Delhi District Court
Nidhi Gulati vs Repro Books Limited on 4 June, 2024
IN THE COURT OF MS SAVITA RAO, DISTRICT JUDGE
COMMERCIAL COURT-01, SOUTH
SAKET COURTS, DELHI
CS (Comm) No. : 87/24
CNR No. DLST01-001476-2024
In the matter of :-
1. Dr. Nidhi Gulati
Flat Number 246, CA Apartments,
Paschim Vihar, New Delhi
[email protected]
Also at:
Institute of Home Economics,
University of Delhi
F-4, Hauz Khas Enclave,
New Delhi-110016 ............Plaintiff
Vs.
1. M/s. Repro Books Limited
11th Floor, Sun Paradise Business Plaza
B Wing, Senapati Bapat Marg, Lower Parel
Mumbai, Maharashtra-400013
[email protected]
Also at:
Khasra No. 1319, 22, 172, 911
Village Malpura,
Tehsil Dharuhera, District Rewari
Haryana-123110
2. Amazon Retail India Pvt. Ltd.
Block E, 14th Floor,
Unit Nos. 1401 to 1421,
International Trade Tower, Nehru Place,
New Delhi-110019
[email protected] .........Defendants
Date of institution of the case : 22.02.2024
Date of final arguments : 21.05.2024
CS (Comm) No. 87/2024 1/12
Date of judgment : 04.06.2024
JUDGMENT
1. This is suit for permanent injunction, seeking restrain order for violation and infringement of plaintiff's copyright in her thesis titled as "Construction of Childhood in Cinema" , filed by plaintiff against defendants.
2. Plaintiff, as stated, is working as a professor at the Institute of Home Economics, University of Delhi, who obtained her Doctorate in Philosophy from the University of Delhi in September 2018. During her tenure as Ph.D student, plaintiff was required to submit a thesis for final completion of her Ph.D Program. Plaintiff authored a thesis titled "Construction of Childhood in Cinema"
under the supervision of Prof. Poonam Batra, Department of Education, University of Delhi and submitted the same in April, 2017 and was awarded her Ph.D in September 2018.
3. Upon submission of her thesis, University issued a Plagiarism Verification Certificate to plaintiff, as per which plaintiff's thesis contained 0% plagiarism. As such, plaintiff is original author of the original literary work titled " Construction of Childhood in Hindi Cinema" and thus, plaintiff is the owner of all copyright therein. The said work is an original literary work as contemplated under Section 2(o) of the Copyright Act 1957.
4. At the time of submission of the plaintiff's Ph.D thesis, university, as mandatorily required, asked the plaintiff to sign a Student Approval Form granting the University a 3 year non- exclusive license to archive and make accessible her thesis ' On View Only (No Downloads) basis'. The said form explicitly stated that plaintiff retained all other ownership qrights to the copyright of CS (Comm) No. 87/2024 2/12 her thesis. The University made plaintiff's thesis available on the Shodhganga website which is overseen by INFLIBNET [An Inter- University Centre of the University Grants Commission (India) under the Ministry of Education (India)]. Therefore, a soft copy of the plaintiff's thesis can be accessed at https://shodhganga.inflibnet.ac.in/handle/10603/378948.
5. As further stated, in the month of September 2023, plaintiff to her utter shock and dismay, discovered that defendant no.1, is selling copies of plaintiff's thesis as a book on defendant's no.2 e- commerce portal, without the plaintiff's consent or knowledge. Subsequently upon further search, plaintiff discovered several websites which were selling copies of plaintiff's thesis as a book, details of which were given in the plaint. Plaintiff, in order to safeguard her copyright in her own original work, immediately contacted Vice Chancellor and Librarian of DU alongwith the Director of INFLIBNET on 16.09.2023 and informed them about the publication of her thesis as a book and sale of the same on Amazon India website.
6. On 18.09.2023, plaintiff addressed an e-mail to the DU's Certificate Course of Patents Program (CCP). The CCP informed plaintiff vide e-mail dated 20.09.2023 that they do not have an active IPR Cell and advised plaintiff to initiate a copyright infringement action in the court of law. Plaintiff in order to verify the contents of the book being sold on Amazon India's website, also purchased the book through her brother's Amazon account for a sum of Rs. 2,089/- and as per the invoice, the book was sold by defendant no.1 from its address in Rewari, Haryana and invoice is digitally signed by defendant no.1's authorized signatory. Upon receiving and reading the book, plaintiff was shocked to see that the CS (Comm) No. 87/2024 3/12 book was a 'word by word' copy of her Ph.D thesis. It is only the title of the book which had been changed from "Construction of Childhood in Hindi Cinema" to " Childhood in Hindi Cinema"
Plaintiff's name was mentioned as the author on the cover of the book and as per the last page of the book, same was printed by defendant no.1 in India.
