Criminal Appeal No. 71 of 1983
Decided On, 21 February 1983
At, High Court of Delhi
By, THE HONOURABLE MR. JUSTICE M.L. JAIN
M. L. JAIN J.
(1) THE respondent Shri R. K. . Jain filed a complaint against (1) Shri F. L. Berawalla and (2) his daughter Smt. J. T. Saboo-wala, (3) Shri M. M. Bhatt, (4) Bombay Law House and (5) the Metropolitan Book Co. , Pvt. , Ltd. , under Section 190 Criminal Procedure Code. read with Sections 51 and 63 of the Copy Right Act, 1957 (herein the Act). The complainant stated that he is the author of the Central Excise Law Guide (1st to 4th Editions). The first edition was published in 1977, the second in 1979 and e third in 1980 and the fourth in 1982. He also publishes a monthly journal. Excise Law Times. He is the original author of these publications and has become the first owner of the copyright therein. The copyright has been acquired on the basis of intellectual labour and hard work for nearly ten years, of good deal of collection of relevant material and information and, of its editing and expenditure in the preparation of its work and its publication and writing of detailed comments, and of giving expert views on various legal aspects.
(2) ACCUSED No. I Berawalla is the author of the offending publication Central Excises (Law and Practice) 2nd edition, 1982. Accused No. 2 is the co-author. Accused No. 3 is the publisher of the book. Accused No. 4 is the firm of publisher and Accused No. 5 is the seller of the said book. It was alleged that the accused person have infringed the copy right of the complainant by substantially, lavishly and vulgarly copying from his works, by printing and publishing and selling such infringing work. A copy of each of the 3rd edition of the Central Excise Law Guide, fourth edition of the same book, 5th edition and 9th edition of the Central Excises Tariff of India and a copy of the Excise Law Times for the month of July, 1978 were placed on record. He also produced the infringing copy. He also detailed the matter copied from his book by the accused and stated that his copy right has been infringed in the following manner :-
(a) Large number of the paragraphs have been copied out vertatim by the accused; (b) Most of the mistakes committed in the original work have been. repeated in the infringing work; (c) Headings have been copied in the infringing work from the original work of the complainant; 8 (d) If some omission have taken place in the original works of the complainant the same have also taken place in the infringing work; (e) The complainant has condensed judgments and departmental clarifications in his own style with great labour and expenses but the accused have copied the same without any recourse to the source. (f) The book contains personal views of the complainant. The same comments have been repeated vertatim by the accused persons in their infringing work. (g) The expert opinions given on the problems of readers of the Excise Law Times have also been copied by the accused persons and thus the matter which is out of context has also found place in the infringing work because of the copying from the original work of the complainant.
(3) BESIDES, inviting the court to punish the accused under the Act, the complainant also prayed for directing the general search and seizure of the infringing copies, the manuscript of the infringing work, bill book, receipt books, cash memo and delivery challans from 1-8-1982, all copies of the original works of the complainant, proof and print order of infringing publication and all other related material.
(4) THE learned Metropolitan Magistrate summoned Accused Nos. 1 to 4 by his order dated 29-10-1982 under Section 63 of the Act. He did not find any case against Accused No. 5. On the same day, he also made an order under Section 93 of the Criminal Procedure Code. for search and seizure of the premises mentioned therein and the seizure of the material mentioned therein.
(5) ON 15-1-1983 the learned Magistrate made an order to admit Accused Nos. 3 and 4 to personal bond in the sum of Rs. 2000. 00 till the next date of hearing for and directed counsel for Accused No. 1 and 2 to call their clients on the last date of hearing their personal appearance.
(6) THE present revision petition was filed by Berawalla and his daughter under Section 397, 401 and 482 Criminal Procedure Code. for quashing of the proceedings pending before the learned Magistrate. The substance of their case is that no offence prima facie is made out against the petitioners upon the allegations made by the complainant.
(7) I have heard the parties. Section 14 (1) of the Act, defines ‘copy right’ as follows :-
” (1) For the purpose of this Act, ‘copyright’ means the exclusive right, by virtue of and subject to the provisions of, this act,- (a) In the case of literary, dramatic or musical work, to do and authorise the doing of any of the following acts, namely :- (i) to reproduce the work in any material form; (ii) to publish the work; (iii) to make any adaptation of the work; The rest of the provisions are not material for our purposes. Such copyright subsists in original, literary, dramatic musical and artistic work, vide Section 13 of the Act. It is infringed when any person without licence granted by the owner or the Registrar of Copyrights or in contravention of the conditions of such a licence, inter alia, does anything the exclusive right to do which is conferred upon the owner of the copyright, vide Section 51.
(8) IN Sampath Ayyangar,a. C. v. Jamshedjikatiga, C. S. No. 350 of 1951 dated 26-4-1952 (Mad.) Quinquential Digest 1851-55 p. 199, it was held that in the case of the extracts from judgments and select committee reports not covered by copyright there will be infringement of copyright, if there has been expenditure of skill, taste labour and brains in selections by an author and the very same selections are copied by the subsequent author in whole passages servilely with all tell-take mistakes, which serve to show piracy. Similarly in the scheme of the book, arrangement of topics, headings, phrases, conclusions, criticism, common passages, common mistakes, idioms, etc. would be proof of copying, if similarity between two works was not due. to coincidence or copying from common un copyright matters and was essential and not inane, common and inevitable.
