Delhi District Court
In The Matter vs Dr. M.Y. Khan on 28 July, 2007
(1)
IN THE COURT OF PAWAN KUMAR JAIN
ADDITIONAL DISTRICT JUDGE, FAST TRACK COURT, DELHI
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Old Suit No. : 1357/96
New Suit No. : 513/06
Date of institution of case : 25.05.96
Date of transfer of case : 02.12.06
Date of decision : 28.07.07
IN THE MATTER :
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Sh. Yashwant Kumar N. Bhambhani,
S/o Sh. N.C. Bhambhani
Aged about 24 years
R/o R-733, New Rajinder Nagar,
New Delhi-110060.
.........Plaintiff
Versus
1. Dr. M.Y. Khan,
S/o Not known.
R/o B-160, Zakir Bagh,
Okhla, New Delhi-110020.
Also available at :-
Department of Financial Studies,
University of Delhi,
South Campus,
Benito Jaurez Road,
Dhaula Kuan,
New Delhi.
2. University of Delhi
(2)
Through its Vice-Chancellor,
available at its
Principal Administrative Office at
University of Delhi Campus,
Office of Vice-Chancellor,
Delhi-110007.
3. Department of Financial Studies,
A department of Delhi University,
South Campus,
Benito Jaurez Road,
Dhaula Kuan,
New Delhi.
Through its Heard of the Department
4. The Controller of Examinations,
University of Delhi, South Campus,
South Campus,
Benito Jaurez Road,
Dhaula Kuan,
New Delhi.
Also available at :
University of Delhi,
Through its Vice-Chancellor,
available at its principal Administrative
office at University of Delhi Campus,
Office of the Vice-Chancellor,
Delhi-110007.
5. M/s. Tata Mcgraw-Hill Publishing
Company Ltd.
A company incorporated under the
provisions of the companies Act 1956
having its office at 4/12, Asaf Ali Road,
New Delhi-110002.
.......Defendants
(3)
SUIT FOR PERMANENT INJUNCTION, DECLARATION
AND DAMAGES
Present : Sh. Ashwani Matta, Sr. Advocate with Joydeep Sharma,
Ld. Counsels for plaintiff.
Sh. Sanjay Jain, Sr. Advocate with Sh. Sunil Aggarwal,
Ld. Counsels for defendant no.1.
Ms. Ritu Chabra, Ld. Counsel for defendant no. 5.
Sh. Pawan Aggarwal,Adv. for defendant no. 2 to 4.
***********************
JUDGMENT
1. The epitome of the plaint is that plaintiff had taken admission for the course of Master of Finance and Control (hereinafter referred as MFC Course) in the year 1994 conduced by South Delhi Campus, a unit of Delhi University. Defendant no.1 is one of the professors of the plaintiff. Defendant no. 3 is the department of said course while defendant no. 4 is the Controller of Examination. Defendant no. 2 is the University. Defendant no. 5 is the publisher who published the book in question containing the impugned article.
(4)
(i) It is averred that during MFC Course, an assignment was entrusted to the plaintiff to present a paper on Industrial Development Bank of India (IDBI). Accordingly, plaintiff had prepared a paper on the said topic independently. It is recited that said article was original literary work of plaintiff and was authored by him, thus plaintiff has a copy right over the said article. After printing of the said article, same was circulated in March, 1995 among the students for the purpose of class discussion and seminar and same was also made available to defendant no.1 by giving a copy to him, thus the said article was published for the purpose of Copy Right Act.
(ii) It is alleged that on 20.05.96, plaintiff had seen a book under the title "Indian Financial System" authored by defendant no.1 and published by defendant no.5. Plaintiff shocked and aghast to see a chapter in the said book on 'Development Bank and Financial Institution', whole subject matter pertaining to IDBI, segment pertaining to direct or indirect Financial Assistance Scheme appearing from pages 16.18 to 16.29 were virtual re-write of plaintiff's article. Accordingly, plaintiff (5) purchased the said book. On comparison, he found that sequential pattern of both the writings is also virtually similar, if not same. It is averred that defendant no.1 had no right to copy the original literary work of plaintiff without his consent, thus the action of the defendant no.1 amounts infringement of copy right and also of gross breach of trust.
