Copyright Board
Accurate Transheat Pvt. Ltd. vs Devendra Somabhai Naik on 4 June, 2004
Equivalent citations: 2004(29)PTC222(CB)
JUDGMENT
Brij Kishore Sharma, Chairman
1. The present application has been filed for rectification of the Copyright registration by expunging registration No.A-51910/92. The main plank for seeking this relief is that the said artistic work was capable of being registered under the Designs Act, 1911 but the said work has not been registered as a design under provisions of the Designs Act, 1911, and that the article to which the design has been applied has been reproduced more than fifty times and so the copyright must be deemed to have ceased in accordance with the provisions of Sub-section (2) of the Section 15 of the Copyright Act, 1957. Accordingly Register of the Copyrights is required to be rectified by expunging entry No. A 51910/92.
2. The respondent in his written statement stated that the design registered as copyright is not a design within the meaning of Section 2(5) of the Designs Act and so is not capable to being registered as a design. It was further stated that it was a design to manufacture the machine which is new and novel and that the plan for building and/or plan for machinery being manufactured cannot be considered as a design. The design was not applied to an article and so Section 15(2) was hot attracted. It was further stated in para 3 of the written statement that the "machine manufactured on the basis of the plan which is registered is not a design". The respondent also took the plea in para 7 of the written statement that the drawings are not manufactured by the respondent and there is no question of 50 or more of this drawing being manufactured by the respondent. It was added that "it is the machine which is manufactured using this drawing which are sold every year 170 per year. These machines do not have affixed on them the drawing which is the subject matter of copyright and therefore Section 15(2) of the Copyright is not violated by the respondent."
3. On 7th September 2001 the Copyright Board heard the parties on the question of limitation and gave an order that Article 137 of the Act 1963 is not applicable to the petition or application made under Section 50 of the Copyright Act, 1957. The order was challenged by the respondent and the Hon'ble Gujarat High Court by an order dated 5th July 2002 confirmed the order of the Copyright Board. In the meanwhile, the case was listed for arguments on 1st November 2002 but the matter was adjourned at the request of the counsel for the applicant. It was again fixed for arguments to be heard on 22nd January 2004 after a gap of more than two years. The parties and their advocates were served notice well in time yet the petitioner put an application dated 19th January 2004 for adjournment and the ground given was "unavoidable circumstances." The Board viewed the progress of the case with some concern because it is committed to quick disposal of matters that came before it. This case has been pending for about three years for arguments to be presented. In the circumstances, the Board ordered on 22nd January 2004 that the parties would submit their respective arguments in writing and the Board will decide the matter on the basis of written submissions.
4. The parties filed their submissions.
5. The applicant has submitted that the artistic work which is registered Under No. A. 51910/92 on 17.11.92 by the Registrar of Copyrights does not deserve to be on the register because, as admitted by the respondent, more than 50 articles have been reproduced applying the design by the owner of the copyright. Hence Section 15(2) comes into operation and the registration must cease to exist.
6. On the other hand, the respondent has contended that the design in question is not capable to being registered under the Design Act, 1911. Second contention was that the respondent is not applying any design to any article but is creating an article or a machine. The respondent accepted that he had, on an average, sold 170 machines every year. According to the respondent, Section 15(2) of the Copyright Act, 1957 applies only to designs which are reproduced and does not apply when a machine is reproduced based on drawings which have been registered under the Copyright Act. The respondent further contended that the drawings are not affixed to the manufactured machines and so the machines without drawings affixed to them do not come under Section 15(2) of the Copyright Act. In this view of Section 15, according to the respondent, the condition required under Section 15(2) is not fulfilled.
7. We have carefully considered the rival contentions and would like to being by quoting Section 15:
Special provision regarding copyright in designs registered or capable of being registered under the Designs Act, 1911.-(1) Copyright shall not subsist under this Act in any design which is registered under the * * * Designs Act, 1911 (2 of 1911).
(2) Copyright in any design which is capable of being registered under the * * * Designs Act, 1911 (2 of 1911), but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his licence, by any other person.
8. The whole matter revolves on the interpretation that may he assigned to the expression "shall cease as soon as any article to which the design has been applied has been reproduced more than 50 times,.... "The respondent has interpreted the word "applied' to mean "affixed".
9. According to him the expression "any article to which 'the design has been applied' means that the paper drawing has been attached or has been firmly stuck to an article. This is certainly a very odd way to construe the expression. When a person applies a design to an article he creates that article based on the design. The article will have the same proportions, lines, motifs etc. and if it is a machine the dimensions, shape, configuration, pattern, capacity, power, etc. It is common knowledge that when a person enters into a technical collaboration agreement to produce a machine e.g. a cycle or a motor bike or a motor what he gets is a drawing of the machines. The finished article has a relation with the original design which can be seen and judged by a knowledgeable person. There is no need to stick or affix the design to the article. Applying a design to produce an article or a machine means using the design as a model or pattern to be multiplied by an industrial process. A design applicable to a thing for its shape can only be applied to the thing by making it in that shape or pattern. When a design is applied to an article it means that the characteristic features e.g. shape, configuration, lines, etc. are reproduced in conformity with the model design. It is a naive argument submitted by the respondent that application means sticking the paper on which the design is printed. It has no logic and if accepted would make the whole provision namely Section 15(2) nugatory and worthless. Such an interpretation being contrary to all canons of interpretation cannot be adopted.
10. The respondent has admitted that every year he is selling around 170 machines which means that he has already crossed the limit of 50 imposed by Sub-section (2) of Section 15. This triggers the mechanism of Section 15(2). By operation of law the Copyright in the design has ceased as soon as the 51st article (in this case machine) was produced. When the copyright has ceased to exist by operation of law the Board cannot but direct the Registrar to maintain the purity of the Register of Copyright.
11. The Registrar is directed to expunge Entry No. A51910/92 which is wrongly remaining on the Register of Copyrights.