Bharat Matrimony Com. P. Ltd. Vs People Interactive (I) Pvt. Ltd.

@JUDGMENTTAG-ORDER

1. These applications are filed seeking ad interim injunction restraining the respondents from infringing of copyrights and from passing off their "Phone Validation Services" as that of the plaintiffs service.

2. The applicants/plaintiffs have contended in their applications that the applicant, who is a pioneer for matrimonial alliance, created a system; "Assured Contact-Phone Verification Service" through its employees during the course of employment. The application plaintiff has become the owner and proprietor of the copyright in the system which is inbuilt in the applicant''s website. The applicant spent several lakhs of rupees developing and implementing the unique feather "Assured Contact-Phone Verification Seryics. The unique feature has become'' synonymous with the applicant''s website Bharat Matrimony com. The respondent''s website is a direct competitor of the applicant''s website under the name "My Contact Details". The respondent is offering the very same identical feature to the customers. The same step by step procedure is adopted by the respondent in its website, slavishly imitating the applicant''s unique feature. The respondent cannot lavishly copy the features of the applicant which was invented and conceptualized by it. The respondent is misleading the members of the public utilizing the aforesaid unique feature in the course of its trade. The applicant has suffered irreparable loss and damage to its business on account of the wrongful activity of the respondent. The applicant is the first owner of the copyright in the Computer Programme for their unique service. Therefore, the applicant has sought for the aforesaid reliefs.

3. The respondent has contended that the applicant''s "Assured Contact-Phone Verification Services" does not fall within the defined category of protected work under the Copyright Act. The copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, invention of discovery, regardless of the form in which it is described, illustrated or embodied. The applicant failed to identify the particular employee who purportedly created the "Assured Contract-Phone Verification Service". No affidavit was filed by the employee, who allegedly invented, to show prima facie the authorship of the system service. Interactive Voice Response (IVR) system is nothing but a system where a user hears a recorded voice after dialing a particular number and presses an appropriate button in accordance with the instructions provided by the recorded voice. Many Corporates are broadly using the IVR system. The collection of personal information of person seeking to become a member of a website is not either innovative or an improvement of customer friendliness. This is just a matter of common sense and is a standard practice of all website and online service providers. Therefore, the respondent has sought for dismissal of the aforesaid applications.

4. Learned Senior Counsel appearing for the appellants would submit that the respondent, who has hijacked the core idea of the system development using the Interactive Voice Response, has set up an identical platform causing huge loss to the business of the applicant. The copyrights of the mark illustrated has been utilised by the respondent having given a go-by to their outmoded system with some cosmetic changes to the "Assured Contact-Phone Verification System". Therefore, the learned Counsel appearing for the applicant would submit that the slavish imitation of the system invented by the applicant is an infringement of the copyright acquired by the applicant investing so much of money on its employees. Therefore, he would submit that the applicant is entitled to the relief as sought for.

8. Mrs. Nalini Chidambaram, learned Senior Counsel appearing for the respondents would submit that no idea or concept can be copyrighted. There is no uniqueness in the procedure adopted by the applicant. The Corporate Sectors and Banking Industries are lavishly using the IVR system. If the applicant is permitted to monopolize such a common system, there will not be any invention in the future Computer Programmes. Such a procedure will have to be necessarily adhered to cater to the needs of the public who seek matrimonial alliance. Further, the procedure being followed by the respondent is not the photocopy of the system followed by the applicant. Therefore, she would submit that the applications are liable to be dismissed.

6. The Copyright like Patent Right is a monopoly restraining the public from lavish imitation of the invention of an individual. The right to monopolize a particular innovation of an individual preventing others from unfairly availing themselves of the scientific, literary or an artistic work by an individual is recognized under the Copyrights Act. "Though Shall Not Steal" is the basic intention of the principles of copyright. Misappropriation of the original, literary or artistic work created out of the labour skill and copyright of another is prohibited under the law of Copyrights. Proviso (a) to Section 17 of the Copyrights Act recognizes the ownership of copyright of the employer of an employee who, during the course of his employment created an original, literary, dramatic or artistic work. The employer, who is recognized u/s 17 of the Copyrights Act, 1957 as the rightful owner by the proprietor of the Copyright of a work created by his employee shall prove that this employee made the said literary, dramatic or artistic work. In this case, we find that not even an affidavit was filed by the employee of the applicant to show prima facie that a system called "Assured Contract-

Phone Verification System" was created by the employee of the applicant.

7. Of course, as per Section 2(o) of the said Act, Computer Programmes and compilation including Computer Data Bases fall under the category of literary work.

8. The applicant would contend that making use of the security system, IVR and a software, a new system called "Assured Contract-Phone Verification Service" was made by its employees which has become the property of the applicant.