(iii) It is averred that defendant no.4 being controller of the examination had obtained the article for the purpose of evaluation, thus there was a relationship of trust and responsibility between them. It was the responsibility of defendant no.4 to prevent any misuse of all papers/thesis/articles submitted by the plaintiff to him. Similarly, defendant no. 2 and 3 are jointly and severally liable being University of Delhi and department of the said course. It is further stated that defendant no. 5 is liable as it had published the impugned article in the book titled "Indian Financial System". It is further recited that University Authority is also liable for the loss and damages caused to the plaintiff for infringement of his copy right. In the present case, plaintiff has claimed damages to the tune of Rs. 5 lakh for the infringement of his copy right.(6)
(iv) With these averments, plaintiff has prayed for following reliefs :-
(a) Award a joint and several decree of damages in favour of the plaintiff and against all the defendants in the sum of Rs.5,00,000/-.
(b) Grant a decree of perpetual injunction or such other injunction/order or direction, restraining the defendants Nos. 1 & 5 and their servants, employees and agents from in any manner publishing and/or printing any further or circulation, selling, distributing, marketing, exporting, duplicating, making available to the public any further copies of the title :INDIAN FINANCIAL SYSTEM."
(c) Grant a further decree of perpetual injunction or such other injunction/order or direction, restraining to defendants Nos.1 to 4 and their servants, employees and against from in any manner dealing, destroying or parting with the possession of the entire answer sheets/thesis/articles/papers submitted by the plaintiff for internal assessment/evaluation, to the defendants Nos. 1 to 4 for the second semester of Part-I of the M.F.C. Course undertaken by the plaintiff with the defendants Nos. 2 and 3.
(d) Grant a further decree of mandatory injunction or such other injunction, order or directions directing the defendants no.5 to disclose on affidavit the total number of copies of the said title "INDIAN FINANCIAL SYSTEM" that may have been printed, the commercial and other arrangements made by them and or by their agents with defendant no.1 and also with their distributors, wholesalers, and dealers and the total royalty proceeds paid and promised to be paid by them to the defendant no.1 and the total collections made by them thus far in the sale, circulation, marketing, distribution, publication or export of the offending article.
(7)
(e) Grant a decree of declaration declaring that the plaintiff is the owner of the copyright in written material forming part of pages 16.18 to 16.29 in title "INDIAN FINANCIAL SYSTEM" and in that behalf.
2. Defendant no.1 refuted the claim of plaintiff by filing a separate written statement wherein preliminary objection was taken that the alleged literary work is a verbatim copy of already published material released for public information by IDBI and the same was further published by Nabhi Publication. It is further stated that plaintiff has failed to establish that the alleged work was ever published. On merits, defendant no.1 denied all the allegations leveled by the plaintiff and further stated that students of this course have to prepare as many as six papers in one semester of 3-4 months, thus it is not expected from the student that he or she would be in a position to function as a Research Scholar or to prepare any original writing/thesis in such a short time. The papers presented by the students in class room are returned to them after presentation is over and assignments were evaluated. It is recited that defendant no.1 is not aware on which topic, plaintiff had presented his paper in the class room. It is emphatically denied that plaintiff had made available copy of alleged article to him at any point of time or (8) the same was distributed among the students. It is further stated that the alleged work is merely a reproduction from two earlier published information already available in the market and the same is merely a informative material pertaining to various schemes and as such is not copyrighted or copy-rightable material. It is recited that his book in question comprises of 19 chapters and out of these 19 chapters, one chapter running in 30 pages is in dispute. Out of these 30 pages plaintiff disputed only 11 pages. The said 11 pages is mere reproduction of IDBI and Nabhi Publication, which were published much prior to March, 1995. It is stated that plaintiff is not the author of alleged work and the material was borrowed from the common source, which is not subject matter of any copyright. It is further averred that material submitted before University for evaluation does not vest any copyright in the person appearing in and writing for the examination.
3. Defendant no. 2 to 4 countered the claim of plaintiff by filing their joint written statement wherein they denied each and every allegation leveled by the plaintiff and further stated that if a student submits any written assignment/paper, the same is (9) returned to the student after evaluation and department/university does not retain the same. Consequently, the university had no record of any thesis/article/paper submitted by the plaintiff for internal evaluation. It is further submitted that defendants have never permitted any answer-sheet/thesis to be misused by anyone and further submitted that answer-sheets are used to be destroyed after three months from the date of declaration of result as per rules and regulation of the university. It is further recited that defendant no.4 is concerned with the written examination conducted by the university and has no concern with the articles or thesis or papers submitted by the students for internal assessment.
