V. Jagannathan, J.
1. A flower is inseparable from its fragrance. Waves do not exist without the sea. There cannot be 'night' without the day. 'Creation' does not exclude its creator. 'YAKSHAGANA' cannot be thought of without the name of Dr. Kota Shivarama Karanth (for short 'Dr. Karanath').
2. Dr. Karanth, who combined in himself the role of a Novelist, Play writer, Essayist, Encyclopediationst, Cultural anthropologist, Artist, writer of Science, Environmentalist, a Jnanapeeta Awards, all rolled in one personality, was born in the year 1902. He left his indelible impressions on the literary Map of Karnataka. He died in the year 1997. Three years before his deaths Dr. Karanth got his 'Will' registered on 18.6.1994 and bequeathed copyrights of his 'literary works' to Smt. Malini Malya (plaintiff).
3. A news item published in 'Vijay Karnataka' News paper dated 19.9.2001 revealed that the Yakshagana Ballet directed by Dr. Karanth was perforated at New Delhi. This gave raise to the plaintiff filing a suit against the defendants praying for a declaration that the plaintiff' is the exclusive copyright holder in respect of Yakshagana Ballet and a direction to the appellants to pay damages to the plaintiff towards infringement of her copyright. The trial court decreed the suit of the plaintiff in part and the defendants are in appeal This in abort is the alpha and omega of this case.
4. The plaintiffs case is that Dr. Karanth being the foremost authority on Yakshagana, having spent much of his life on reviving a dying-art, wrote number of books on Yakshagana apart from articles and pamphlets and in course of time, Dr. Karanth evolved a new distinctive dance, drama troop or theoretical system which was named by him as 'Yakshagana Ranga' which in his own words mean 'creative extension of traditional Yakshagana'. Dr. Karnath apart from bringing in changes in the traditional form of Yakshagana on all those aspects viz., Raga, Tala, scenic arrangement, costumes etc., and also composed 7 verses or prasangas for staging Yakshranga Ballet and these prasangas are:
1) Bhishma Vijaya (2) Nala Damayanthi (3) Kanakangi or Kanakangi Kalyana (4) Abhimanyu or Abhimanyu Vada, (5) Chitrangadha or Babruvahana Kalaga (6) Panchavati and (7) Ganga Charitha.
5. It is the specific case of the plaintiff that all these prasangas are the creative works of Dr. Karanth and by bringing about changes in various aspects of Yakshagana, Dr. Karanth was successful in making the people understand and appreciate Yakshagana in a much better way and thereby his contribution to Yakshagana almost led to reviving of the dying folk play. Even persons who were not well versed in understanding Kannada language also appreciated the Yakshgana ballet because of the creative work of Dr. Karanth.
6. Having thus laid the foundation, the plaintiff by referring to the will executed by Dr. Karanth on 18.6.94 took up the stand that Dr. Karanth had bequeathed thus 'copyright' in respect of 'literary and artistic works' in favour of this plaintiff and as Dr. Karanth was also a original copyright holder of the 7 prasangas, the plaintiff by virtue of the bequeath under the Will, had inherited the copyright in respect of 'Yaksharanga ballets' and therefore, it was impermissible for anyone much less the defendant to organise public performances of the 7 prasangas without the plaintiff's permission.
7. As one of the prasangas namely 'Abhimanu Vadha' was staged at New Delhi, as per the News paper report, the plaintiff therefore, had to take recourse to fifing of a suit as the appellants herein being the defendants did not seek the plaintiff's permission. As the defendants had committed infringement of her copyright by staging the prasanga 'Abhimanyu Vadha' at New Delhi, the plaintiff sought for a declaration that she be declared as the exclusive copyright holder in respect of the above mentioned 7 Yakshagana Ranga Ballets and also claimed damages from the appellants for infringing her copy rights and for other reliefs.
8. The appellants herein in their written statement repelled the above stand of the plaintiff, by contending that although there can be no two opinions about the literary greatness of Dr. Karanth, yet it is not correct to say that the distinctive dance system named as Yaksharanga was the contribution of Dr. Karanth. They also contended that the very concept of copyright claimed by the plaintiff, does not apply to the ancient folklore Yakshagana and even if the stage art form was suitably modified, that does not give raise to copyright. As far as the 7 prasangas are concerned, the appellants contended that the matter found there in were written by different persons in the decades past and therefore, the claim of the plaintiff for copyright is misconceived. It is the specific case of the appellants that Dr. Karanth was an office-bearer of Yakshagana Kendra and the Yakshranga is the performing ensemble of Yakshagana Kendra. The first appellant being the registered society, the 2nd appellant trust has been running the collage known as M.G. college Udupi, and the first appellant society has been providing services to the trained students and therefore, any development of Yakshagana was then a part and parcel of Yakshagana Kendra. The Yakshagana Kendra consists of artists and students and through them Dr. Karanth was able to stage the ballets and Yakshagana Kendra also received funds from the Government.
9. It is the case of the appellants that the performance of Yakshagana even in the ballet form by Yaksharanga will not be an infringement of copyright because such performance is done in the course of the activities of the 2nd appellant educational institution where Yakshagana art was started. It was, therefore, farther contended that the plaintiff cannot claim any copyright and there is no such valid transmission of such right to the plaintiff by Dr. Karanth and the manner in which the 7 prasangas are performed by the Yakshagana Troop is such, that the ballet form conceived by Dr. Karanth has not been adhered to in the manner in which that Dr. Karanth had conceived the Yakshagana Ballet. On the other hand, it is contended that the artists who performed the Yakshagana were persons who are not trained by Dr. Karanth and therefore, there cannot be any violation of the alleged copyright.
