Delhi High Court
Giant Rocket Media And Entertainment ... vs Ms. Priyanka Ghatak And Ors. on 7 January, 2020
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 7th January, 2020.
+ CS(COMM) 736/2019
GIANT ROCKET MEDIA AND
ENTERTAINMENT PVT. LTD. ..... Plaintiff
Through: Mr. Jagdish Sagar, Ms. Sangeeta
Bharti, Mr. Ashish Kumar, Mr. Sushil
Kumar Singh, Mr. Rameezuddin Raja
and Ms. Anubha Dhulia, Advs.
Versus
PRIYANKA GHATAK AND ORS. ..... Defendants
Through: Mr. Sandeep Sethi, Sr. Adv. with Ms.
Vidya Prabhakar and Mr. Nishit
Malhotra, Adv. for D-1&2.
Mr. Abdhesh Chaudhary, Ms. Sakshi
Arora and Mr. Nish Kant Singh,
Advs. for D-3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.18527/2019 (of plaintiff u/O XXXIX R-1&2 CPC) & IA
No.82/2020 (of D-1&2 u/O XXXIX R-4 CPC)
1. The plaintiff has instituted this suit "for permanent injunction against
infringement of copyright, against disclosure of confidential information,
damages and accounts of profit" against Priyanka Ghatak, Zee
Entertainment Enterprises Ltd. and Mr. Shantonu Sen, pleading that:
(i) the plaintiff is a production house which creates varied content
and has made numerous short films; the plaintiff has its own channel,
CS(COMM) 736/2019 Page 1 of 24
on which it uploads many of its short films; the plaintiff is also working
on a huge series based on new and thought provoking content;
(ii) defendant no.1 is a script writer of a serial (web series)
comprising 8 episodes, to be streamed on internet streaming site of
defendant no.2; the defendant no.2 is a major entertainment company
engaged inter alia in film production, television broadcasting, radio
sound recording production and various internet services; the defendant
no.3 is a proforma defendant, impleaded in compliance with Section 61
of the Copyright Act, 1957;
(iii) the plaintiff acquired the rights for derivative exploitation by
adaptation for different modes of media of a book titled "CBI Insider
Speaks: Birlas to Sheila Dikshit" authored by defendant no.3, a former
Joint Director, Central Bureau of Investigation (CBI); Chapter 7 of the
said book is titled as "Shuttlecock Investigation: Syed Modi Murder
Case";
(iv) in November, 2019, the defendant no.2 approached the
defendant no.3 for a license for adaptation of the book aforesaid
authored by the defendant no.3, for a web series and all other purposes;
the defendant no.3 informed the defendant no.2 that the said rights had
already been exclusively licensed to the plaintiff; the defendant no.3
then sent an e-mail dated 26th November, 2019 to the plaintiff in this
regard;
(v) on 27th November, 2019, the defendant no.2 contacted the
plaintiff, seeking a transfer of rights for adaptation of the said book;
however the plaintiff expressed reluctance thereto;
CS(COMM) 736/2019 Page 2 of 24
(vi) on 28th November, 2019, the defendant no.2 sent an e-mail to the
plaintiff, again offering to acquire the rights in the aforesaid book
authored by the defendant no.3 and which rights defendant no.3 had
licensed to the plaintiff;
(vii) on 10th December, 2019, the plaintiff sent an e-mail to defendant
no.2 suggesting on a preliminary basis, the possibility of cooperation;
the defendant no.2 did not reply to the said e-mail of the plaintiff;
(viii) on 11th December, 2019, the defendant no.3 sent a notice to
defendant no.2, referring to a conversation on 9th December, 2019 with
the defendant no.2 wherein the defendant no.2 again tried to acquire the
rights in the book aforesaid from the defendant no.3;
(ix) on 26th December, 2019, the defendant no.3 sent a follow-up
notice to defendant no.2, after having learnt that the defendant no.2 had
already shot a serial on the Syed Modi Murder Case from the book of
the defendant no.3; a copy of the said notice was also sent by defendant
no.3 to the plaintiff;
(x) on further exploration, the plaintiff found that the defendant
no.2 had been planning the release of a web series on the same subject,
of murder of Syed Modi, under the title "Chargesheet: The Shuttlecock
Murder";
(xi) the title aforesaid clearly showed adaptation by the defendant
no.2 of Chapter 7 of the defendants no.3‟s book and rights wherein the
defendant no.2 had been unsuccessfully trying to acquires from the
plaintiff and defendant No.3;
CS(COMM) 736/2019 Page 3 of 24
