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The defendant thus submitted that there could be no copy-right so far as the subject of provincialism is concerned which can be used or adopted by any body in his own way. He further averred that the S motion picture was quite different from the play 'Hum Hindustani' both in contents, spirit and climax. The mere fact that there were some similarities between the film and the play could be explained by the fact that the idea, viz., provincialism was the common source of the play as also of the film. The defendant thus denied that there was any violation of the copy right.

"Intention to plagiarise is not essential to establish liability for infringement of a copyright or for plagiarism of literary property in unpublished books, manuscripts, or plays. One may be held liable for infringement which is unintentional or which was done unconsciously".

Similarity of the alleged infringing work to the author's or proprietor's copyrighted work does not of itself stablish copyright infringement, if the similarity results from the fact that both works deal with the same subject or have the same common source .. Nevertheless, it is the unfair appropriation of the labour of the author whose work has been infringed that constitutes legal infringement, and while identity of language will often prove that the offence was committed, it is not necessarily the sole proof; on the other hand, relief will be afforded, irrespective of the existence or non-existence of any similarity of language, if infringement in fact can be proved."

This case clearly lays down that a similarity here or a similarity there is not sufficient to constitute a violation of the copyright unless the imitation made by the defendant is substantial.

In the case of Corelli v. Gray(1) Sargent, J. Observed as follows:-

"The plaintiff's case is entirely founded on coincidences or similarities between the novel and the sketch. Such coincidences or similarities may he due to any one of the four hypotheses-namely (1) to mere chance, or (2) to both sketch and novel being taken from a common source: (3) to the novel being taken from the sketch, or (4) to the sketch being taken from the novel. Any of the first three hypothesis would result in the success of that defendant; it is the fourth hypothesis alone that will entitle the plaintiff to succeed".

(2) [196711 W.L.R. 723.

conclusion that there has been copying merely because of A similarity of stock incidents, or of incidents which are to be found in historical, semi-historical and fictional literature about characters in history. In such cases the plaintiffs, and that includes the plaintiffs in the present case, are in an obvious difficulty because of the existence of common sources".

"But I have read the whole of the script very carefully and compared it with the book and I find many similarities of detail there also. .. ......Again it is prima facie not without significance that apart from the burial of Captain Nolan the play ends with The very quotation which Mrs. Wodham-Smith used to end her description of the battle .......... .....As Sir Andrew Clark points out, some of these might well be accounted for as being similar to other events already in the scripts, and in any event abridgment was necessary, but that may not be a complete answer."