10. The above pleadings in essence, gave rise to the following issues being framed by the trial court:
i) Does plaintiff prove that late Dr. Shivaramaji Karanth had acquired copy right in respect of seven Yakshagana prasangas and also in respect of Yakshagana dramatic or theatrical form i.e, Bhishma Vijaya, Nala Damayanthi, Kanakaangti or Kanakangi Kalyana, Abhimanyu or Abhimanyu Vadha, Chitrangadha or Babruvahana Kalaga, Panchavati Charitha followed in the plaint?
ii) Has the plaintiff became entitled to the said right under the Registered Will dated 18.6.1994?
iii) Does the plaintiff prove that her right under the said Will was infringed by the defendants?
iv) To what relief's the plaintiff entitled?
11. The learned trial Judge upon considering the documents produced by both the sides in the absence of oral evidence being let in and upon hearing the learned Counsel for the parties, answered the first three issues in favour of the plaintiff and the result was that the suit of the plaintiff was decreed in part by holding that the plaintiff has got exclusive copyright in respect of the 7 prasangas and that she is entitled to the said copyright as a residuary legatee and further the trial court by granting permanent injunction directed the appellants heroin and their employees or agents from performing the above 7 ballets/prasangas in the manner, as distinctly evolved by Dr. Karanth.
12. I have heard the learned Senior counsel Sri K.G. Raghavan for the appellant and Sri T.N. Raghupathy for the respondent.
13. The contentions put forward by Sri. K.G. Raghavan for the appellants are as under: The modifications/alterations said to have been made by Dr. Karanth to the age old Yakshagana Ballet, by renaming as 'Yaksharanga prasangas' do not constitute original literary or dramatic work under Section 13(a) of the Copyright Act; hence no copyright subsists in the said modified/ altered work. As no copyrights exists in an idea Dr. Karanth, only conceived of new ideas to project old styled dramatic works. There is no material to show that the 7 Yakshagana prasangas are the creative extension of traditional Yakshagana and there is also no material placed to show that the staging of any of the 7 prasangas had left an impressions in the minds of the viewers, that, the said prasangas were by and large, copies of Dr. Karanth's adoption of Yakshagana.
14. Even if a separate and an independent copyright can be said to have been in existence in respect of 6 Yaksharanga prasangas, the said copyright vests with the appellants herein as Dr. Karanth had authored 7 prasangas while he was in the course of employment with the appellants. The residuary bequest made in favour of the plaintiff does not entitle her to claim any right; much toe copyright in respect of dramatic works of Dr. Karanth.
15. Elaborating the above submissions, the learned Senior counsel Sri. K.G. Raghavan referred to the propositions of law laid down by the Apex court in the case of (1) R.G. Anand v. Deluse Films AIR 1976 SC 1613, (2) N.T. Raghunathan v. All India Reporter AIR 1971 Bom. 48 and (3) Macmillan & Co., v. K & J Cooper 1923 L.R.109 and contended that copy right does not exist an idea but it is only inform in as much as violation of copyright in such cases will be confined to the form, manner, arrangement and expression of the idea by the author of the copy right work. By referring to the said decisions, the learned senior counsel also submitted that where the source being common, the similarities are bound to occur and in such cases the courts should determine, whether or not the similarities were concerning the fundamental or substantial aspects of the mode of expressions, adopted in the copyrighted work, and where the theme is the same, but is presented and treated differently, so that the subsequent work becomes completely a new work, no question of violation of copyright would arise.
16. Relying on the aforesaid principles, it was contended that the theme of each of the 7 prasangas cannot be said to be this original literary work of Dr. Karanth. But the changes brought about by Dr. Karanth whether in respect of Raga, Tala, or scenic arrangement or costumes can only be considered as minor changes only. Therefore, it cannot be said that the 7 prasangas (original literary or dramatic work) gave raise to copyright in them. The said submission was sought to be re-enforced by referring to various prasangas from Ex.P.60; a book titled 'Yaksharangakkagi' written by Dr. Karnath and learned Counsel also referred to certain passages from the Autobiography of Dr. Karanth namely '10 faces of a crazy mind' a translation of Dr. Karanth's autobiography in Kannada viz., 'Huchchumanasina Hattu Mukagalu'. the said translated work is Ex.D.1.
17. By referring to certain passages from both these works, learned senior counsel submitted that even Dr. Karanth himself did not claim any copyright in respect of 7 prasangas and therefore, it is too much on the part of the plaintiff to claim such a right in these works or in the Yakshagana ballet. It was also submitted that as Dr. Karanth did not bring about substantial changes in the field of Yakshagana, the question of any copyright being claimed by the plaintiff, therefore, will not arise. Pointing to the will executed by Dr. Karanth, it was submitted by Sri. K.G. Raghavan that all that Dr. Karanth had bequeathed in favour of the plaintiff is only a copy right in respect of 'literary work and books', but not in respect of 'dramatic work' and therefore, the question of copyright in dramatic work also biting bequeathed in favour of the plaintiff cannot be inferred from the contents of the will which document in marked as Ex.P.1. No foundation is laid by the plaintiff to show that the dramatic work also comes within the bequeath made in flavour of the plaintiff.
18. As regards the literary work is concerned, it is argued that the dramatic work is different from literary work as could be seen from Section 13 of the copy right Act. In the absence of material being placed before the trial court, by the plaintiff with regard to the form in which Yakshagana ballet existed in the past and the change brought about by Dr. Karanth, the plaintiff cannot claim any copyright in the dramatic works of Dr. Karanth. There is also no evidence placed in order to establish the creative extension brought to the traditional form of Yakshagana by Dr. Karanth, more minor changes, which can be equated as cosmetic changes, do not in themselves give rake to copyright and the plaintiff has, therefore, failed to establish her case by placing sufficient material in this regard. As such the trial court was in error in answering issues No. 1 to 3 in favour of the plaintiff.
19. Another facet of argument of the learned senior counsel Sri. K.G. Raghavan to that the plaintiff can be considered only as a 'residuary legatee' as per the language used in the will and therefore, she is not entitled to claim copyright in respect of the dramatic works of Dr. Karanth, and by virtue of being the beneficiary as a residuary legatee. The trial court was, therefore, in error in holding that, as a residuary legatee, the plaintiff is entitled to copyright in respect of 7 prasangas.