(xii) the defendant no.2, apparently on second thought, changed the
game played by the murder victim, from badminton to table tennis;
however the story of the web serial of defendant no.2 still identified
with Chapter 7 of the book of defendant no.3;
(xiii) the mala fides of defendant no.2 are also evident from the claim
of the defendant no.1 in the media, of having no idea of Syed Modi
Murder Case until the start of the shows production; it is impossible for
anyone to have no idea of Syed Modi Murder Case and to invent the
story from scratch;
(xiv) on 28th December, 2019, the Line Producer assisting the Producer
of the defendant no.2‟s web serial confirmed to the plaintiff that the
web series to be released by the defendant no.2 was in fact exactly the
same as Chapter 7 of the defendant No.3‟s book and unchanged but for
the replacement of the badminton with table tennis;
(xv) the idea of adapting defendant no.3‟s book as a basis for web
series, is itself an original valuable commercial idea; the said idea
could be given expression only by following defendant no.3‟s
narration, compilation and selection of facts; any such adaptation,
without permission, is infringement of the plaintiff‟s exclusive rights
under Section 14(a)(vi) of the Copyright Act; the plaintiff thus has
locus standi under Sections 54 and 61 of the Copyright Act to institute
the suit; and,
(xvi) the defendants, at all times wanted to adapt the story as compiled
and authored by defendant no.3, and in which the plaintiff held
exclusive rights, into a web series.
CS(COMM) 736/2019 Page 4 of 24
2. The plaintiff, on the pleas aforesaid, sought the reliefs of (a)
permanent injunction restraining defendants no. 1 and 2 from
communicating to the public over the internet and infringing the exclusive
copyright of the plaintiff to make adaptation from the book titled "CBI
Insider Speaks: Birlas to Sheila Dikshit"; (b) permanent injunction
restraining defendants no. 1 and 2 from misappropriating and misusing the
confidential and commercial valuable conception of the plaintiff to exploit
the adaptation of the book aforesaid; (c) recovery of damages; and, (d)
rendition of accounts.
3. The suit, aforesaid instituted on 31st December, 2019, came up before
the Vacation Bench of this Court on 3rd January, 2020 when, while issuing
summons of the suit for 23rd January, 2020, vide ex parte ad interim order
the defendants no. 1 and 2 were restrained from communicating to the
public over the internet, or otherwise infringing by any means, the exclusive
rights of the plaintiff to make adaptations including but not limited to web
series from the book titled "Insider Speaks: Birlas to Sheila Dikshit".
4. The senior counsel for the defendants no. 1 and 2, on the Court re-
opening day of 6th January, 2020, mentioned the application of the
defendants no. 1 and 2 for vacation of the ex parte ad interim order for
urgent listing,. It was the contention of the senior counsel for the defendants
no. 1 and 2 that the defendants no. 1 and 2, on 1st January, 2020, had already
released on the internet the 8 episodes of defendant no.2‟s web series
"Chargesheet: The Shuttlecock Murder" and thus the ex parte ad interim
order dated 3rd January, 2020 was in the nature of an ex parte ad interim
mandatory injunction directing the defendants no. 1 and 2 to remove the
CS(COMM) 736/2019 Page 5 of 24
aforesaid 8 episodes of its serial from its website. The application of the
defendants no. 1 and 2 for vacation of ex parte ad interim order was ordered
to be urgently listed on 6th January, 2020 itself and the counsel for the
plaintiff appeared on advance notice and sought time to reply/argue.
5. Considering the urgency, the application was ordered to be listed
today for hearing and liberty given to the counsel for the plaintiff to bring
the reply if any to the Court and/or to place before the Court the documents
if any in support of its claim of interim injunction or in rebuttal to
application of defendants No.1&2 for vacation of ex-parte order.
6. The counsel for the plaintiff today informs that reply has been filed in
the Registry. The same has been called for and got placed on record.
7. The counsel for the plaintiff, the senior counsel for the defendants no.
1 and 2 and the counsel for the defendant no. 3 have been heard.