4. Defendant no. 5 also refuted the claim of the plaintiff by filing its separate written statement wherein it is stated that plaintiff has filed the present suit to settle his personal score with the defendant no.1 and impleaded defendant no.5 just to harass him. It is stated that author of the book i.e defendant no.1 had represented that all the topics bear his own independent labour and skills and all the chapters containing the material are originating from his independent work except for this part (10) where he had discussed various schemes floated by various Financial Institutions. It is stated that defendant no.5 had acted bona fide in publishing the material submitted by defendant no.1. There was no negligence on the part of defendant no.5 at the time of accepting the publication work from defendant no.1. It is further averred that the present suit is without any basis as disputed material is derived from various schemes released by IDBI and source material i.e scheme in question is for common and unrestricted consumption of public bearing no copyright implication or claimed in favour of anyone.
5. Plaintiff filed the replications to the said written statements wherein he denied the version of defendants and reasserted and reaffirmed the averments made in the plaint.
6. On 10.01.2000, following issues were framed :-
(1) Whether there was any fiduciary relation
between the plaintiff and the defendant
No.1. ? OPP
(2) Whether the plaintiff is the author of
literary work claimed by the plaintiff and
is protected under the copyright Act
(11)
1957 ? OPP
(3) Whether the defendants have violated
the copy right reserved by the plaintiff ?
OPP
(4) Whether the plaintiff is entitled to obtain
injunctions against the defendants ? OPP
(5) Whether the plaintiff is entitled to decree
for damages ? OPP
(6) Whether the plaintiff is entitled to decree
for damages ?
(7) Relief.
7. To prove his case plaintiff has examined himself as PW-
1. Defendant no.1 examined himself as DW-1 and defendant no. 5 examined Sh. Bharat Chawla as D5/W1. Though defendant no. 2 to 4 had filed the affidavit of professor Sh. Munish Kumar and S.K. Sethi, Ex. Dy. Controller (Examination) in support of their case yet their affidavit were not tendered in evidence, thus the same cannot be read in evidence.
8. ISSUE NO.1
(i) Onus to prove the said issue was upon the plaintiff. (12)
Ld. Counsel for defendants submit that this issue is irrelevant and not pressed for the same.
Ld. Counsel for plaintiff submits that he has no objection if the said issue be dropped.
In view of submissions of both the parties, this issue is dropped being irrelevant.
9. ISSUE No.2 Onus to prove the said issue was upon the plaintiff.
(i) Ld. Counsel for plaintiff vehemently contended that plaintiff is the sole and independent author of the writing/article in issue as plaintiff had prepared the impugned writing/article independently and exclusively after doing research on the relevant topic. It is further urged that after preparing the impugned writing/article, same was submitted to the defendant no.1 for evaluation for the internal assessment. It is also argued (13) that plaintiff had circulated the impugned writing/article among students and professors including defendant no.1 for the purpose of class discussion and seminar. It is further contended that the said writing/article is the original literary work of the plaintiff.
(ii) Ld. Counsel for defendant countered the said contentions sagaciously by arguing that there is no iota of evidence on record that plaintiff was the sole author of the alleged writing/article. It is argued that even in his deposition, plaintiff admitted that the alleged writing was prepared by more than one person. It is further denied that the alleged article was ever published by the plaintiff, which may attract the provisions of Copy Right Act. Ld. Counsels for defendants refuted the contention of the plaintiff by arguing that the alleged writing is not the original work of the plaintiff rather plaintiff had copied the same from the material, which is available to the public at large.
10. First polemical issue emerges for adjudication is as to whether plaintiff is the sole and independent author of the impugned writing/article ?