20. As far as infringement of copyright to concerned, the learned senior counsel submitted that there is absolutely no material placed before the trial court by the plaintiff to show as to in what manner there has been a infringement of Yakshagana Ballet of Dr. Karanth when the performance was staged at New Delhi. As the evidence is lacking in this regard and in the absence of any material placed to show the resemblance between Yaksharanga Ballet as performed on the directions of Dr. Karanth and the one that was staged at New Delhi and in the absence of any evidence let in to show that the impression that the viewer got while watching the performance at Delhi was that of the performance resembling in all respects the performances staged under the directions of Dr. Karanth, the question of infringement of copyright does not arise.
21. In support of the submissions, the learned senior counsel for the appellant placed reliance on the following decisions/authorities:
1) P. Narayanan-- Copyright & Industrial Designs
2) Copinger and Skone James on Copyright- 15th Edition
3) Intellectual Property, Patents, Copyrights and Allied Rights.
4) Odgers Constructions of Deeds and Statues
5) (1908) 1 CHILDREN 503 Tate v. Thomas
6) (1920)1 KB 821 Tate v. Fullbrook
7) 1923 LEGAL REPRESENTATIVES 109 Macmillina & C. v. K & J Cooper
8) AIR 1971 BOM 48 N.T. Raghunathan v. All India Reporter
9) : [1979]1SCR218 R.G. Anand v. Deluxe Films
10) AIR 1985 FSK 525 Wiseman v. George Weidenfeld & Nicolson Ltd
11) 1988(3) All ER 949 Interlego AG v. Tyco Industries
12) 1989(2) All ER 1056 Green v. Broadcasting Corporation of New Zealand
13) 1993 FSR 455 Macmillan Publisher v. Thomas Reed Publications
14) AIR 2001 DEL 185 Eastern Book v. Navin J Desai
15) (2002)6 Kar.L.J. 232 Prestige Housewares Ltd. v. Prestige Estate & Properties.
22. Sri. T.N. Raghupathy, the learned Counsel for the respondent/plaintiff referring to the above contentions, submitted that, at the out set, as both the parties did not lead any oral evidence and as the authenticity of the document produced have not been questioned and so also the executions of the will by Dr. Karanth, the bequest made to favour of the plaintiff in respect of literary works and books will also include all the dramatic works authored by Dr. Karanth. As far as the contribution made by Dr. Karanth towards reviving Yakshagana is concerned, learned Counsel took me through the autobiography of Dr. Kurnath namely 'Huccbu Manasina Hathumukagalu' to submit that a plain reading of the autobiography of Dr. Karanth as well as Ex.P.54 brochure of Yakshagana and Ex.P.55 the book written by Dr. Karanth on Yakshagana will not fail to convince the discerning reader, about the enormous contribution made by Dr. Karanth towards traditional folklore Yakshagana.
23. But it was also submitted that Dr. Karanth did deep study and research into the ballot form by making several experiments in different areas of Yakshagana ballet and made changes in all minute details so as to make the Yakshagana folklore very popular among the people. Minute care was taken by Dr. Karanth with regard to Raga, Thala, scenic arrangement, cosmetics and even with regard to the appearance of the actors on the stage and use of various musical instruments and thus it was on account of Dr. Karanth's deep study and enormous creative power that the 7 prasangas came to be acclaimed not only in Karnataka but in the entire country, and its fame spread to several countries out side India. The documents produced by the plaintiff particularly Ex.P.2 would go to show that the appellants recognized the work of Dr. Karanth in the field of Yakshagana. By referring to Ex.P.59 which in a pictorial description of Yakshagana-Folk play, it waft submitted that Dr. Karanth brought about the transformation in the manner in which Yakshagana ballet was performed and other documents Ex.P.57 and Yaksharangakkagi Pravasa and Ex.P.60 Yaksharangakkagi testify this fact. It was submitted that contribution of Dr. Karanth is substantial towards Yakshagana Ballet.
24. As far as the contentions of the appellants that Dr. Karanth was under the employment of the appellants is concerned, submissions of the learned Counsel Sri. T.N. Raghupathy is that it is inconceivable that a man of the stature of Dr. Karanth would have been an employee under this appellants and there is absolutely no material placed by the appellants to show that Dr. Karanth was under their employment. Therefore, referring to the absence of material placed by the appellants in proof of the said contention taken and having regard to Ex.P.14 produced by the plaintiff, it was submitted that the trial court had rightly concluded that to treat Dr. Karanth as an employee of Yakshagana Kendra or working under the contract of employment, can never be expected by any stretch of imagination. Neither it can be said that the trial court was swayed by the personality of Dr. Karanth. By referring to para 3 of the plaint, it was submitted that the appellants herein have not traversed the averments made by the plaintiff with regard to the 7 prasangas having been composed by Dr. Karanth and therefore, it will have to be deemed as having been admitted by the appellants that it was Dr. Karanth who did compose the 7 prasangas.
25. As far as the argument of the learned senior Counsel for the appellants that mere marking of the document to not a proof of its contents, is concerned, the submission of learned Counsel Sri. T.N. Raghupathy is that both sides placed reliance only on the documents and led no oral evidence and even in the written arguments filed by the appellants, no such stand was taken with regard to the contents of the document marked. Moreover, all the documents were marked by consent of both the parties and the appellants have failed to place any evidence to show that the contents of the said documents are incorrect. Therefore, the contention put forward by the appellant's counsel in regard to the documents are concerned, it is only ah after-thought and as such the said ground urged by the appellant's counsel does not carry much conviction behind it.
26. As to the infringement of copyright is concerned, the submissions made by the learned Counsel for the respondent is that the trial court did not rightly grant any damages to the plaintiff because the plaintiff had not placed material to show as to how far and to what extent the performance at Delhi was in close resemblance to Yaksharanga Ballet of Dr. Karanth and further more the plaintiff has not filed any cross objections or has questioned the said decision of the trial court and hence no fault can be found with the trial Court's judgment. As far as the plaintiff claiming the copy right is concerned, it is submitted by the learned Counsel for the respondent that the 'Will' if carefully perused, would make it clear that Dr. Karanath bequeathed not only the copyright in literary works and books in favour of the plaintiff, but he has also bequeathed to the plaintiff all that remains in respect of bank deposits or other assets and properties not mentioned earlier in the will to the plaintiff as a residuary legatee. Therefore, it is not correct to contend that the plaintiff had no copy right in literary works and the books of Dr. Karanth and that she only received as a residuary legatee what was mentioned by Dr. Karanth in para 12 of his will.