8. Having gone through the plaint filed by the plaintiff and finding,
(i) that Chapter 7 of the book "CBI Insider Speaks: Birlas to Shiela
Dikshit" authored by the defendant no.3 is based on knowledge of the
defendant no.3 as Investigating Officer of what then came to be
known as the "Syed Modi Murder Case";
(ii) that the plaintiff has nowhere pleaded any similarity in the
contents of the web serial titled "Chargesheet: The Shuttlecock
Murder" of the defendant no.2 in terms of script or dialogue or in any
other respect, with Chapter 7 of book authored by defendant no.3;
and,
CS(COMM) 736/2019 Page 6 of 24
(iii) that the plaintiff, though has alleged breach of confidentiality
by the defendant no.2, had not pleaded any material or thing supplied
by the plaintiff to the defendant no.2 in confidence,
and being of the opinion that Chapter 7 of the book authored by the
defendant no.3 being not a piece of fiction and merely a narrative of the
crime and its prosecution, all of which was already in public domain and in
which none could have a copyright, I have straightaway enquired from the
counsel for the plaintiff, how the plaintiff or the defendant no.3 could claim
exclusive right to the facts of the Syed Modi Murder Case and whether not
the said case, being in public domain, it was open to all to adapt the same,
whether for a literary work or for a film or for any other media and none
could claim exclusivity thereto. It was further enquired from the counsel for
the plaintiff, whether not the said question went to the root of the matter and
if the plaintiff could have no exclusive right with respect to facts of Syed
Modi Murder Case, whether not in the absence of any pleas of similarity and
supplying of any material of any confidentiality, the suit was not
maintainable and liable to be dismissed.
9. Though the counsel for the plaintiff and counsel for the defendant
no.3 have addressed on the aforesaid aspect but being of the view that the
plaintiff should have notice of the question raised by the court as to the very
maintainability of the suit, it was enquired from the counsel for the plaintiff,
whether he would consent to hearing on the said aspect also today or would
need further time therefor.
10. The counsel for the plaintiff has opted for further time.
CS(COMM) 736/2019 Page 7 of 24
11. The present order is thus concerned only with the application for
interim relief and the application for vacation of the ex parte ad interim
order, and the reference therein to the maintainability is not intended to be
for the purposes of judging the maintainability of the suit and for which
purpose the hearing, as already scheduled, is posted on 23rd January, 2020.
12. The counsel for the plaintiff has argued, (i) that the plaintiff, on the
facts pleaded, though may not be entitled to the relief on the ground of
infringement of the copyright, but is entitled to relief on the ground of
misappropriation of confidential information; (ii) that the defendant no.2
was admittedly in negotiation with the plaintiff and defendant no.3 and
thereafter has surreptitiously adapted Chapter 7 of the book authored by the
defendant no.3, which was already in public domain; (iii) that the idea of
making a story of the Syed Modi Murder Case, was of the defendant no.3
and of making a film of the said story is of the plaintiff; attention in this
regard is invited to paragraph 6 of the plaint, wherein pleading with respect
to acquisition by the plaintiff of rights for derivative exploitation of the
copyright of the defendant no.3 in the book, are contained; (iv) that the
entire conduct of the defendant no.2 is suspicious; (v) that the document at
pages 67 of Part IIIA File, being the media report of the web serial of the
defendant no.2, shows that the defendant no.2 at the last moment changed
the game played by the victim from badminton to table tennis; the web
series is otherwise based on Syed Modi Murder Case and the document at
page 71 of Part-III-A file, being the reply dated 30th December, 2019 of the
defendant no.2 to the legal notice dated 11 th December, 2019 and 26th
December, 2019 sent by the defendant no.3 to the defendant no.2 admits that
the web series was based on a badminton player and his murder and was
CS(COMM) 736/2019 Page 8 of 24
initially titled as "The Shuttlecock Murder‟ and that the title was
subsequently changed to „The Chargesheet- Innocent of Guilty‟"; (vi) that
the defendant No.2, after negotiating with plaintiff and defendant No.3, on
26th December, 2019 turned dishonest and decided to produce the web
serial, though by adopting the idea of the defendant No.3 and the
confidential information received from plaintiff, but without entering into
agreement with plaintiff; (vii) reliance is placed on Zee Telefilms Ltd. Vs.