(14)
(i) According to the plaintiff's version, different topics were allotted to a group comprising of 5 students including plaintiff and all students had completed their assignments by writing their paper and thereafter all writings were compiled and binded in the form of thesis, which was submitted for evaluation. In para 15 of the plaint, plaintiff vowed that he had prepared the alleged writing/article containing the impugned portion exclusively and independently. In para 16, plaintiff further claimed that he had prepared the manuscript of the said writing in his own hand-writing and filed certain papers of the said manuscript to establish that he is the author of alleged writing/article. In his affidavit, plaintiff re-asserted and re- affirmed the averments, which he had made in the plaint. However, in his cross examination, he deposed that students namely Gaurav Malhotra, Sumit Kakkar, Richa Kapoor and Nitish Srivastava besides himself were doing research on the assigned topic as a group. He further admitted in his deposition Sumit Kakkar and Gaurav Malhotra were doing their research on the subject of ICICI and IFCI respectively while remaining three students including plaintiff were doing their research on IDBI. (15) It means that three students had prepared the paper on the topic of IDBI. There is nothing on record to show that other two students had prepared their separate papers on IDBI. It means that all three students including plaintiff had prepared the impugned writing/article. If it is so, the alleged writing/article was authored by three persons namely Richa Kapoor, Nitish Srivastava and the plaintiff. This proves that plaintiff was merely a co-author of the said writing/article and not the sole and independent author as he professed in his plaint.
(ii) If plaintiff is merely the co-author of the alleged writing/article, provisions of section 13 of Copy Right Act come into picture. As per the explanation to sub-section 2 of section 13 of Copy Right Act all authors should satisfy the requirement of section 13(2) of the Act. But in the present case, plaintiff had not uttered even a single word about the other co-authors, rather claimed that he is the sole and independent author of the alleged writing/article. No doubt one of the joint authors can sue for infringement of Copy Right Act and can obtain injunction without joining other authors. But in such a situation the co- author is bound to disclose the fact that writing/article is (16) authored by more than one person and he is merely a co-author. But in the present case, plaintiff did not disclose this fact and professed himself as the sole and independent author of impugned writing/article. The deposition of PW-1 to the extent that other three remaining students were doing their research on IDBI is contrary to the averment mentioned in the plaint. During the trial, plaintiff failed to produce any other evidence to establish that plaintiff is the sole author of the alleged writing/article. Considering the on-going discussion, I am of the considered opinion that plaintiff has not come with clean hands before the Court.
(iii) It is urged on behalf of plaintiff that a group of 5 students had submitted the thesis containing the alleged writing/article for the purpose of internal assessment and plaintiff had obtained 17 out of 30 marks. It is argued that this also establishes that plaintiff is author of the said writing/article.
(iv) It is admitted case of plaintiff that thesis containing the alleged writing/article was prepared for the internal assessment. In his plaint, it is categorically admitted by the plaintiff that 30 (17) marks were earmarked for internal assessment, which comprises of class room participation, seminar, term paper, tests, viva- voice and attendance. It means 6 activities were included for the internal assessment. Thus, merely fact that plaintiff had secured 17 marks in the internal assessment does not ipso facto either prove that plaintiff is the sole author of impugned writing/article or that plaintiff had submitted the impugned writing/article with defendant no.1. Submitting of term paper for the internal assessment is only one activity out of said 6 activities and if in case student fails to submit his paper, even then that student would secure some marks in the internal assessment/evaluation for other five activities. Thus, merely fact that plaintiff had scored 17 out of 30 marks does not establish that either he had written the said writing/article independently or had submitted the same with defendant no.1.
11. Next conundrum issue arises as to whether plaintiff had submitted thesis containing the alleged writing/article either with defendant no.1 or with any other defendants ?
