Delhi High Court
Lamba Brothers Pvt. Ltd. vs Lamba Brothers on 30 August, 1993
Equivalent citations: AIR1993DELHI347, 1993(2)ARBLR509(DELHI), 1994(28)DRJ168
ORDER
1. In this case, the plaintiff claims to be owner of copyright in a catalogue.
2. The catalogue relates to machinery (Power Presses) manufactured by the Plaintiff, copyright wherein is alleged to have been infringed by another catalogue of the defendants.
3. The plaintiff and defendants were carrying on business together at one time. They were functioning as partners and are real brothers. They were carrying on business in the name of 'ELBEE', 'L' standing for Lamba and 'B' for Brothers. These two alphabets LB made up in a word form of 'ELBEE'.
4. On dissolution of partnership w.e.f. 01-04-1985 by a Deed of Dissolution dated 20-10-1985, the two brothers appear to have carried on business independently.
5. The plaintiff says that the two brothers are litigating about the trade work 'ELBEE' in another proceeding, with which we are not concerned here.
6. This suit is relatable to a "catalogue", actually it is no more than a Coloured Brochure, which is claimed to have been made by one Mr. S. K. Bassi which catalogue/ brochure relates to the power presses which are manufactured and marketed by the plaintiff.
7. In this catalogue, there are written descriptive words, tables, and photographs.
8. Written words or "expression" created by stringing words together is copyrightable subject matter; as "tables" are prepared by expenditure of skill and labour such tables are also protected by copyright; photographs are copyrightable too. The catalogue/brochure is, therefore, a combination of different types of copyrightable subject matter, which is afforded protection under the Copyright Act, 1957. The question in this case is: Does the Catalogue/ Brochure of the plaintiff protected by the Copyright Act, 1957.
9. There is no reservation claim of copyright in the Catalogue/Brochure of the plaintiff in any of the recognised method, i.e., by a mark (C); or the expression "Copyright Reserved" or Copyright: Lamba Brothers (P) Ltd.; there is no such reservation the text in the brochure, the tables in the brochure or the photographs in the brochure.
10. I have brought to the counsel's attention to the provisions of Press & Registration Act S. 18(14) of the Press and Registration of Books Act, 1867, clearly states that particulars of all books printed in India have to be filled in the "Catalogue of books". Which has to contain particulars mentioned in S. 18, and under sub-sec. (14) the name and address of the proprietor of the copyright, or of any portion of such copyright has to be entered. As stated above, the particulars about the name of the author, or claims as to the whole or part of the copyrightable matter are not printed in the Catalogue/Brochure in suit.
11. Counsel for the plaintiff says that according to the Universal Copyright Convention revised at Paris in 1971, Art. III, protection is to be given to the catalogue subject matter of this suit. It is contended that it is of no consequence that claim to copyright is not made in or upon the Catalogue in suit. Article III of that Convention reads as under:--
"Any Contracting State which, under its domestic law, requires as a condition of copyright, compliance with formalities such as deposit, registration, notice, notarial certificates, payment of fees or manufacture of publication in that Contracting State, shall regard these requirements as satisfied with respect to all works protected in accordance with this Convention and first published outside its territory and the author of which is not one of its nationals, if from the time of the first publication all the copies of the work published with the authority of the author or other copyright proprietor bear the symbol (C) accompanied by the name of the copy-right proprietor and the year of first publication placed in such manner and location as to give reasonable notice of claim of copyright".
12. From the above, it is clear that the protection would be given reasonable notice of the (sic) following are to be found in the matter with regard to which copyright is claimed:--
(1) name of the author, (2) year of publication, (3) symbol (C), accompanied by name of the author, (4) or there should be any other reasonable notice for claim of copy-right.
13. Counsel points out that in the catalogue which is sought to be protected by this suit, there is mention that the machines are made by Lamba Brothers Pvt. Ltd., 6/10, Kirti Nagar Industrial Area, New Delhi-110015, and that this should be sufficient compliance with sub-sec. (14) of S. 18 of Press and Registration of Books Act.
14. I do not think that this could be so, particularly in view of the fact that the name of the plaintiff is not accompanied by the symbol (C). No reasonable notice that the plaintiffs claim any copyright is visible in the catalogue.
15. It has been asserted by the plaintiff that the creator/author of the catalogue was one Mr. S. K. Bassi, who was an employee of the plaintiff firm. This assertion that Mr. S. K. Bassi is the author and that he claims the copyright in the Catalogue/Brochure is nowhere stated in the Catalogue/Brochure. The plaintiff has also filed a certificate from this Mr. Bassi saying that he is one who created the catalogue and that he is also disclaiming any rights and interests in the catalogue. This certificate seems to be an after-thought, and appears prima facie to be only for the purpose of sustaining this suit.
16. Counsel also refers to judgment reported as 72 RPC 89. In that case, the claim of copyright was made in the catalogue. That claim being supported by a claim to copyright in the catalogue itself, as set out at page 95, the said decision of Court of Appeal, (comprising the Master of the Rolls Sir Raymond Ever-shed, Jenkins and Hodson, Lord Justices) is distinguishable, and has no application to the facts of the present case, and of no assistance to the counsel.
17. Another judgment relied upon by the plaintiff is single Judge judgment reported as 41 RPC 160. This case relates to a matter in which evidence had been recorded, and copyright in the catalogue established.
18. I think that in view of the Copyright Act and in view of the Press and Registration of Books Act, 1867 and in view of Article III of Copyright Convention revised at Paris in 1971, in my view, it is essential that for copyright to exist, there must be compliance with the requirements of the statute and claim to copyright made upon the copyrightable matter before any action in copyright can be sustained, and perfected by statutory remedies.
19. In this case, there is no claim for copyright in the brochure. This brochure is a single sheet of paper, having a number of folds. In my view, no copyright can be claimed on the basis of mere fact that there is some printed matter which has got words and sentences, photographs and tables but has no claim of the copyright.
20. The submissions of the counsel regarding Berne Convention that there are no formalities required for claim to copyright is not acceptable, as when no claim has been recorded, and no claim of reservation of copyright in printed matter would amount to a disclaimer of copyright.
21. In this view of the matter, I decline to entertain this suit for infringement of copyright in the "brochure" for ELBEE machines of the plaintiff.
22. Suit dismissed.