Sundial Communications Pvt. Ltd. & Ors. 2003 SCC OnLine Bom 344
holding that the law of confidence is different from law of copyright; though
there can be no copyright of ideas or information and it is not infringement
of copyright to adopt or appropriate ideas of another or to publish
information received from others, but if the ideas or information have been
acquired by a person under such circumstances that it would be a breach of
good faith to publish them, the Court may grant injunction against him; (vii)
reliance is also placed on Anil Gupta and Anr. Vs. Kunal Dasgupta and
Ors. AIR 2002 Del 379 holding the though idea per se has no copyright but
if the idea is developed into a concept, fledged with adequate details, then
the same is capable of registration under copyright; (ix) that the web serial
of the defendant was released on 1st January, 2020 i.e. after the filing of the
suit on 31st December, 2019, but before hearing thereof on 3rd January, 2020
and thus the ex parte ad interim relief granted is not mandatory, inasmuch as
the ex parte order merely undoes what has been done by the defendant no.2
to score a mileage over the plaintiff; it is not as if the Court can never grant
ex parte ad interim injunction in mandatory form; reliance is placed on
Dorab Cawasji Warden Vs. Coomi Sorab Warden & Ors. (1990) 2 SCC
117; (x) that the mala fides of the defendant no.2 are also apparent from
CS(COMM) 736/2019 Page 9 of 24
defendant no.2, on 1st January, 2020 itself releasing all of the 8 episodes
instead of releasing the episodes periodically; (xi) that the plaintiff learnt of
the design of the defendant no.2 only on receipt of copy of the notice dated
26th December, 2019 got served by the defendant no.3 on the defendant
no.2; and, (xii) attention is invited to page 25 of Part III-A File, being the
communication dated 28th November, 2019 of the defendant no.2 to the
plaintiff and it is contended that there is no mention therein of the book
authored by the defendant no.1.
13. I have enquired from the counsel for the plaintiff, whether the
Investigating Officer of a crime and its prosecution, has any copyright over
the charge sheet authored by him or over any other material collected by
him.
14. The counsel for the plaintiff though has not made any such claim but
has avoided to answer.
15. The senior counsel for the defendants No.1&2 informs that the
defendant No.1, who is the script writer of the web series of the defendant
No.2, has also authored a book titled "Shuttle Cock Murder", and on 9th
July, 2018 assigned her copyright with all the requisite rights to one Ashok
Pandit, who then further delegated his acquired rights to one Daytee Pictures
Pvt. Ltd. Thereafter, Daytee Pictures Pvt. Ltd. and defendant No.2 entered
into an agreement to produce a web series based on the defendant No.1‟s
book.
16. I have enquired the date of publication of the book of the defendant
No.3 and of the book of the defendant no.1.
CS(COMM) 736/2019 Page 10 of 24
17. It is informed that while the book of the defendant no.3 was published
in the year 2015, the book of the defendant no.1 was published on 21 st
November, 2019.
18. The counsel for the plaintiff having argued, that the intention of the
defendant no.2 turned mala fide on 26th December, 2019, I have further
enquired from the counsel for the plaintiff, how much time does it take to
complete the shoot/filming and canning of 8 episodes of 45 minutes each, to
be released on 1st January, 2020.
19. Though the counsel for the plaintiff states that he has no knowledge in
this regard but Mr. Sidharth Sikka, CEO of the plaintiff present in the Court
states that the same should take at least 15 to 20 days.
20. Therefrom it is evident that the defendant No.2, after 26 th December,
2019 could not have filmed the eight episodes of the web serial, all of which
were evidently released on 1st January, 2020. The inference is that the
filming must have been underway from before.
21. I have drawn attention of the counsel for the plaintiff to my judgment
in Modicare Limited Vs. Gautam Bali 263 (2019) DLT 486 and Satish
Kumar Vs. Khushboo Singh MANU/DE/3411/2019 holding that in the
absence of any law in India of confidentiality and the same as a tort being in
violation of the law laid down in Section 27 of the Contract Act, 1872, the
claim cannot lie on the ground of confidentiality and thus has to be under the
Copyright Act only.
22. The counsel for the plaintiff states that the Division Bench of the
High Court of Bombay and a Coordinate Bench of this Court in the
judgments aforesaid have granted relief on the principle of confidentiality.