(i) In para 15 of his plaint, it is claimed by plaintiff that the (18) said thesis containing the impugned writing/article was submitted to the defendants. It is pertinent to mention here that in para 15 plaintiff did not clarify to whom the said thesis was deposited for internal assessment/evaluation. From para 19-20 of plaint, it appears that the said thesis was submitted to defendant no. 2 to 4. In his entire plaint, plaintiff nowhere categorically mentioned that the said thesis was submitted to defendant no.1 for internal assessment. However, from para 18 of the plaint, it appears that the copy of writing/article was given to Mr. M.Y. Khan during the circulation of the same among the students. But he did not mention specifically in his entire plaint to whom the same was entrusted for internal assessment. All the defendants in their written statement denied the fact that plaintiff had submitted either the alleged article or thesis containing the alleged writing/article to them for internal assessment. Thus, the onus was upon the plaintiff to establish the fact that the alleged thesis containing the impugned article or the alleged writing/article was ever submitted either to the defendant no.1 or any other defendants. In his cross examination, plaintiff deposed that the complete thesis containing the impugned writing/article was entrusted to Mr. M.Y. Khan However, in his nest breath, he (19) deposed that he did not recall who submitted the same with Mr. M.Y. Kahn but unequivocally admitted that he had not submitted the same to Mr. M.Y. Khan, defendant no.1. Thus, his deposition is not sufficient to prove that the thesis containing the alleged writing/article was submitted to Mr. M.Y. Khan, defendant no.1. During the trial, plaintiff did not examine any other student of his group to establish that the alleged thesis containing the impugned writing/article was ever entrusted to defendant no.1. Similarly, plaintiff also failed to bring any witness from defendant no.3 to establish that the same was submitted in the department. In the absence of any other concrete evidence on record, I am of the opinion that plaintiff failed to establish that the alleged thesis containing the impugned writing/article was submitted to defendant no.1.
12. The next contentious question arises for adjudication is as to whether plaintiff had published the alleged writing/article in accordance with section 3 of Copy Right Act. In para 18 of the plaint, it is recited that in March, 1995 plaintiff had circulated the said article among his colleagues for the purpose of class discussion. In his cross examination, plaintiff (20) unambiguously admitted that the said article was not published for general consumption except that copy of the same was circulated among the students. According to section 3 of the Copy Right Act, publication means making the work available to public either by issuing the copy or communicating the work to the public. During the trial, plaintiff failed to produce any evidence that students were required to circulate the copy of their paper among the class mates for the purpose of discussion or seminar. It is pertinent to mention here that when the alleged writing/article was submitted it was merely a part of thesis which was allegedly prepared by a group of students for internal assessment. There is nothing on record to show that the alleged thesis was circulated among the class mates for the purpose of class discussion or seminar. Similarly, there is nothing to show that the other students who prepared the paper on ICICI and IFCI had also circulated their papers among the students for the purpose of class discussion etc. The said version of the plaintiff also does not inspire confidence because the alleged paper was prepared for the purposes of internal assessment, it is highly unbelievable that the student who had prepared the paper for the internal assessment would circulate the same among his class (21) mates for the purpose of discussion especially when there is no such requirement. There is no evidence to show that the alleged paper was ever discussed in the class room. No doubt under section 3 of the Copy Right Act if the work is made available to the public amounts publication of the work and the actual sale of copy of work is not necessary. But in the present case, there is no evidence that plaintiff had made his work available to the public. There is no evidence that the alleged paper/writing was ever kept in library for the reference of students at large. Assuming for the sake of argument that plaintiff had given the copy of the same to his near and dear but it does not mean that the work was published because the distribution of copies among his nears and dears does not mean the work was made available to the public.
(i) Considering the above discussion, I am of the opinion that plaintiff failed to establish that work was published in accordance with section 3 of the Act.
13. The next moot issue arises for the adjudication is as to whether the alleged writing/article was the original literary work of the plaintiff or not ?
(22)
(i) In his plaint, plaintiff had emphatically professed that the impugned writing/article was his original work and he had prepared the same after doing research on the assigned topic on IDBI. As per the plaintiff's version, he had prepared paper on IDBI running into 44 pages but in the present suit only pages 21 to 44 except page no. 37 are in dispute. In the impugned writings, plaintiff had discussed 11 different schemes of IDBI including Assistance Credit Scheme which is on page no. 37 and is not in dispute. The real question is as to whether the alleged writing/article is the original work of the plaintiff or not ?
(ii) Ld. Counsel for plaintiff has strongly relied upon the judgment title Macmillan & Company, Limited Vs K. and J. Cooper, AIR 1924 Privy Council 75, wherein it is held that "The word "original" does not mean that the work must be the expression of the original or inventive thought. Copyright Acts are not concerned with the origin 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 (23) another work - that it should originate from author."