7. As per the information provided on defendant no.1's website, it digitalizes the content for acquiring and providing royalty for every book sold. However, till date, defendant no.1 has not approached the plaintiff for her permission to publish her content and neither have they paid a single penny to the plaintiff as royalty. Said actions of defendants, as stated, fall afoul of the provisions of section 51 of Copyright Act, primarily by encroaching upon the exclusive right of the plaintiff to reproduce, issue copies, store, make available and communicate to the public her literary work.
8. Defendants, as stated, through sale of the plaintiff's original and copyrighted literary work, have certainly earned massive revenue and they are clearly in violation of section 51 (a) (ii) and section 51 (b) of the Copyright Act. Due to said illegal, fraudulent and malafide conduct of defendants, plaintiff has suffered irreparable injury to her reputation and goodwill and therefore defendants ought to be restrained from further reproducing, printing, publishing, and/or selling the original literary work of the plaintiff in any manner or for whatsoever. Further, defendants are also liable to render an account of the revenue and sales accrued from the infringing book in order to ascertain the exact quantum of monetary damages suffered by the plaintiff due to unlawful act of defendants.
CS (Comm) No. 87/2024 4/129. Suit was filed alongwith application U/s 12-A of Commercial Courts Act r/w section 151 CPC, seeking exemption from initiating pre-institution mediation proceedings, which was allowed. Vide order dated 27.02.2024, defendant no.1 failed to appear in the matter nor filed the written statement and accordingly was proceeded ex-parte. Presence of defendant no.2 was dispensed with, for further proceedings in the matter since they had complied with the directions of the court and had also taken down the listing on Amazon.in.
10. Following issues were framed vide order dated 19.03.2024:
1) Whether the plaintiff is entitled for injunction, as claimed? OPP
2) Whether the plaintiff is entitled for damages, as claimed? OPP
3) Relief.
11. In plaintiff's evidence, plaintiff Ms. Nidhi Gulati, examined hereself as PW1. She filed her evidence by way of affidavit Ex. PW1/A and relied upon following documents:-
1. True copy of profile of plaintiff as available on website of the Institute of Home Economics, University of Delhi as Ex. PW1/1
2. Copy of Completion Certificate of Fulbright Scholarship as Mark A (same has been mentioned as Ex. PW1/2 in the evidence affidavit)
3. Copy of Ph.D Degree Certificate as Mark B (same has been mentioned as Ex. PW1/3 in the evidence affidavit)
4. Copy of Plagiarism Verification Certificate as Mark C (same has been mentioned as Ex. PW1/4 in the evidence affidavit) CS (Comm) No. 87/2024 5/12