CS(COMM) 736/2019 Page 11 of 24
23. The senior counsel for the defendants No.1&2 has argued, (i) that
from a reading of paragraphs 18 & 19 of the plaint, it is clear that the
plaintiff has no cause of action for the suit; (ii) that no similarity is pleaded
between Chapter 7 of the book authored by the defendant No.3 and the book
authored by the defendant No.1 on which the web series comprising of eight
episodes of the defendant No.2 is based; (iii) that there is no plea of
entrustment by the plaintiff to the defendant No.2 of anything in confidence;
(iv) that while Chapter 7 of the book authored by the defendant No.3
comprises only of five pages, the book authored by the defendant No.1
comprises of 145 pages; (v) that the extracts from Chapter 7 of the book
authored by the defendant No.3 and from the book of the defendant No.1 are
read, to show the dis-similarity therein; (vi) that Chapter 7 of the book
authored by the defendant No.3 is merely an expression of the view of the
defendant No.3 of the happenings in the Syed Modi Murder case; on the
contrary, the entire book authored by the defendant No.1 comprising of 145
pages is based on Syed Modi Murder case; (vii) that the defendant No.1 may
have been inspired by Syed Modi Murder case but the same does not
constitute any copyright violation; (viii) that the reasoning given by the
Vacation Judge of this Court for granting the ex-parte order, of the theme of
Chapter 7 of the book authored by the defendant No.3 and of the web series
produced by the defendant No.2 being the same i.e. the murder of a national
level sports person with political ramifications, is contrary to the law laid
down in R.G. Anand Vs. Delux Films (1978) 4 SCC 118 that it is always
open to any person to choose an idea as a subject matter and develop it in his
own manner and give expression to the idea by treating it differently from
others and that where two authors write on the same subject, similarities are
CS(COMM) 736/2019 Page 12 of 24
bound to occur because the central idea of both are the same but the
similarities or coincidences by themselves cannot lead to an irresistible
inference of plagiarism or piracy unless one has merely disguised piracy; if
such a person has actually reproduced the original in a different form,
different tone, different tenor so as to infuse a new life into the idea of the
copyrighted work adapted by him, there is no violation of the copyright;
and, (ix) that discussions held by the defendant No.2 with the plaintiff and
the defendant No.3 were for the entire book and not for one chapter only, as
the defendant No.2 was then contemplating a web series based on all the
chapters of the book authored by the defendant No.3, but which ultimately
did not fructify.
24. The counsel for the defendant No.3, on enquiry states that he is
supporting the plaintiff. He has argued, (a) that the book of the defendant
No.1 was admittedly published after the book of the defendant No.3 and the
web series of the defendant No.2 was produced before publication of the
book of the defendant No.1, and thus cannot be based on the book of the
defendant No.1; (b) that the defendant No.3 saw teasers of the forthcoming
web series of the defendant No.2 and that is why got the notices issued; (c)
that as per the said teasers, the web series of the defendant No.2 narrates the
story from the eyes of an Investigating Officer, as in Chapter 7 of the book
of the defendant No.3 (however on being asked to demonstrate, the counsel
for the defendant No.3 states that he will need to produce the same); and, (d)
that the teasers have the same opening line as the first line of Chapter 7 of
the book of the defendant No.3.
CS(COMM) 736/2019 Page 13 of 24
25. The counsel for the plaintiff, in rejoinder, has argued, (I) that
paragraphs 18 & 19 of the plaint do show cause of action; (II) that the
plaintiff along with reply filed to the application of defendants No.1&2 for
vacation of stay, has at pages 47 & 48 filed screenshots of Episode 1 and
Episode 8 of the web series of the defendant No.2 which show the characters
along with shuttlecock at page 47 and along with badminton shuttlecock(s)
at page 48 and do not show table tennis racket or table tennis balls; (III) that
the hands of the defendant No.2 are tainted; (IV) that the action of the
defendant No.2, of seeking licence from the plaintiff and defendant No.3 are
in acknowledgment of the copyright of the defendant No.3; (V) that the
defendant No.2 has acted dishonestly and has at the last minute sought to
change the story of its web series by changing the game played by the victim
therein with the game of table tennis instead of the game of badminton as
was played by Syed Modi in an attempt to avoid the claim of plaintiff; else
the web serial remains the same; and, (VI) that a reading of the plaint shows
clear cause of action.
26. After conclusion of hearing, the order vacating the ex-parte ad-
interim order dated 3rd January, 2020, allowing IA No.82/2020 and
dismissing IA No.18527/2019 was pronounced with reasons to be dictated
in Chamber during the course of the day.
27. Having considered the material on record and the rival contentions, I
am unable to find the plaintiff entitled to any interim relief. My reasons
therefor are as under:
(A) Copyright is a statutory right and no right outside the statute
exists. Reference in this regard can be made to Time Warner
CS(COMM) 736/2019 Page 14 of 24
Entertainment Company L.P. Vs. RPG Netcom (2007) 140 DLT 758,
Entertainment Network (India) Ltd. Vs. Super Cassette Industries
Ltd. (2008) 13 SCC 30, Krishika Lulla Vs. Shyam Vithalrao Devkatta
(2016) 2 SCC 521, Navigators Logistics Ltd. Vs. Kashif Qureshi
(2018) 254 DLT 307 and Satish Kumar supra. Thus, unless a case of
defendant No.3 having any copyright and the defendants No.1&2
having infringed the same is made out, the plaintiff is not entitled to
any interim relief on the said ground.