27. Learned Counsel Sri. T.N. Raghupathy also placed reliance on the decisions referred to by the appellants counsel, in particular to the decision of the Apex court in R.G. Anand v. Deluxe Films and in N. Raghunathan v. All India Reporter case. Apart from referring to the above decisions, the learned Counsel also referred to the observation made in Lal's commentary of 'copy right Act' and to other literature on the subject.
28. In the light of the contentions urged by the parties as above and having regard to the decisions cited, the following points arise for consideration;
i) Whether the copyright bequeathed to the plaintiff by Dr. K. Shivarama Karanth in respect of his literary works and books includes the seven prasangas also?
ii) Whether the plaintiff is disentitled to claim copyright on the ground that she in a residuary legatee under the will?
Point No. (i):
29. Before I venture to answer the point under consideration, it is necessary to explain the following terms in order to appreciate the case of the parties in proper perspective.
30. 'Yakshagana' is given the meaning 'dramatic composition by Rev. F. Kittel in his well-known dictionary - 'A Kannada- English Dictionary'. The said term is also called, as a distinct folk art of Karnataka, Even according to the brochure published by the Yakshagana Kendra, M.G.M. College Campus, Udupi, which is marked as Ex.P-54, the term 'Yakshagana' has been described to mean the theatre form of Karnataka and in its concept of total theatre dance, music, dialogue and decor, all are harmoniously blended. Even according to Dr. Karanth, Yakshagana means a particular style of music with characteristics of its own, distinct from other two system of Indian music i.e., Hindustani and Karnataka.
31. 'Ballet' is explained in The New Encyclopedia, Volume-I, 15th Edition, as theatrical dance in which a formal dance technique is combined with other artistic elements such as music, costume and stage scenery. The academic technique itself is also known as 'Ballet'.
32. Thus, from the above meanings given to the terms 'Yakshagana' and 'Ballet', it can be said that Yakshagana Ballet is a form of musical dance drama played in the open, air and also called as 'Open-air Drama' (Bayalaata) and it combines in itself the forms which are, written literature music to set the song to proper tunes and the elements of scenic arrangement, costumes all get interwoven into the Yakshagana Ballet.
33. It is the case of the plaintiff that Dr. Karanth had brought about a sea of change in the Yakshagana Ballet by making changes in respect of raaga, thaala, scenic arrangement costumes and also the manner in which the compositions are sung. In other words, Yakshagana combines in itself more elements to produce an effect of fantasy and imagination - song, dance, speech, acting, costumes and background music all go into the final product i.e., Yakshagana Ballet
34. As far as the contribution of Dr. Karanth is concerned, the documents produced which are mostly books and brochures, some of which have been authored by Dr. Karanth himself, are the only material placed before the trial court to ascertain the contribution made by Dr. Karanth to Yakshagana Ballet. At this stage itself, I would like to mention that though the learned Counsel for the appellant strongly contended that mere production and marking of documents itself cannot be construed as proof of the contents thereof, the said submission does not carry much conviction behind it for more than one reason.
35. First is that, all the documents that were produced before the trial court were marked by consent of both parties and either in the written arguments filed or in the course of the arguments before the trial court, the appellant did not question the authenticity of the works of Dr. Karanth which were marked in evidence by consent nor was there any material placed by the appellant to show that the contents of various books marked in evidence were not correct. Therefore, having accepted the said position before the trial court and also having relied, on the very documents, which are books and brochures, even in the course of arguments before this Court, it is not open to the appellant now to contend that mere marking of documents is no proof of the contents thereof. In fact, the learned Counsel for the appellant also referred to various passages in the autobiography of Dr. Karanth as well as the other work to contend that the changes brought about by Dr. Karanth to Yakshagana Ballet were only on the fringe. Under the said circumstances, I do not find any merit in the said contention urged with regard to the documents which were produced and marked by consent of both parties. In this connection, I also place reliance on a decision of the Apex Court in the case of P.C. Purushothama v. S. Perumal : [1972]2SCR646 and in the said decision, the Apex Court has held that once a document is properly admitted, the contents of the documents are also admitted in evidence, though those contents may not be conclusive evidence.
36. Having said thus about the documents, it is proper at this juncture to refer to the autobiography of Dr. Karanth to find out the extent of contribution made by Dr. Karanth towards resurrecting the dying art Yakshagana.
37. Ex.D-1 to the translated version of the autobiography of Dr. Karanth and it is translated by Shri H.Y. Sharada Prasad and it is titled 'Ten faces of a crazy mind'. Referring to Yakshagana Prasanga and the changes brought about, Dr. Karanth says thus:
As this mode of music was a part of drama, it could be employed for expressing a variety of emotions and moods. In classical music we have only one dominant sentiment, namely devotion. But here in Yakshagana I found hundreds of songs bringing out other emotions as well. When I went deeper into Yakshagana literature, I found the names of hundreds of ragas in old prasangas (plays). Apart from the ragas of the Hindustani and Karnatic schools there were many ragas distinctive to Yakshagana, such as Durdhari, Panchagati, Kannada, Hoovu, Kore, Mechchu, Mechali. This discovery astonished me. I took, the help of Yakshagana Bhagavatas and friends who knew the two classical traditions and wet out on research. I found that our Bhagavatas have wholly forgotten or were ignorant of the old ragas. Also, because they had not learnt their music by first grasping the ragas but only by imitating some known compositions, they drifted from raga to raga without realising it. Even so, after three years of pursuit, it was possible to locate and reconstruct as many as sixty-four Yakshagana rages. This quest has bean described in Yakshagana Bayalata. I also realised that Yakshagana was not just a fold form by an independent, full-fledged school of music.
