Telangana High Court
Anil Kumar vs The State Of Telangana on 24 July, 2023
Author: M. Laxman
Bench: M. Laxman
THE HON'BLE SRI JUSTICE M. LAXMAN
CRIMINAL PETITION Nos.4020 and 4048 of 2018
COMMON ORDER:
1. The Criminal Petition No.4020 of 2018 is filed by accused Nos.1 and 2 and Criminal Petition No.4048 of 2018 is filed by accused No.2 seeking quashment of the proceedings in CC No.399 of 2016 on the file of the XII Additional Chief Metropolitan Magistrate at Nampally, Hyderabad, wherein and whereby, the cognizance was taken for the offence under Section 63 of Copyright Act, 1957 and issued process. Assailing the same, the present petition is filed.
2. As the CC number in both the criminal petitions is one and the same and the petitioners are accused Nos.1 to 3 in CC No.399 of 2016, both the criminal petitions are heard together and disposed of by way of this common order.
3. The sum and substance of the case of the prosecution is that the Times of India, Hyderabad is published by M/s.Bennett Coleman and Company Limited and petitioner-accused No.1 is designated as Publisher in terms of the Press and Registration of Books Act, 1867, the Petitioner-accused No.2 is Editor of Hyderabad Times and the petitioner-accused No.3 is Chief Editor of Times of India, which is also working under the same company. The complainant is the Deccan Chronicle Holdings Limited.
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4. The main grievance of the complainant is that the classified advertisements of sale of immovable property published in their newspaper were stolen and published in the newspaper of Hyderabad Times and thereby committed various offences. The said complaint was lodged under Section 200 of Cr.P.C and it was referred under Section 156(3) of Cr.P.C. The police after investigation found that the present accused committed offence under Section 63 of Copyright Act and consequently had taken cognizance and issued process. M/s.Bennett Coleman and Company Limited deleted as accused and other accused were charge sheeted.
5. The contention of learned counsel for the petitioners-accused Nos.1 to 3 is that the publication of classifieds is not result of any minimal creativity and there are no copy rights. The second ground is that even copy rights exists in the classifieds, which are with the customer, who is the owner of the classifieds. The accused also raised that the petitioners cannot be prosecuted in the absence of the accused Company, which publishes the newspapers in terms of Section 69 of Copyright Act. Therefore, learned counsel for the petitioners- accused Nos.1 to 3 seeks quahsment of the offence.
6. Learned counsel for the respondent - complainant submitted that the classifieds are prepared on the basis of customary information and arranging the information in order involves minimal 3 creativity and they are the owners of the creativity of classifieds and the customer cannot be said to be the owner of the copy rights. It is further contended that in fact they filed a complaint against the Company; however, the Investigating Officer has not charged the Company as an accused. It is fault on the part of the investigation and the petitioner cannot be found fault.
7. Heard learned counsel for the petitioners-accused Nos.1 to 3 and learned counsel for respondent-complainant and perused the material available on record.
8. To answer the contentions, it is apt to refer Section 2(y) of the Copyright Act, 1957, which is hereunder:
Section 2: Interpretation-- In this Act, unless the context otherwise requires,--
Section 2(y): "work" means any of the following works, namely:--
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
8(a). It is also apt to refer Section 13 of the Copyright Act, 1957, which is hereunder:
Section 13: Works in which copyright subsists.--
(1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,--
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films (2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of section 40 or section 41 apply, unless,--
(i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India;
(ii) in the case of an unpublished work other than a work of architecture, the author is at the date of the making of the work a citizen of India or domiciled in India; and
(iii) in the case of work of architecture, the work is located in India.4
Explanation.-- In the case of a work of joint authorship, the conditions conferring copyright specified in this sub-section shall be satisfied by all the authors of the work. (3) Copyright shall not subsist--
(a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work;
(b) in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed.
(4) The copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or, as the case may be, the sound recording is made. (5) In the case of work of architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.
8 (b). It is also apt to refer to Section 17 of the Copyrights Act, 1957, which is hereunder:-
Section17: First owner of copyright.-- Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein:
Provided that--
(a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work;
(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;
(c) in the case of a work made in the course of the author's employment under a contract of service or apprenticeship, to which clause (a) or clause
(b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;
(cc) in the case of any address or speech delivered in public, the person who has delivered such address or speech or if such person has delivered such address or speech on behalf of any other person, such other person shall be the first owner of the copyright therein notwithstanding that the person who delivers such address or speech, or, as the case may be, the person on whose behalf such address or speech is delivered, is employed by any other person who arranges such address or speech or on whose behalf or premises such address or speech is delivered; (d) in the case of a Government work, Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;5
(dd) in the case of a work made or first published by or under the direction or control of any public undertaking, such public undertaking shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.