(9) IN Macmillan and Company Ltd. v. K. and J. Cooper, AIR 1924 PC 75, it was observed that the more process of selecting passages from works readily accessible to the public is not, but the difficulty in obtaining access to the originals or skill manifested in making or arranging the selection is sufficient to give to the selection character of an original literary work. In such a case copyright might well be acquired for the print of the selected passages. It is the product of the labour, skill and capital of one man which must not be appropriated by another, not the elements, the raw material, if one may use the expression, upon which the labour and skill and capital of the first have been expended. To secure copyright for such product it is necessary that the labour, skill and capital expended should be sufficient to impart to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material. To constitute piracy of a copyright, it must be shown that the original has been either substantially copied or to be so imitated as to be a mere evasion of the copyright.
(10) THE true principle is that one is not at liberty to use or avail himself of the labour which the other has been at for the purpose of producing his work that is, in fact, merely to take away the result of another man’s labour or, in other words, his intellectual property. What is the precise amount of the knowledge, labour judgment or literacy skill or that which the author of any book or other compilation must bestow upon its composition in order to acquire copyright in it within the meaning of the act cannot be defined in precise terms. In every case it must depend largely on the special facts of the case and must in each case be very much a question of degree.
(11) THE word ‘original’ does not mean that the work must be the expression of original or inventive thought. The Act does not require that the expression must be in an original or noval from, but that the work must not be copied from another work-that it should originate from the author.
(12) SO, in S. K. Dutt v. Law Book Co. and others, AIR 1954 Allahabad 570, it was observed that an author of a law commentary cannot claim that once he quoted a passage in his. book from either a decided case or a standard work, then no one else has any right again to quote that passage; Otherwise the defence of common source can rever be available to any one. Infringement comes in only when it can be shown that some one has instead of utilising the available sources to originate his work, appropriated the labours of another by resorting to a slavish copy or mere colourable imitation thereof. The animus furandi, that is an intention to take from another for purposes of saving labour, is one of the important ingredients to be found against a person before the can be damnified. Where the book contained the same mistakes as the first work did not and that was possible, only if the earlier had been copied, even in such a case, it must be shown that there were large number of such passages at least such numbers as could eliminate the element of chance that always is there in such matters.
(13) IN N. T. Raghunathan and another v. All India Reporter Ltd. , AIR 1972 Bombay 48, it was said that where the defendant prepared head notes for his digest not from original judgment or any other source but only from the matter in plaintiffs notes and head notes, it prima facie amounted to piracy.
(14) IT, therefore, follows that the complainant must prima facie establish originality and the copying complained of must be substantial and should not be a mere chance occurrence. It should further be shown that the copying affects the fruits of his labour.
(15) R. Jain has submitted details to show the extent and amount of copying done by the accused which just cannot be brushed aside here and now as trivial. The petitioner have referred to the various cases and sources from which and not from the books of the complainant, the accused assert, they have copied. ‘ They also claim that they are lawyers and have been pioneers in the filed faving first come out with their work in 1970. The alleged copying if at all does not exceed more than 10 pages spread over the work of 959 pages of the petitioners while the work of the respondent (Part 1) covers only 696 pages.
(16) I have examined the alleged infringements in details in the complaint and compared them with the source material that is the cases, the journal and the departmental orders and it seems to me that the paragraphs complained of are not lifted there from but from the book of the respondent who has devoted labour and skill in preparing his book and can legitimately claim originality. Thus, a prima facie case has been made out against the petitioner which calls for trial. I am indeed, unable to say from the complaint and the material so far placed before the court, that there is no case or that the learned Magistrate has not applied his mind to the matter before him before making the impugned orders. Worders. What the extent of copying is and what amount of damage has been done to the complainant have got to be examined by the Magistrate in the first instance. At one time, I had thought of doing so here, but upon reflection, I think it would not be appropriate to make detailed comments at this stage by this court. The fact that the accused are lawyers of repute and have been pioneers in the field does not give them a right to infringement of the copyright of the complainant.
(17) THE respondent had also raised an objection that the revision petition is barred by time in some respect and unduly delayed is other because the orders challenged are of 29-10-1982 and of 15-1-1983 while the petition was filed on 15-3-1983. The petitioner have alleged that the copies of the orders were not made available to them as the learned Magistrate was refusing to give copies unless the petitioners appeared in person. In the alternative, they pray for condonation of delay. As far as the question of limitation and delay are concerned, it is not of much weight because the title of the petition shows that Section 482 Criminal Procedure Code. is also invoked and I have also proceeded on that basis. This objection is rejected.
(18) SO far as the orders of 29-10-1982 relating to summoning of the petitioners and to the seizure of the offending publication are concerned, I see no scope for interference as I see no illegality, irregularity, impropriety, abuse of process or injustice in them. As respects the order of appearance, the petitioners may make an application to the Magistrate, for exemption under Sections 205/317, Criminal Procedure Code.
(19) THE petition is dismissed. The parties shall appear before the learned Magistrate on 13-3-1984.