38. At pages-168 and 169 of the autobiography, referring to the research and the experiment done by him in Yakshagana, Dr. Karanth has this to say:
While doing this, I also researched its music, I was able to collect a large number of ragas which had fallen into disuse. I played them back to a large number of Bombay friends. I did not know why Yakshagana's reach should be narrowed down by linguistic constraints.
Earlier, while carrying out experiments in Yakshagana, I had felt that a dance form with such arresting costumes and such powerful music might be presented in ballet form so that people of other language, regions could also take to it. If this attempt was to succeed, we would require Bhagavatas and professional dancers who would find the venture remunerative.....I tried with the help of the Bhagavatas to bring out lost rages back into vogue. I tried to see that the song served the purposes of both music and literature. To add to the appeal of the orchestra, I included the violin, the clarinet and the saxophone. In two months, we had two Yakshagana operas ready-- Bhishma Vijaya and Abhimanyu Vadhe.
39. At page-201 of the translated version of his autobiography, we find the following:
All my thoughts were on how the full potentialities of an art medium could be realised. I did not consider the purpose of music to play acrobatics with ragas and talas, which would be a misuse of the medium. In Yakshagana, in particular, my aim was to present an old prasanga in two hours through a combination of dance and song which meant a rapport among raga, tala and mood. Whatever the song had to communicate had to be put across through dance and acting. As the normal practice was to sing in high pitch, we should take the help of the clarinet or the saxophone to provide the bass support. In dialogues and war scenes, two Bhagavatas could be employed instead of just one. And to provide some respite for the singer, we should use the violin. We should improve the choreography so that the stage looked filled with movement even in scenes other than the court scenes and battle-scones.
40. That Dr. Karanth took minute care in every aspect of the Yakshagana Ballet is also clear from the following statement found at page-203;
One of the main problems is that our traditional Bhagavatas could sing only in the way they knew. I did not add anything to that tradition, but instead of the emphasis on the beat, I put emphasis on acting out the emotions suggested by the words in the songs and expression of mood through music. As director I sang the songs for the benefit of the artistes and demonstrated to them the gesture, posture and facial expression that best brought out the spirit of the play. Of the two Bhagavatas, Naranappa Uppoor grasped, my ideas fully. But Navwda was unable to do so, and in the second year, in his place I co-opted Rama Ganiga. I had the same experience with the maddale. It was difficult for one of the players to exercise self-restraint in regard to the volume. I was able to get a drummer called Ardi Thimmappa, to play along with Hiriyadka Gopala. Another advantage of doing the rehearsals in Puttur was that I was able to get a local player called Gopala Krishna Dogra who could play both clarinet and saxophone. I found that the saxophone gave more strength and stability to the lower notes that the clarionet.
41. That Dr. Karanth thus brought, about transformation in the Yakshagana Ballet and enabled the folklore tradition to move far ahead with the help of his creative extension of the tradition is also referred to by him and here is what Dr. Karanth says at pages-288 and 289 of the translated version of his autobiography:
Tradition imposes its inhibitions. New hopes and new yearnings break those inhibitions. Tradition may yet persist and assimilate the new force. Sometimes people may deliberately erase some aspects of it. Or, because of the collective forgetfulness of a people, many aspects maybe lost. In the name of entertaining the masses, or owing to the craze for novelty, several art media may be stuffed with incongruous bits and pieces that load to their distortion.
I saw this happen in Yakshagana. This form cast a spell on me a long time ago. I tried to identify those elements of Yakshagana which represented its true tradition - in inspiration, in intent and in drew, music and dunce. If we lost them, we would not be able to make up for them through words. So my task, I though, was to reclaim and preserve original ragas and dance modes, costumes and ornamentation and make-up peculiar and intrinsic to Yakshagana.
42. Ex.P-55 to another work of Dr. Karanth, which is titled 'Yaksagana', which has a foreword by Shri H.Y. Sharada Prasad and in this, Dr. Karanth writes thus in respect of his contribution to Yakshagana (at pages-176-179):
On the stage, these themes lasted 6-8 hours' duration - with the singing of 250-300 songs. My first Job then was to select the themes from the exiting lore. We realty had Bhagavatas who mastered thirty or more plays that were musically rich and linguistically (in Kannada) very, very simple. I could tackle them with the help of elderly Bhagavatas who could sing out an entire play continuously for 9 hours, i.e., from 9 p.m. to 6 a.m.
From such a lot, my job was to choose interesting scenes, whose musical text was equally poignant. Such veterans like Sheshagiri Kini and Januvarkatte Gopal Krishna Kamath who had served the theatre for decades, could enlighten me a lot. I had to choose some thirty or forty songs from each play and get them recorded. In normal plays each composition had 4-5 stanzas, the first line would spell out its motive (Pallavi) and substantiate it in 'anupallavi' and the later stanzas illustrate a situation or these further. It is such choice in teems of language content and musical depiction that guided toy words which consisted of expounding its contents with necessary facial expressions, body flexion and stepwork.
It is here that I had to create necessary movements in dance, with no excessive display of stepwork and tala display by the dancer or by the overbearing drummer.
Between 1960-65, I chose a few professional Bhagavatas, accompanists and dance depictors. The Last group had no occasion to speak. Their work consisted of rhythmic body flexions, footwork display and movements with gestures that are used in actual life. With this troupe chosen from the profession, I exhibited the plays each year -giving performances from Bangalore to Bombay and back - visiting Hubli, Belgaum, Bhadravati, etc., a total of eight to ten performances that lasted for a month. I was highly aided by a violinist or two who accompanied the Bhagavata and could relieve him after the portion of a song was flung and its contents depicted in dunce. The high pitched can be was used only during introduction of characters and battle, but no more in tragic or pathetic situations. Violin took up the lead. The maddalegar or drummer had to follow the 'bhava'...I had to create impressive ornaments like bangles, bracelets, girdles and necklaces. There too, the headgear called Mundas, a huge elephant-ear shaped turban, hid only red or black background over which gold and silver ribbons were wound to give an impression of radiant rays. Here also, too much ornamentation used to drown the effect of radiating stripes..