(B) Per Section 13 of the Copyright Act, copyright subsists in, (a)
original literary, dramatic, musical and artistic works; (b)
cinematograph films; and (c) sound recording. The copyright claimed
by the plaintiff being in a book authored by the defendant No.3, the
same will fall under the category of „literary work‟. However, for a
copyright to subsist in a literary work, it has to be "original".
(C) In Macmillan & Company Ltd. Vs. K & J Cooper AIR 1924
PC 75, it was held that the word „original‟ does not mean that work
must be the expression of original or inventive thought; Copyright Act
is not concerned with 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
expression of the thought but the Act does not require that the
expression must be an original or novel work but that the work must
not be copied from another work. Comparatively recently, in Eastern
Book Company Vs. D.B. Modak AIR 2008 SC 809, it was held that,
(a) the words "literary work" cover work which is expressed in print or
CS(COMM) 736/2019 Page 15 of 24
writing, irrespective of, whether the quality or style is high; (b) the
commonplace matter put together or arranged without the exercise of
more than negligible work, labour and skill in making the selection,
will not be entitled to copyright; (c) the word "original" demands only
that the work should not be copied but should originate from the
author; (d) the Court has to see whether the work is a result of skill or
expense and if finds it so, it is entitled to be considered original, and to
be protected against copying; (e) copyrighted material is that what is
created by the author by his skill, labour and investment of capital,
maybe it is derivative work; and, (f) the courts will have to evaluate
whether derivative work is not the end product of skill, labour and
capital which is trivial or negligible but substantially the Courts need
not go into evaluation of literary merit of derivative work or the
creative aspect of the same. The Division Bench of this Court in Dart
Industries Inc. Vs. Techno Plast 233 (2016) DLT 1 held that the
content of what is "original" has undergone considerable change from
the previously applicable "sweat of the brow" doctrine to the
"modicum of creativity" standard. It was held that while under the
"sweat of the brow" doctrine copyright was conferred on works merely
because time energy skill and labour was expended, now under the
"modicum of creativity" standard not every effort or industry or
expending of skill results in copyrightable work but only those which
create works that are somewhat different in character, involve some
intellectual effort and involve a certain degree of creativity. Reference
in this regard may also be made to The Chancellor Masters and
Scholars of the University of Oxford Vs. Narendra Publishing House
CS(COMM) 736/2019 Page 16 of 24
MANU/DE/1377/2008, Mattel Inc. Vs. Jayant Agarwalla 153 (2008)
DLT 548, Reckeweg and Co. GMBh Vs. Adven Biotech Pvt. Ltd.
MANU/DE/0961/2008, Syndicate of the Press of the University of
Cambridge Vs. B.D. Bhandari 185 (2011) DLT 346 (DB), Emergent
Genetics India Pvt. Ltd. Vs. Shailendra Shivam
MANU/DE/3012/2011, Tech Plus Media Private Limited Vs. Jyoti
Janda MANU/DE/2438/2014 and Navigators Logistics Ltd. supra.
(D) Though the entire book authored by the defendant No.3 has not
been placed before this Court, with only a copy of the cover and table
of contents thereof together with Chapter 7 thereof filed but a reading
of the preface thereof reveals that the defendant No.3, in the book has
narrated facts about the incident that created news and the book is
described as a tale of investigation and prosecution by the CBI that
never saw the light of the day. Chapter 7 of the book is defined in the
preface as "a crime of passion" and showing "how blue blood suffers
from streaks of jealousy and lust and commits murder most vile".
Chapter 7 also describes Syed Modi Murder case as a fascinating case
of political interference, changing the course of law.
(E) In paragraph 6 of the plaint, it is pleaded that the defendant
No.3 from his career in CBI from August, 1963 till his retirement as
Joint Director in April, 1996, acquired a deep understanding of the
inner workings of the CBI and its interplay with the political system
and the book contains a series of highly original narratives of important
cases with selection and compilation of facts and materials such as
could only have been made by defendant No.3 with his narrative skills
CS(COMM) 736/2019 Page 17 of 24
and deep understanding of the working of the criminal justice system in
matters of the kind handled by the CBI.