9. As rightly pointed out by the learned Senior Counsel appearing for the respondent, a security system employed by the applicant cannot be held as the unique innovation of the applicant through its employees. Likewise, the IVR system which is lavishly used by the Corporates, Banking Industries, Railways, etc. cannot be monopolized by the applicant on the ground that the IVR system was used to create a novel system called "Assured Contract-Phone Verification System" by the applicant. IVR system is a standardized one which can be obtained by any person from software vendors in the country on payment of necessary fee.

10. It appears that there is nothing unique in the system called "Assured Contact-Phone Verification System" alleged to have been created by the employees of the applicant. If such a common system which is in vogue is permitted to be monopolized by one individual, the growth of such systems will be jeopardized. Further, the idea or concept of such Computer Programmes cannot be copyrighted.

11. The learned Senior Counsel appearing for the applicant referred to an authority in Anil Gupta and Another Vs. Kunal Dasgupta and Others, . That was a case where the concept developed and evolved by the plaintiff on circulation to the defendant was appropriated by the defendant violating the confidentiality as recognized u/s 16 of the Copyrights Act, 1957. A concept evolved for a TV reality show which was registered under the Copyrights Act will have to be protected from public domain, it has been held therein. In the instant case, a concept in a Computer Programmes is sought to be copyrighted. Further, it is not a case where the concept was exchanged by the copyright owner with the respondent. Therefore, the aforesaid authority does not apply to the facts and circumstances of the case.

12. On a perusal of the other authority in Urmi Juvekar Chiang Vs. Global Broadcast News Limited and Network 18 Fincap Private Limited, it is found that in a similar case, the Bombay High Court has taken an identical view. That was also a case where there was breach of confidentiality in relation to a concept which was handed over to the defendants.

13. In yet another case in Celador Productions Ltd. Vs. Gaurav Mehrotra and Another, a form of telephone quiz programme called Kaun Banega Crorepati was hijacked by the defendant. The Court, having found that the logos, names and identical photographs of the presenter of the defendant was deceptively found similar to that of the plaintiff, granted an order of injunction. In the instant case, a common concept which is in vogue in the Corparate Sector is sought to be copyrighted.

14. In Zee Entertainment Enterprises Ltd. Vs. Mr. Gajendra Singh and Others, , the Bombay High Court negatived the plaintiffs claim for copyright over a cinematograph film embodying television game show as it was found that the plaintiff could not establish that the film of the game was prepared by the first defendant during his employment under the plaintiff. But, the facts and circumstances of the aforesaid case is totally different from the fact situation arisen in this case.

15. The U.S. Court of Appeals, Third Circuit, in its judgment in Whelan Associates Inc. v. Jaslow Dental Laboratory Inc., ET AL delivered on August 4, 1986, has held that the mere idea or concept of a Computerized Programme for operating a dental laboratory would not in and of itself be subject to copyright. Copyright law protects the manner in which the author expresses an Idea or concept, but not the idea itself.

16. Therefore, the applicant herein cannot claim copyright for his idea or concept. Further, it is found that the applicant''s idea or concept does not have uniqueness or originality.

17. The Calcutta High Court in Barbara Taylor Bradford Vs. Sahara Media Entertainment Ltd., has held that the law protects only the originality of expression. But, such original of artistic works shall not be overprotected curbing down the future artistic works. There is a caveat that if plots and characters are allowed to be protected by copyright, original artist could not write anything ''original'' at all.

18. The Court finds in the instant case that there appears to be no originality of expression in the system alleged to have been adopted by the applicant.

19. In 99 Kenrick and Co. v. Lawrence and Co. (1890) L.R. 25 Q.B.D. 99, it has been categorically held as follows:

The first question which arises is, what is and what is not the nature of the right conferred under the Act upon the 102 author by the registration of the drawing of which he is the author. It is perhaps easier to say what it is not than to give a satisfactory definition of what it is, and I think that I am upon very safe ground in saying that the mere choice of subject can rarely, if ever, confer upon the author of the drawing an exclusive right to represent the subject, and certainly where the subject chosen is merely the representation to the eye of a simple operation which must be performed by every person who records a vote there cannot possibly be an exclusive right to represent in a picture that operation.

A simple operation which could be performed by another person for that matter cannot be copyrighted. Every matrimonial website has to adheres to this sort of simple operation which cannot be monopolized.

20. The applicant has failed to establish prima facie that an identical platform using Interactive Voice Response, a unique one developed by its employee was imitated by the respondent. After all, it is only an idea or concept which cannot be copyrighted. Further, the matrimonial. com is bound to use such a common system to cater to the needs of the matrimonial alliance seekers. A very Common IVR system which is in vogue in the other Corporate Sectors and Banking Industries has been used in the "Assured Contract-Phone Verification System" adopted by the applicant.

21. In view of the above, the Court finds that the applicant has failed to establish a prima facie case for grant of temporary injunction as sought for. If temporary injunction is granted in favour of the applicant during the pendency of the suit, much hardship will be caused to the business of the respondent. The balance of convenience is found only in favour of the respondent. Therefore both applications stand dismissed.