Many of these plays have common characters like a sage, down or servant etc., who enter the stage as messengers to characters of these plays, as the theme demands. They come in shabby dresses. I had to redo this old type with cloths of white material, with red border. They were in contrast to the other fantasy roles of a play.
In the good old days, the Bhagavata, his assistant (Sangeetgar) and the drummer too had a specific dress. Now they enter in all sorts of dress and figure as an eyesore to a fantasy drama.
In my own plays, I don't like the musicians and instrumentalists to figure on the stage at all. They squat on the left or right side of the stage, visible only in dim light. The stage is meant only for the characters of a play.
I have retained all old choreography, whenever the characters are introduced, I have created a few new ones in situations like 'water-sports', battles, moving in chariots etc. A lot of choreography has gone in to make the 'drama' more spectacular and also more intense.
The one main change that was introduced was in the prominence given to songs sung on the stage. Only old songs which depict action and the emotions of characters involved, are song by the Bhagavata. I often ask whether it is the pertinent musical form, that is essential, or the demand of the though content that should gain prominence. This is what I mean lay 'form' and 'content. Dance has to befit these elements. It is this element that speaks for the wealth of Yakshagana music. In the depiction of dialogues two voices may complement each other..
The dancers will have to depict this content an the stage. This needs repetition and so is followed by this violin. Since Yakshagana music stresses the third octavo and uses very little of the first, I had to choose some musical instrument that has to make good the gap. I tried first the Clarionet and now am using; the Saxophone. In South India, old time wind instruments like Nadaswaram have yielded place Saxophone.
43. Ex. P-60 is another work by Dr. Karanth titled and speaking of the seven prasangas and the changes brought about by him, the author says thus:
44. Ex.P 58 is a brochure issued by the Yakshagana Kendra, Mahatma Gandhi Memorial College Campus, Udupi, and referring to Yaksharanga -Performing dance ensemble of the Yakshagana Kendra, the following information is given:
YAKSHA-RANGA represents the culmination of two decades long effort of Dr. Kota Shivaram Karanth to restore yakshagana folk theatre of Karnataka to its rightful place in the comity of national art, particularly the realm of dance-drama. In its concept of total theatre with dance, music, dialogue and decor all harmoniously blended to create maximum artistic effect. Yakshagana lays claim to be equal to any of the best but bettor known dance forms of India.
In the very same document, we also find the opinion of Janine Bregon, a French Artist, and here it is reproduced:
Behind this unique theatrical experience is the genius of Dr. K.S. Karanth, whose imagination has created this brilliant symphony of music and pantomime, verily of an international class totally satisfying to the mind and the lenses.
45. I have referred to the excerpts from the above documents because, the parties did not load any oral evidence to throw light on the contribution made by Dr. Karanth towards bringing about changes in Yakshagana Ballet and the Seven prasangas in regard to which the plaintiff is claiming copyright Therefore, it has become inevitable to look to the documents produced by the parties to find out the extent of contribution made by Dr. Karanth to Yakshagana Ballets.
46. What emerges from the above excerpts is that, Dr. Karanth did bring about the changes in all expects of Yakshagana by taking great pains in unearthing the lost ragas identifying the songs which needed proper pruning and tuning, effected changes even with regard to the type of instruments used, the scenic arrangements, costume as well and thus left a stamp of his own on Yakshagana Ballets.
47. Though Yakshagana prasangas form the basis for the performance of Yakshagana Ballet, the crucial question to be answered at this juncture is whether the changes brought about by Dr. Karanth both in relation to the musical and dramatic composition of the Seven prasangas can be brought under the expression 'literary work and books' in respect of which Dr. Karanth had bequeathed copyright in favour of the plaintiff. The answer to this question necessarily takes us to the definitions of the expressions 'literary work', 'dramatic work' and also to the relevant provisions of the Copyright Act, 1957.
48. Section 13 of the Copyright Act, 1957 ('the Act' in short) in the heart and soul of the Act. The said section reads thus:
13. Works in which copyright subsists - (1) the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,-
(a) original, literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) sound recordings.
(2) Copyright shall not subsist in any work specified in Sub-section (1), other than a work to which the provisions of Section 40 or Section 41 apply, unless,-
(i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India;
(ii) in the case of an unpublished work other than a work of architecture, the author is at the date of making of the work a citizen of India or domiciled in Indian; and
(iii) in the case of a work of architecture, the work is located in India.
Explanation.- In the of a work of joint authorship, the conditions conferring copyright specified in this sub-section shall be satisfied by all the authors of the work.
(3) Copyright shall not subsist-
(a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work;
(b) in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed.
(4) The copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the sound recording is made.
(5) In the case of a work of architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.
The expression 'literary work' has not been explained in much wider words as could be seen from Section 2(o) of the Act, wherein it has been defined as thus:
(o) 'literary work' includes computer programmes, tables and compilations including computer databases;
The expression 'dramatic work' has been explained in Section 2(h) of the Act to mean thus:
(h) 'dramatic work' includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not; include a cinematograph film;
49. Since the learned senior counsel for the appellant Sri Raghavan put more emphasis on the words 'original work' appearing in Section 13 and as he has contended that the seven prasangas, which form the basis for Yakshagana Ballet, are dramatic works and hence the question of claiming any originality in the seven prasangas by Dr. Karanth and muchless by the plaintiff does not arise, it is necessary to refer to the leading decisions wherein the expression 'original work' has come up for interpretation before the courts.
50. In the case of University of London Press Ltd. v. University Tutorial Press Ltd. reported in (1916)2 Ch.D., 601, the learned judge, Paterson, J., expressed the following views with regard to the term 'original':
The word 'original' does not in this connection mean that the work must be the expression of original or inventive thought Copyright Acts are not concerned with the originality of ideas, but with the expression of thought and in the case of 'literary work', with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work that it should originate from the author.