5. True copy of the Certificate of Originality as Ex. PW1/5 (OSR)
6. True copy of the Student Approval Form as Ex. PW1/6 (OSR)
7. Print out of computer screenshot of thesis on Shodhganga website as Ex. PW1/7
8. True copies of email communications between plaintiff, University of Delhi and INFLIBNET as Ex. PW1/8 (colly.)
9. True copy of Invoice from Amazon India as Ex. PW1/9
10. True copy of the relevant pages of the book as Ex. PW1/10 (colly.) (OSR)
11. Affidavit U/o XI rule 6 CPC r/w Section 65-B of Indian Evidence Act, 1872 as Ex. PW1/11.
12. In terms of case of plaintiff who is working as a professor in University of Delhi, she during her tenure as Ph.D student had authored thesis titled as "Construction of Childhood in Cinema"
and submitted the same in April, 2017 and was awarded her Ph.D in September 2018. True copy of profile of plaintiff as available on website of Institute of Home Economics, University of Delhi was brought on record as Ex. PW1/1. Copies of Completion Certificate of Fulbright Scholarship and Ph.D Degree were brought on record as 'Mark- A' and 'Mark- B' respectively. Upon submission of thesis, plaintiff was issued Plagiarism Verification Certificate Mark C by the University, as per which plaintiff's thesis contained 0% plagiarism and hence, plaintiff was the original author of the original literary work titled "Construction of Childhood in Hindi Cinema" as well as the owner of all copyright therein. University also provided a Certificate of Originality Ex. PW1/5 to the plaintiff .CS (Comm) No. 87/2024 6/12
13. As deposed by PW1, at the time of submission of her Ph.D thesis, as mandatorily required, she was asked by the university to sign a Student Approval Form Ex. PW1/6 granting the University a 3 year non-exclusive license to archive and make accessible her thesis on 'View Only (No Downloads) basis'. The said form explicitly stated that plaintiff retained all other ownership rights in the copyright of her thesis. University made plaintiff's thesis available on the Shodhganga website which is overseen by INFLIBNET [An Inter-University Centre of the University Grants Commission (India) under the Ministry of Education (India)]. Therefore, a soft copy of the plaintiff's thesis can be accessed at https://shodhganga.inflibnet.ac.in/handle/10603/378948. Print out of computer screenshot of the thesis from Shodhganga website was brought on record as Ex. PW1/7.
14. PW1 asserted that it came to her notice that defendant no.1, is selling copies of plaintiff's thesis as a book on defendant no.2's e-commerce portal, without the plaintiff's consent or knowledge. Subsequently plaintiff discovered several websites which were selling copies of plaintiff's thesis as a book. Plaintiff, in order to safeguard her copyright in her own original work, immediately contacted Vice Chancellor and Librarian of DU alongwith the Director of INFLIBNET on 16.09.2023 and informed them about the publication of her thesis as a book and sale of the same on Amazon India website. Emails were also sent by plaintiff to DU's Certificate Course of Patents Program (CCP), which were brought on record as Ex. PW1/8 (colly). Plaintiff in order to verify the contents of the book selling on Amazon India's website, also purchased the book through her brother's Amazon account and as per the invoice Ex. PW1/9, the book was sold by defendant no.1 CS (Comm) No. 87/2024 7/12 from its address in Rewari, Haryana and invoice was digitally signed by defendant no.1's authorized signatory. Upon receiving and reading the book, plaintiff was shocked to see that the book was a 'word by word' copy of her Ph.D thesis and only the title of the book had been changed from " Construction of Childhood in Hindi Cinema" to " Childhood in Hindi Cinema" . Plaintiff's name was mentioned as the author on the cover of the book and as per the last page of the book, same was printed by defendant no.1 in India. Copy of relevant pages of book were filed on record as Ex. PW1/10 (colly).
15. PW1 further deposed that defendants were selling her thesis as a book under her name but without any prior approval or consent taken from her. Thus, there can be no doubt that the defendants were fully aware of the fact that plaintiff was the author of the original literary work being sold by them. Furthermore, defendant no.1 had even procured an ISBN number against the book without prior information or approval from her. As per the information provided on defendant no.1's website, it digitalizes the content for acquiring and providing royalty for every book sold. However, till date, defendant no.1 has not approached the plaintiff for her permission to publish her content and neither have they paid a single penny to the plaintiff as royalty. Said actions of defendants, as deposed by PW1, fall afoul of the provisions of section 51 of Copyright Act, primarily by encroaching upon the exclusive right of the plaintiff to reproduce, issue copies, store, make available and communicate to the public her literary work.
16. Defendants, as deposed by PW1, through sale of the plaintiff's original and copyrighted literary work, have earned massive revenue and they are clearly in violation of section 51 (a) CS (Comm) No. 87/2024 8/12
(ii) and section 51 (b) of the Copyright Act. Due to said illegal, fraudulent and malafide conduct of defendants, plaintiff has suffered irreparable injury to her reputation and goodwill and therefore defendants ought to be restrained from further reproducing, printing, publishing, and/or selling the original literary work of the plaintiff in any manner or for whatsoever.
17. It was further deposed by PW1 that her thesis was a result of years of research and writing. She has spent a huge amount of time, effort and money in completion of the thesis and infringement on her copyright has caused grave prejudice to her. She could have approached publishers with a book proposal and gotten a contract as well as could have compiled her thesis in the form of book herself and then sold the manuscript to publishers. Through this approach, she would have earned an initial lump sum of money and then subsequent earning by way of royalties from sales of her book.