(F) Applying the law aforesaid, it cannot be said with certainty at
this stage, whether Chapter 7 of the book with which this suit is
concerned constitutes an "original literary work" or is merely a
reproduction of the case files of the crime and its prosecution. If it
turns out that it is merely a reproduction, with no innovative thought
and creativity, it would not qualify as a copyrighted work. The
plaintiff has not produced before this Court the said case files with
which a comparison of Chapter 7 can be made and thus the plaintiff
cannot be said to have a prima facie case as the defendant No.3,
through whom the plaintiff claims, cannot be said to have a copyright.
It is in this context only that I had enquired from the counsel for the
plaintiff, whether the Investigating Officer of a crime and prosecution
has any copyright in the charge sheet filed and/or investigation done.
In my prima facie view, the Investigating Officer has no such copyright
and if narrates the same in print or otherwise elsewhere, would not
have a copyright therein also.
(G) Per Section 14 of the Copyright Act, copyright means the
exclusive right to do or authorize the doing of acts mentioned therein.
With respect to the literary works, the exclusive right is to inter alia
reproduce the work in any material form and to make any
cinematograph film in respect of the work. Thus, even if the defendant
No.3, through whom the plaintiff claims were to have any copyright in
Chapter 7, it was incumbent upon the plaintiff to, in the plaint, make
CS(COMM) 736/2019 Page 18 of 24
out a case of the book of the defendant No.1 having reproduced any
part of Chapter 7 in any material form and/or of the defendant No.2 in
its web series having made a cinematographic film with respect to
Chapter 7 of the book of the defendant No.3. The plaint is bereft of
any pleas in this regard. In fact, the counsel for the plaintiff or the
counsel for the defendant No.3 in their arguments have not even
attempted to make any comparison of Chapter 7 of the book of the
defendant No.3 with the book of the defendant No.1 or between
Chapter 7 and the film script of the web series of the defendant No.2.
Rather, the counsel for the plaintiff, on enquiry, whether has watched
the web series, has answered in the negative. Without the plaintiff
pleading a case of reproduction of Chapter 7 of defendant No.3‟s book
or summary of the script of the web series with Chapter 7, no cause of
action on the ground of infringement of copyright is found pleaded in
the plaint. The plaintiff appears to have filed the suit on the
assumption that production of the web series by the defendant No.2,
after approaching the plaintiff and defendant No.3 to acquire rights in
the book of the defendant No.1, to be itself constituting infringement of
copyright but which, as aforesaid, is not the position in law. Even if
both Chapter 7 of the book of the defendant No.3 and the book of the
defendant No.1 along with the web series of the defendant No.2, are
premised on the Syed Modi Murder case which was in public domain,
no case for infringement of copyright will be made out.
(H) A reading of Chapter 7 and portions of the book of the
defendant No.1 also shows the two, though to be concerning the same
case, to be as different as chalk and cheese, with Chapter 7 of the book
CS(COMM) 736/2019 Page 19 of 24
of the defendant No.3 reeking of official language and the book of the
defendant No.1 flavored as fiction and covering not merely the crime
and its prosecution but other parts of the lives of the dramatis persone
of the drama which unfolded with the crime, with wide coverage, not
only in Delhi newspapers, but in other periodicals. In fact, even till
date whenever photographs of the survivors of the incident appear,
even if in some other context, but are always invariably with reference
to the crime and its prosecution. The said crime is as iconic in the
history of Indian crimes as the Nanavati Murder case of the erstwhile
times and the Talwar and Nithari case of comparatively recent origin
with, as far as I remember, four films and one web series having been
produced inspired by the Nanavati Murder case. Thus, no prima facie
case of infringement of copyright even if any is pleaded or an attempt
to prove the same is made out.
(I) Perhaps realizing so, the counsel for the plaintiff, early in his
arguments, based his arguments primarily on breach of confidentiality.
However as aforesaid noticed and also argued by the senior counsel for
the defendants No.1&2, the plaint is bereft of any plea of any
relationship of confidentiality between the parties or anything in
confidentiality having been transacted between the parties. All that the
plaintiff has pleaded is the repeated approaches made by the defendant
No.2 to the plaintiff and the defendant No.3 to acquire rights in the
book of the defendant No.3 and defendant No.3 though initially having
shown reluctance thereto having subsequently informed the defendant
No.2 of its willingness to negotiate. There is not an iota of plea of any
CS(COMM) 736/2019 Page 20 of 24
jural relationship having come into existence on the premise of
confidentiality.