51. In the case of Macmillan & Co. Ltd. v. K.& J Cooper reported in 1923 Indian Appeals, L.R. Vol.LI, 109, the judicial committee approved of the above observations by holding that the question is not whether the material which are used are entirely new and had never been used before or even that they have been never been used before for the same purpose, but the true question is whether the same plan, arrangement and combination of materials have been used before for the same purpose or for any other purpose. If they have not, then the plaintiff is entitled to a copyright, although he may have gathered hints for his plan and arrangement or parts of his plan and arrangement from existing and known sources. He may have borrowed much of his materials from others, but if they are combined in a different manner from what was in use before..., he is entitled to a copyright.... It is true that he does not thereby acquire the right to appropriate to himself the materials which wore common to all persons before, so as to exclude those persons from a future use of such materials; but then they have no right to use such materials with his improvements superadded, whether they consist in plan, arrangement, or illustrations or combinations, for these are strictly his own.... In truth, in literature, in science and in art there are and can be few, if any, things which, in an abstract sense, are strictly new and original throughout.
52. In the very same decision, Macmillan & Co., v. K & J Cooper, dealing with the question of originality of a work, Lord Atkinson said: 'It will be observed that 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 this product it is necessary that the labour, skill and capital expanded 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. This distinction is well brought out in the judgment of that profound and accomplished lawyer and great and distinguished judge, Story J., in the case of Emerson v. Davies (1), decided in the United States. Some of the points decided are stated in the headnote to be first, that any new and original plan, arrangement or combination of material will entitle the author to copyright therein, whether the materials themselves be old or new. Second, that whosoever try his own skill, labour and judgment writes a new work may have a copyright therein, unless it be directly copied or evasively imitated from another's work. Third, that 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.'
53. Originality only in form but not in idea is the proposition of law that emerged from the decision of the Supreme Court in R.G. Anand v. Deluxe Films and Ors. : [1979]1SCR218 . That was a case where the plaintiff being a play writer and producer narrated the play 'HUM HINDUSTANI' to the defendant. Without informing the plaintiff, the defendant made a picture 'NEW DELHI', which the plaintiff alleged was based on his play. Two main issues which came up for consideration were:
1. Is the plaintiff-owner of the copyright in the play 'HUM HINDUSTANI'?
2. Whether the film 'NEW DELHI' an infringement of the plaintiff's play?
The Apex Court held Issue No. 1 in favour of the plaintiff and Issue No. 2 against. In the course of its judgment, their Lordships, after considering the case law of both the England and American and several authors of copyright, laid the following principles to determine whether there has been any violation of copyright, in para-44 of the said judgment, and the said principles are worth recalling at this juncture.
54. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:
1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendry facts and violation of the copyright in such cases is confined to the...manner and arrangement and expression of the idea by the author of the copyrighted work.
2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.
6. As a violation of copyright amount, to an act of piracy it must be proved b clear and cogent evidence after applying the various test laid down by the case law discussed above.
7. Where, however, the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a states play a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film gets a totality of impression that the film is by and large a copy of the original pla, violation of the copyright may be said to be proved.
55. The next decision which was referred to by the learned Counsel for the parties is reported in AIR 1971 Bombay 48 (in the case of N.T. Raghunathan and Anr. v. All India Reporter Ltd., Bombay.) The question that arose in this case was as to whether the copyright exists in head notes of original judgments published separately in the monthly parts of the plaintiff's publication called 'Notes of Unreported Cases' or 'N.U.C.' constitute the original literary work or not, and the Bombay High Court held thus:
Para-10: The first point argued on behalf of the appellant was that no copyright can be claimed in the matter of notes and head notes of the plaintiff. According to counsel the notes and head notes do not constitute any original work at all but are mere abridgments of the original judgments. The plaintiff has not filed any original judgment to prove that the notes prepared on the basis of that judgment constituted an original literary work. Now, upon the defendant's own showing, the notes or head notes of the plaintiff were abridgments of the original judgments. In law, there is no doubt that a copyright does not exist in a genuine and just abridgment for as has been observed in an English case an abridgment may with great propriety be called a new book and therefore is an original literary work.
Para-11: It is not the case of the defendant that the head-notes in plaintiff's Judgments of Courts. Therefore, they must necessarily have been prepared by the exercise of some human ingenuity and intellect and a reading of them indicates the same also. In Sweet v. Benning (1655) 139 ER 838, which was an almost identical case on facts Mr. Justice Crowder observed at page 851: The head-note or the side or marginal note of a report is a thing upon which much skill and exercise of thought is required to express in clear and concise language the principle of law to be deduced from the decision to which it is prefixed or the facts and circumstances which bring the case on hand within some principle or rule of law or of practice. The question, according to my notion is whether that in not something substantial in which the law gives the author or proprietor a copyright. It seems to be that although the object of the defendants was imply to put together after a manner of their own and for purpose quite different from that for which the plaintiffs published their work, these marginal notes, with others derived from other similar sources, nevertheless they do avail themselves, to an extent which the law does not warrant of the labour and skill and capital of the plaintiff's and have appropriated to their own use that which is substantially the property of the plaintiffs and a property of a description which the statute intended to secure to them. I have, therefore, though with great reluctance and difficulty, come to the conclusion that however useful and meritorious the defendant's work may be they were not justified, in making the use they did of the plaintiffs' work, but were guilty of piracy within the meaning of this Act of Parliament.