However, this route is now blocked for the plaintiff as defendant no.1 has infringed upon her copyright and made available her original work in the form of a book in the open market at global level. Further, journal publications would have flowed from her thesis as she was already preparing and fine tuning articles for the same. For instance, a chapter on 'nation and childhood' has appeared in a NIEPA Journal. However, since defendant no.1 has infringed her copyright and already made available her thesis as a book in the open market, no journal would accept her articles on this theme.
18. Plaintiff, as stated, has contributed chapters from her thesis in other books which have been published nationally as well as internationally. Details of such publications as well as details of books on similar themes with their respective prices were also CS (Comm) No. 87/2024 9/12 given in Ex. PW1/A. On the strength of above, it was deposed by PW1, that the estimated potential price of a book which she could have published from her thesis would work out to Rs. 2,300/- for the national and Rs. 13,000/- for the international edition. As further deposed by PW1, more than the actual cost of the book, which is the tangible damage, the intangible damage caused to her is much more. She spent 7 years in research and writing, building arguments, training, and utilizing fellowships in pursuance of completing her thesis, which is now lost. Thus, she seeks damages for the loss of her intellectual labour and investment of time.
19. Further, plaintiff's professional growth and career visibility, as stated, has been marred by defendant no.1. Thus, in absence of rendition of accounts by defendant no.1, plaintiff seeks damages of Rs. 10,00,000/- (Rs. Ten lacs only) due to the tangible and intangible loss suffered by her.
20. Defendant no.1 did not file written statement nor contested the matter and failed to appear despite the service upon it. On behalf of Defedant no. 2 it was submtited that defendant no.2 was intermediary which shall comply with the directions passed by this court including taking down of the listing on Amazon.in as identified by the plaintiff. Defendant no.2 was accordingly directed to take down the listing on Amazon.in. Subsequent thereto, compliance was submitted on record . It was stated that defendant no.2 has complied with the directions and has taken down the listing on Amazon.in.
21. The deposition of PW1 remained uncontroverted, unrebutted and unchallenged. Plaintiff has been able to establish on record the infringement of copyright of plaintiff by defendant no.1 whereby defendant no.1 encroached upon the exclusive right of the plaintiff CS (Comm) No. 87/2024 10/12 to reproduce, issue copies, store, make available and communicate to the public her literary work. As established on record, copyright in literary works reproduced, distributed and sold by defendants are owned by the plaintiff and plaintiff had neither licensed nor otherwise authorized the defendant no.1 to reproduce, print, public and/or sell her literary work to the public. As brought on record, defendant no.1 till date has neither approached the plaintiff for her permission to publish her content and nor has paid a single penny to the plaintiff as royalty, despite earning revenue from sale of the book. Conduct of defendant no.1 is in complete violation of plaintiff's statutory and common law rights and amounts to infringement of copyright of the plaintiff.
22. As regards rendition of accounts of profits earned by the defendant no.1, no document/material has been placed on record by the plaintiff and defendant no.1 itself has not placed on record its account details due to its non appearance in the matter. In absence of rendition of accounts by defendant no.1, plaintiff seeks damages of Rs. 10,00,000/- (Rs. Ten lacs only) on account of tangible and intangible loss suffered by her. Plaintiff is held entitled for the restrain order as claimed as well as damages in sum of Rs. 10,00,000/- (Ten lacs only) from defendant no.1.
Relief :-
23. Instant suit is accordingly decreed with cost in favour of the plaintiff and against defendant no.1 thereby :
(1) Defendant no.1 is restrained by itself as also through its partners, directors, promoters, employees, its officers, servants, agents, including distributors, wholesalers and retailers and all other acting for and on its behalf from printing, distributing, hosting, selling, offering for sale the infringing book titled as " Childhood in CS (Comm) No. 87/2024 11/12 Hindi Cinema" by Nidhi Gulati and other protected literacy works in relation to which the plaintiff has exclusive copyright, through internet or in any manner whatsoever.
(2) Defendant no.1 is further directed to pay damages in sum of Rs. 10,00,000/- (Ten lacs only) to plaintiff. If the payment is not cleared within one month, decreetal amount shall entail the payment of interest @ 12% p.a. after one month of the Judgment till realization.
24. Decree sheet be prepared accordingly. After completion of formalities, files be consigned to record room.
Announced in the open (SAVITA RAO)
court on 04.06.2024 DISTRICT JUDGE
(COMMERCIAL COURT)-01
SOUTH, SAKETCOURTS, DELHI
CS (Comm) No. 87/2024 12/12