(J) The only response of the counsel for the plaintiff when quizzed
in this respect was that the book of the defendant No.3 was already in
public domain. However if that was so, the same negates any ground
urged of confidentiality.
(K) As far as the judgments relied upon by the counsel for the
plaintiff are concerned, in Zee Telefilms Ltd. supra, the plaintiff was
found to have developed a novel concept of Bal Krishna residing with a
family whose life is disturbed and solving their troubles and of having
developed the said idea into a plot which was submitted to defendant
No.1 in trust and it was further found that the defendant No.1, in an
attempt to wriggle out of culpability sought to contend that at about the
same time, the defendants No.2&3 approached the defendant No.1 with
the same plot. The Court found the two works to be having striking
similarity and further found it impossible to accept that the similarities
in two works were mere coincidence. It was for this reason that
injunction was granted. As distinct therefrom, Chapter 7 of the book of
the defendant No.3 is not based on any novel concept but on a crime
and its prosecution, already in public domain and the possibility of the
defendant No.1, much after publication of book by the defendant No.3
having chosen to write a piece of fiction premised on the same crime
and its prosecution, is writ large, particularly when the law permits the
same and no similarity is found between the two works much less
CS(COMM) 736/2019 Page 21 of 24
reproduction by the defendant No.1 or the defendant No.2 of the work
of the defendant No.3.
(L) Thus, no pleadings or cause of action for grant of any interim
relief to the plaintiff on the ground of breach of confidentiality is made
out. In view thereof, the need to deal with the existence of the right of
confidentiality in the context of Indian Law is not felt.
(M) The plaintiff is giving undue emphasis to the change effected
by the defendant no.2 in its web series with respect to the game played
by the victim. The same is of no significance to the entitlement of the
plaintiff to the relief claimed.
(N) Merely because the defendant no.2 approached the plaintiff and
defendant no.3 for acquiring rights in the book of the defendant no.3
would also not entitle the plaintiff to the relief without plaintiff making
out a case of having a copyright and infringement thereof or of the
defendant no.2 having misappropriated anything handed over to it in
trust or confidence. What has to be judged is the conduct of the
defendant and if the said conduct is found to be above law even though
the defendant no.2 under misconception/ignorance of law or otherwise
was earlier of the view that consent of the plaintiff and/or defendant
no.3 was required, the same would not estop the defendant no.2 from,
on realising the correct position in law, proceeding to make and release
the film/web series without any agreement with the plaintiff or
defendant no.3.
(O) I am also of the view that the ex-parte relief as granted against
the defendants no.1& 2 on 3rd January 2020, even though couched in
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the language of a prohibitory injunction, owing to undisputed release of
the web series by the defendant no.2 on 1st January 2020 was in ex-
parte ad-interim mandatory form. Rather, it was incumbent upon the
counsel for the plaintiff to, at the time of hearing on 3 rd January 2020,
inform the court of the web serial having already been released on 1 st
January 2020 and to request the court to direct the said web series to be
taken down and which the plaintiff failed to do.
(P) Not only is the plaintiff not found to be having a prima facie
case but the plaintiff is found to fail on the anvil of irreparable loss and
injury and balance of convenience. The defendant no.2 having already
made and released the web series, at a huge cost would suffer
irreparable loss on being restrained to reap the benefit of not only the
monies invested but also the effort of love for filmmaking, including of
all artists involved in the making thereof. On the contrary, the plaintiff,
even if ultimately succeeds, can always be compensated in monetary
terms and post facto recognition conferred on the defendant no 3. The
senior counsel for the defendants no.1&2, yesterday on enquiry
informed that a sum of Rs.14 crores had been expended on making of
the web series. I had yesterday only enquired from the counsel for the
plaintiff, whether was willing to furnish security to the defendant in the
said sum plus reasonable profits likely to be reaped therefrom. No
response was given, neither yesterday nor today.
(Q) I must however observe that even though the plaintiff is not
found to have made out a case for interim relief but the defendants
No.1&2 are also not found to be playing fair and making a clean breast
CS(COMM) 736/2019 Page 23 of 24
of the state of affairs. However, such conduct of the defendants
No.1&2 would not be a ground for granting interim relief to the
plaintiff.
28. Resultantly, the ex-parte ad-interim order dated 3rd January, 2020 is
vacated.
29. IA No.82/2020 is allowed and IA No.18527/2019 is dismissed.
RAJIV SAHAI ENDLAW, J.
JANUARY 07, 2020 „ak/bs‟ CS(COMM) 736/2019 Page 24 of 24