(iii) It is further held that :-
"An abridgment of an author's work means a statement designed to be complete and accurate of the thoughts opinions and ideas by him expressed therein, but set forth much more concisely in the compressed language of the abridger. A publication the text of which consists of a number of detached passages selected from an author's work, often not contiguous, but separated from those which precede and follow them by considerable bodies of print knit together by a few words so as to give these passages, when reprinted, the appearance as far as possible of the continuous narrative, is not an abridgment at all. It only expresses, in the original author's own words, some of the ideas, thoughts and opinions set forth in his work. And it is obvious that the learning, judgment, literary taste and skill requisite to compile properly and effectively, an abridgment deserving that name would not be at all needed merely to select scraps taken from an author and to print them in a narrative form.
To constitute a true and equitable abridgment, the entire work must be preserved in its precise import and exact meaning, and then the act of abridgment is an exertion of the individuality employed in moulding and transfusing a large work into a small compass ; thus rendering it less expressive and more convenient both to the time and use of the reader. Independent labour must be apparent, and the reduction of the size and work by copying some of its parts and omitting others confers no title to authorship, and the result will not be an abridgment entitled to protection. To abridge in the legal sense of the word is to preserve the substance, the essence of the work in language suited to such a purpose, language substantially different form that of the original. To make such an abridgment requires the exercise of mind and labour, skill (24) and judgment brought into play, and the result is not merely copying.
To constitute a proper abridgment the arrangement of the book abridged must be preserved, the ideas must also be taken and expressed in language not copied but condensed. To copy certain passages and omit others so as to reduce the volume in bulk is not such an abridgment as the court would recognise as sufficiently original to protect the author."
(iv) It is further held that :-
"It is the product of the labour, skill and capital of one man which must not be appropriated by another, not the element, the raw material, if one may use the expression, upon which the labour and skill and capital of the first have been expended. To secure copyright for this product it is necessary that the labour, skill and capital expended should be sufficient to impart to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material."
(v) It is further held that :-
"Any new and original plan, arrangement or combination of material will entitle the author to copyright therein, whether the materials themselves be old or new. Whosoever by his own skill, labour and judgment 'writes a new work may have a copyright therein unless it be directly copied or evasively imitated from another's work. To constitute piracy of a copyright it must be shown that the original has been either substantially copied or to be so imitated as to be a mere evasion of the copyright."
(25)
14. In the light of above preposition of law, the impugned writing/article will analysed to ascertain as to whether it is the original work of the plaintiff or not ?
(i) It is admitted case of the plaintiff that he had consulted various schemes of IDBI to prepare the impugned writing/article. As per the alleged article, plaintiff had discussed about 11 schemes of IDBI. Plaintiff has also filed the said 11 schemes during the trial and relied upon. Though, the said schemes were not proved by the plaintiff during the trial yet reliance can be placed on the same as the same were filed by the plaintiff and plaintiff has relied upon the same. It is astonished to analyse that the each and every scheme discussed in the imupugned writing/article is nothing but the reproduction of the original scheme. Plaintiff had not only copied the said schemes verbatim from the original schemes of IDBI but also adopted the same sequence and form of presentation in his article. Even plaintiff has not changed any preposition, articles or verb while preparing the alleged writing/article. In some of the schemes, plaintiff had omitted some of the portion from the original schemes and (26) copied the remaining portion for the purpose of his article. Now, the question arises as to whether the omission on the part of plaintiff to copy the certain portion from the original schemes amounts abridgment of the original schemes ?
(ii) The judgment in Macmillan & Company Limited's case (Supra) elucidates that abridgment of an author's work means the statement designed to be complete and accurate of the thoughts opinions and ideas by him expressed therein, but set forth much more concisely in the compressed language of the abridger. On analysing of the impugned writing/article it becomes abundantly clear that plaintiff had not used his language at all and not even compressed the schemes of IDBI and merely copied the same. Thus, in my opinion the omission made by the plaintiff while copying the various schemes from IDBI does not amount abridgment of the original schemes of IDBI. It is pertinent to mention here that whatsoever plaintiff had omitted from the original schemes, the same are not discussed in the article and whatever portion he had copied, he copied the same completely in all respect from the original schemes. Thus, there is no abridgment of the original schemes. In fact the impugned (27) writing/article is a clear case of copying from the work of public domain.