Explanation.-- For the purposes of this clause and section 28A, "public undertaking" means--
(i) an undertaking owned or controlled by Government; or
(ii) a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956); or
(iii) a body corporate established by or under any Central, Provincial or State Act;
(e) in the case of a work to which the provisions of section 41 apply, the international organization concerned shall be the first owner of the copyright therein Provided that in case of any work incorporated in a cinematograph work, nothing contained in clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of sub-section (1) of section 13.
8 (c). It is also apt to refer Section 69 of the Copyrights Act, 1957, which is hereunder:-
Section 69: Offences by companies-- (1) Where any offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for, the conduct of the business of the company, as well as the company shall be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company, and it is proved that the offence was committed with the consent or connivance of, or is attributable to any negligence on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.-- For the purposes of this section--
(a) "company" means anybody corporate and includes a firm or other association of persons; and
(b) "director", in relation to a firm means a partner in the firm
9. The allegations in the complaint shows that the Hyderabad Times, which is the supplement and part of Time of India newspaper which is owned by M/s.Bennett Coleman and Company Limited. The petitioner- 6 accused No.1 is designated publisher and petitioner/accused No.2 is Editor of Hyderabad Times and petitioner-accused No.3 is Chief Editor of Time of India. The publications of classifieds were made in the Time of India in the designated column of "Times classifieds property" and there is a dispute with regard to publication of such classifieds under Hyderabad Times and Times of India. However, as seen from the record produced by the complainant itself the paper shows that it is Times of India and not Hyderabad Times. This document is unimpeachable document; both the parties relied upon the same document. Therefore, from such document it is clear that the classified ads alleged to have been copied or published in the Times of India and not Hyderabad Times, which is part of Hyderabad Times but editorship is accused No.2. It is also not in dispute that the same classifieds which are published in the Times classifieds published previously in the Hyderabad Chronicle, which is part of Deccan Chronicle newspaper. The question now is whether the classifieds, which are published in the Deccan Chronicle, can be said to be result of any minimal creativity and whether the Deccan Chronicle is the owner of such creativity of the classifieds.
10. In the present case, the classifieds are published by the Deccan Chronicle on the basis of customer request. This means the classifieds are published basing on the information furnished to the newspaper by the concerned customer; such information was put in order of arrangement with some skill.
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11. Dealing with the copy rights, the Hon'ble Apex Court in "Eastern Book Company and others Vs. D.B. Modak and another"1 held that the minimal creativity is required so as to amount to artistic work and enhancing the readability of their skill would not amount to minimal creativity. In the present case also the information furnished is the customer, he is the owner of copy rights if any exists and in fact this Court says that arranging information in order what is furnishing is not involved any minimal creativity and such information is already there with the customer before it is furnished such information and there is lack of minimal creativity. Further, even assuming that such minimal creativity is exists, the person who gave such information is the owner of such a copy rights. The role of the newspaper herein is only putting certain information in order for the purpose of effective readability and nothing more else. Therefore, mere enhancing the readability of creation of artistic work of other is not amount to any creativity on the part of the complainant. The person who enhanced the readability of the information as held by the Hon'ble Apex Court in Eastern Book Company (cited supra) cannot said to be holder of copy right. Therefore, this Court feels that there is no copy rights involved in this case.
12. Dealing with the third ground, admittedly the Times of India is published by M/s.Bennett Coleman and Company Limited and it has 1 (2008) 1 Supreme Court Cases 1 8 distinct juridical personality. The petitioners herein are in charge management of such company in carrying the business activities of publication of newspaper. In terms of Section 69 of the Act, 1957 the Company has to be main accused and the persons in charge are liable consequent upon the liability fixed on the Company. Without the company, the proceedings against the individuals, managing the helm of affairs of company is not maintainable. Therefore, the criminal proceedings on this ground also liable to be quashed. Therefore, these petitions are required to be allowed.
13. Accordingly, Criminal Petitions are allowed and the criminal proceedings against the petitioners-accused Nos.1 to 3 are quashed. It is made clear that any observation made herein for disposal of these criminal petitions shall not come in the way of any subsequent proceedings. Miscellaneous applications, if any, pending shall stand closed.
______________________ JUSTICE M.LAXMAN Date: 24.07.2023 pld 9 THE HON'BLE SRI JUSTICE M. LAXMAN CRIMINAL PETITION Nos.4020 and 4048 of 2018 Date:24.07.2023 pld