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(9) The defendants 1 to 3 have filed a joint written statement contending, inter alia, that the work of the plaintiff and of the defendants were derived from common sources and the works are different in and they are dissimilar, and therefore, there is no question of any infringement of Copyright. The plaintiff had acquiesced in the publication made by the defendants and therefore, the plaintiff cannot seek any relief. The defendants generally denied the claim of the plaintiff about the publication in 1986 and 1988. The defendants denied also the registration of the work of the plaintiff under the Copyrights Act. It is stated in para 6 of the written statement in the following terms: "WHAT is protected under the Copyright Act is not the original thought or information or expression of thought in a concrete form. The alleged literally work of the plaintiffs contained in the alleged mentioned and impugned series entitled Living Science totally lacks in contents, spirit and climax in newness and originality. One is entitled to develop the idea derived from the common source. The work of the defendant, though derived from the common source, is not in any way similar to the alleged work of the plaintiff on fundamental and substantial aspects of the mode of expression, where the same idea being taken from common source is developed in a different manner, similarities are bound to occur. Despite being the development of the same idea by the defendants is not similar on fundamental and substantial aspects of the mode of expression. Defendants presented and treated the same subject differently and that the work of the defendants has become a completely new, novel and protective work. There are material and broad dissimilarities between the literary work of the defendants and those of plaintiffs."

Again in para 10 of the written statement it is stated : "In order to constitute infringement of copyright in any literary work, it is well established that there must be present two elements. First there must be sufficient objective similarity between the infringing work and the copyright work or a substantial part thereof. Secondly, the copyright work must be the source from which the infringing work is derived. The work of the plaintiff and that of the defendants is from a common source but the defendants has given it a new embodiment in a tangible form not in any way substantially or otherwise similar to that of the plaintiff in any manner whatsoever. Defendants are not guilty of infringement of copyright."

According to the defendants the plaintiffs issued notices only to cover up the delay acquiescence and estoppel, by the defendants.

(10) The learned Counsel for the plaintiff Mr. Ajay Sahni brought to my notice the claims in the plaint and also the claims in the written statement. He referred to Section 2(0) of the Copyrights Act, 1957. He made a close comparative study of Volume Iv and Living Science and Volume Iv of Human Science and the other Volumes of the plaintiffs and the defendants. He relied upon the judgment of this Court in Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber & Anr." in 1995 Ptc (15) 1995,279 at page 283 in para 11.3 which reads as follows: "11.3 Govindan v. Gopalakrishna, was a case of compilation. It was held that though in the case of "compilation" the amount of originality will be very small but even that small amount is protected by law and no man is entitled to steal or appropriate for himself the result of another's brain, skill or labour even in such works. On the defense plea of common source it was held : "A person relying on it must show that he went to the common source from which he borrowed, employing his skill, labour and brains and that he did not merely do the work of the copyist, by copying away from another work".

About the evidence by the expertise the Privy Council observed : "Now the points upon which the experts rely have been correctly summarised by Miss Deeks in this respect. She says that the copying took place as is shown by similarities with regard to the plan - that means the plan of the books, the scheme of the book; that the opening chapters and various passages appearing in Mr. Well's book are mere colourable alterations of "The Web;" that there are certain phrasal identities and similarities, and there are certain mistakes; that the similarities, though trifling in some instances, are so numerous that an accumulation of them afford the strongest evidence of copying; and that there were common sources used for both works which could be shown to have been used in both cases together with the original additions made by Miss Deeks, so that when you compared the two, you found that Mr .Wells had used not only the common source, but had also modified it by using in addition to that the original manuscript of Miss Deeks. She relied on the choice and the sequence of the order of details, and she relied on the emphasis and proportion given to certain topics, those matters were carefully discussed in the Courts below: they have been dealt with by the judgments in both Courts, and they have been very fully discussed before their Lordships by Miss Deeks who in the course of her case has given every assistance to the Board and made it quite plain that the whole strength of the case has been put forward upon this appeal. Their Lordships wish to repeat what was said in the Courts below that Miss Deeks has argued the case with great candour and with great force."