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12. It is argued that in the present matter, the hybrid seed is created expressing the DNA sequence - such sequence is an original literary work enjoying copyright protection. The same hybrid cannot be produced without reproducing this literary work. Thus, Defendants, who have produced the same hybrid, have infringed the Plaintiff‟s copyright. It is also argued that the actual DNA sequence will be a matter of evidence, but evidence of fixation is not necessary to show the subsistence of copyright. It is argued that even before the amendment IA Nos. 388/2004, 1267/2004 & 1268/2004 in CS(OS) No.50/2004 Page 7 of the laws, in the UK and in the USA, computer databases and computer programmes were afforded copyright protection; in support, the Plaintiff relies on Apple Computer, Inc. v. Franklin Computer Corp., 714 F. 2d 1240, 1253 (3d Cir. 1983,) and Sega Enterprises Ltd. v Richards & Anr 1983 FSR 73.

may not be required under Indian law, knowledge and expression of an idea are required. Knowledge exists though it may be intangible. In the case of hybridization of cross pollination, the knowledge as to DNA sequencing is not known. Furthermore, it was IA Nos. 388/2004, 1267/2004 & 1268/2004 in CS(OS) No.50/2004 Page 11 submitted that the lack of patent protection to agricultural methods (hybridization being one such) would mean that the lawmakers did not want to confer intellectual property monopoly in that sphere, as a matter of policy. The enactment of the Plant Varieties Act, meant that protection could be claimed and granted in its terms; if however, an extremely wide copyright protection to DNA sequence database were granted, that would defeat and undermine Parliamentary intent. It was lastly urged that there was no originality in the mere copying or compiling of gene or similar hybrid sequences, which could be taken down in tangible form by any one. There was absence of minimum originality, an essential requirement for copyrightability; thus the claim for copyright protection had to fail. The Defendant‟s counsel lastly argued that the Plaintiff cannot also claim that its trade secrets were stolen or used, or that it was entitled to protect "confidential" information. Counsel submitted that the Plaintiff has prima facie failed to establish or prove that the information which the Defendants possess are of a confidential nature, and could not have been developed by them. It is not as if the process of hybridization or agricultural techniques which result in such new seeds, are unique, or deserve protection, of the kind claimed by the Plaintiff. These seeds can and are often commonly developed by farmers and other breeders. In any case, there is no material to warrant the grant of an injunction.

25. This Court had granted an ex-parte injunction which has subsisted all the while. The Court now proposes to discuss the rival contentions with respect to three aspects, i.e. whether copyright protection is granted under Indian law, in respect of the work, for which the Plaintiff claims reliefs; whether the Defendants used the Plaintiff‟s confidential information, unauthorizedly, and what should be the appropriate interim relief, if any.

26. Section 2(o) of the Copyrights Act defines „literary work‟ to include (among others) computer programmes, tables and compilations including computer databases. Section 2(y) defines „work‟ as meaning any of the following works namely: (i) a literary, dramatic, musical or artistic work,(ii) a cinematographic film, (iii) sound recording. Under Section 14, literary work is one of the items wherein exclusive rights can be claimed so as to amount to copyright. Indian law has recognized that compilation of databases is entitled to copyright protection. However, that would not end the debate. The law mandates that the work claiming protection ought to be original. Copyright law does not also grant the author of a literary work protection on ideas and facts. (Baker v. Seldon, 101 US 99 [1879], Nichols v. Universal Pictures Corp., 45 F.2d (2d Cir. 1930), RG Anand v. M/s Delux Films, (1978) 4 SCC 118) It is the creative expression of an idea or fact which gets rewarded by law, through copyright IA Nos. 388/2004, 1267/2004 & 1268/2004 in CS(OS) No.50/2004 Page 12 monopoly for a specified period. The law does not, however protect every expression, but grants such recognition and protection to expressions that are "original". This standard is incorporated by Section 13, in respect of every class of work. A literary work, in order to qualify as work in which copyright can subsist, must therefore be original.

39. In view of the above discussion, it is held that the Plaintiff has been unable to establish, prima facie, its claim for copyright protection in the databases, claimed by it; similarly it has not shown that the information, which it claims to be exclusive, is capable of protection, qualifying as "confidential information". Consequently, the ex-parte injunction granted at an earlier stage of the proceeding, has to be, and is, vacated. The application accordingly fails. IANo.1267/2004 filed by the Defendant for vacation of ex parte interim injunction granted to the Plaintiff, is accordingly allowed.