(iii) If plaintiff had used the various schemes of IDBI as a raw material to prepare his paper/article, it is duty of the plaintiff to establish that the prepared work is different from the raw material. It emerges from the case (Supra) that to secure copyright over the prepared work from the raw material, the quality of prepared work should be of such, which is not possessed in the raw material but in the instant case raw material i.e original schemes of IDBI and the prepared work i.e the impugned writing/article is nothing but the same as plaintiff had not applied his mind except copying it from the various original schemes.
(iv) The judgment (Supra) also elucidates that whosoever by his own skill, labour/judgment writes the new work may have a copyright therein unless it is directly copied or evasively imitated from another's work. In the present case, plaintiff had directly copied the various different schemes on IDBI to prepare his article. Thus plaintiff has no copyright over the alleged (28) writing/article.
15. No originality of thought is needed to sustain a claim to copyright. Under copyright law, ideas are not protected, only skill, labour needed to give any given idea some particular material form, for it is the form in which the work is presented i.e. protected by copyright. That need only be original in the sense that it is all the author's own work. Two compilers covering the same area may produce identical, or nearly identical street directories, two artists or photographers photographing a particular object may produce nearly identical representations, but each is entitled to copyright in his particular representation of the work in question.
........the originality which required relates to the expression of thought, and that the work should not be copied from another work, but should originate from the author.
The copyright is limited monopoly having its origin in protection. But, there cannot be any monopoly in the subject- matter which the author has borrowed from public domain. Others are has liberty to use the same material in which no one has copyright. (relied on Copyright and Industrial Designs by P. Narayanan, IIIrd Edition, page no. 29 & 31 (para 3.23 to 3.24 & 3.31).
(i) It is admitted case of plaintiff that he had borrowed the various schemes from the public domain i.e from IDBI and it is also undisputed fact that no one has a copyright over the said schemes even the IDBI has no copyright over the same. Thus, the said schemes can be used by anybody including by the plaintiff or defendant. Plaintiff cannot claim any copyright over (29) the material, which he had directly copied from the original schemes.
(ii) Pondering the ongoing discussion, I am of the considered opinion that the impugned writing/article is not the original literary work of the plaintiff as he has directly copied the same from the various schemes of IDBI and its imitation does not confer any copyright on the plaintiff. Accordingly, I decide this issue against the plaintiff and in favour of defendants.
16. ISSUE No.3 Onus to prove the said issue was upon the plaintiff.
(i) In the light of my findings of issue no.2, I am of the opinion that defendants have not infringed the copyright of the plaintiff as plaintiff had no copyright over the impugned writing/article. Moreover, it is undisputed fact that plaintiff had borrowed the raw material from various original schemes of IDBI to prepare his article and defendant no.1 has also used the said schemes in his disputed book from page no. 16.18 to 16.29. (30) In his cross examination, plaintiff admitted that defendant no.1 had not copied the impugned writing/article in verbatim but there are few changes here and there and are also few changes in language. This shows that even defendant no.1 had applied his mind while discussing the various schemes of IDBI in his book. On the contrary, plaintiff had not applied his mind at the time of preparing his impugned writing/article as he had directly copied the same from the original schemes.
(ii) Considering the on going discussion, I am of the opinion that defendants have not infringed the copyright of plaintiff as plaintiff had no copyright over the same. Accordingly, I decide this issue against the plaintiff and in favour of defendants.
17. ISSUE No.4 to 6
Onus to prove the said issue was upon the plaintiff. In view of my findings on issue no.2 & 3, I am of the opinion that plaintiff is not entitled for any relief. Thus I decide (31) the above issues against the plaintiff and in favour of defendants.
18. RELIEF.
In view of of my findings on the issue No. 2 & 3, I am of the opinion, plaintiff is not entitled for any relief, thus I hereby dismiss the present suit with cost. As plaintiff has dragged his teacher in a frivolous litigation knowingly well that his work was merely an imitation of the schemes of IDBI and even cursory reading of the plaint manifests that he had some grudge against defendant no.1 and the present suit appears the result of that acrimony, thus, I am of the view that it is a fit case to impose exemplary cost upon the plaintiff. Accordingly, I impose further exemplary cost of Rs.10,000/- payable to the defendant no.1. Decreesheet be prepared accordingly. File be consigned to record room.
Announced in the open court on this 28th day of July, 2007 (Pawan Kumar Jain) Additional District Judge Fast Track Court, Delhi