights of the infringing film; thereby he also stands along with the other defendants-appellants. The respondent did not file any cross-objections for disallowing her claim of Rs. 50,000/- against each of them. Considered from this perspective, she appears to have been satined with the grant of damages of Rs. 30,000/- against appellants-defendants 1 to 5 jointly and severally and Rs. 20,000/- against the 7th defendant. In my view, it would be sufficient damages to mitigate the infringement of the work of the respondent. Accordingly. 1 dissolve the perpetual injunction restraining defendants 3 to 5 and 7 to exhibit the infringed films ''grintaku'' and "mehendi Rang Laayegi" but confirm the injunction to produce any cinematograph film in future in any other language infringing the copyrights in ''ide na Nyayam'' and also confirm the decree of damages.
41. THE appeals, C.C.C.A. Nos. 65 and 87 of 1983 are allowed in part as indicated above and C.C.C.A. Nos. 75 and 77 of 1983 are dismissed. In the circumstances, the parties are directed to bear their own costs in all the appeals.
42. C. MP. No. 4471/83: Sri Ayyapu Reddy, learned Counsel for the second appellant requested this Court to expunge certain remarks made by the Court below against his client as stated in the petition. Normally, in a case of expunging remarks, the matter is to be remitted to the Judge concerned for consideration. But in this case, since the learned Judgs who pronounced the judgment is no longer occupying the office as the District judge, I have considered it and, in fairness, Sri Chandrasekha Rao, also did not object to expunge the remarks. Even otherwise, I am satisfied that the strictures are not warranted on the facts and circumstances. Accordingly, the strictures passed against the second defendant by the Court below are expunged. The petition is accordingly ordered. No costs.