56. Even if the amount of originality is very small, still the law protects it, is the principle that emerges from the decision in the case V. Govindan v. F.M. Gopalakrishna Kone : [1955]27ITR164(Mad) . While commenting on Clause 1(a) of the Copyright Act, author Lal in his commentary on the 'Copyright Act' (III Edition) offers the following insight:
In V. Govindan v. F.M. Gopalakrishna Kone : [1955]27ITR164(Mad) where the contention was that no originality can be claimed in dictionaries compilations, guide books, maps etc., as they involve no brains, skill and labour, and the compilation by one man will be exactly the same as the compilation by any other man. The Court held: 'I cannot agree, many men have not got the brains, skill and labour to compile dictionaries, gazetteers, maps, almanacs, encyclopaedia and guide books. Nor all of such compilations of the same nature. Then it will be obvious that only one dictionary, gazetteer, grammar, map, almanacs, encyclopaedia or guide book will sell, and not the rest. Any man who refers to the Oxford Dictionary, Webster Dictionary and Chambers Dictionary can easily find out the difference between these dictionaries. There is considerable difference in dealing with the subject-matter. That will be specially so when the dictionary is not of all the words in the language, but of 'select words' considered suitable for high school boys, where the very same words in one dictionary being taken over to another and later dictionary will certainty prove piracy.
57. In Copinger and Skone James on 'Law of Copyright,' (8th Edn., at page 124) the law has been succinctly summarised as follows:
In the case of compilations such as dictionaries, gazetteers, grammars, maps, arithmetics, almanac, encyclopaedia and guide books, new publications dealing with similar subject-matter must of necessity resemble existing publications, and the defence of 'common source' is frequently made where the new publication is alleged to constitute an infringement of an earlier one.
It is clearly recognised that all these books are capable of having copyright in description, the amount of 'originality' will be very small, but 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.
58. Having in view the above propositions of law concerning what constitutes original literary work, I now deal with the contention of learned Senior Counsel Sri K.G. Raghavan, namely, that 'dramatic work' is different from 'literary work' and as Dr. Karanth bequeathed copyright only in respect of 'literary work' and 'Books' but not in respect of 'dramatic work', the plaintiff cannot claim copyright in 'Yakshagana Ballot Prasanga. Before I deal with this contention, it is proper to excerpt relevant portions of the 'Will' (Ex.P-1) executed by Dr. Karanth, bequeathing copyright in favour of the plaintiff.
Para 11: Since I left the house 'suhasa' I have been living in a specialty built house 'Manasa' of Smt. Malini Mallya, who has built it with borrowed money at her cost. She had joined my service as Copyist and later, she secured an employment in Life Insurance Corporation of India. Ever since 1974 till now in my old age she has been serving me with exemplary devotion and sincerity. And in this occasion I must also acknowledge with gratitude that she diligently cared and nursed my wife Leela Karanth during her prolonged illness till her last day. And she has cared and looked after me also during my illness which at times has been quite serious, enfeebling me for long period. In recognition of her devotion and sincere affection towards me in 1986 I have dedicated one of my novels namely, 'Antida Aparanji' to her. I have also placed on record her invaluable services to me in my Memoirs, 'Huchu Mansina Hathu Mukhagalu' 1991 Edition. In my opinion, very long enduring and a signal service she has done to me and to my literary works is, in writing a bibliography of all my books - a highly meritorious and scholarly work involving so much of painstaking research, that it has been acclaimed and rated as the first of its kind in Kannada and highly appreciated by Critics and Scholars. Apart from this, she has collected and edited all my stray writings from 1924 onwards upto date in eight sumptuous volumes which are being published by Mangalore University. This work also has brought her deserving fame and appreciation of Scholars. Such painstaking service in this direction has brought to light several of my hitherto untraced, forgotten and unknown writings and thereby giving them extended or renewed lease of life. For all these services, I hereby declare that after my death copyrights in respect of all my literary works shall vest with Smt. Malini Mallya and she alone shall be entitled to receive royalties of all my books and she shall be entitled to print, publish and republish and market the same. Whatever she may earn thereby shall be her exclusive income and property. No one else shall have any right or claims for the same.
59. Whether it can be said from the above contents of the 'Will' of Dr. Karanth, that the bequest did not cover the 'dramatic works' of Dr. Karanth
60. From the meaning given to the expression 'dramatic work' in Section 2(h) of the Copyright Act, 1957, it is clear that it includes any piece of recitation, choreography work, the scenic arrangement or acting form of which is fixed in writing or otherwise. Therefore, if the recitation part of the dramatic work is fixed in writing and so also the scene arrangements as well as the acting part, as the case in respect of the seven prasangas by Dr. Karanth, those works comes within the expression 'dramatic work'. Dramatic works are also treated as dramatic literature. The new Encyclopedia Britannica (Vol-IV) 15th edition, provides the following information about 'dramatic Literature':
'Dramatic Literature: the texts of plays that can he read, as distinct from being seen and heard in performance.
The relations between dramatic texts and the performances for which such writing was intended are neither simple nor regular. In the case of the Greek dramatists of the 5th century BC, the texts now available are a small selection made by later copying and preservation. There is no way of knowing how these relate, precisely, to the compositions made available for the original productions. The problem here as in may later periods is the relation between the words written to be spoken or sung by the performers and the many other elements of dramatic composition-in movement, in scene and costume, and occasionally in music that the performance would include. Some of these can be inferred from the particular styles of writing, but most have to be studied from other kinds of surviving accounts.
In later periods, and especially from the 19th century onward, it became habitual to include in the written text of a play, and especially in its independently published form, details not only of scene and stage movement but also of the appearance of the characters and of the states of mind intended to accompany or to punctuate the spoken words. Some of these later texts of plays resemble, in part, the printed modes of novels or short stories. There is no doubt that the printed texts of plays, in any these forms, can by read as literature. Many of them are now regarded as being among the great works of literature of the world: The Oreateia, King Lear, Peer Gynt.
Most drama is a form of writing for oral and actual performance, and it is in the period when imaginative writing has been taken to be coterminous with 'literature,' and especially with printed literature, that some of its elements have been most persistently misunderstood. The phrase dramatic literature has elements in common with the phrase oral literature, when the condition of silent reading of print has come to seem the normal or even universal condition of the reception and study of imaginative writing. The name for work within these conditions - 'literature' - was transferred to these other forms of writing intended primarily for oral communication. The need for understanding the conditions of oral performance is now more widely recognized. At the same time, given this recognition, the texts of the great plays are still read as dramatic literature, with a proper emphasis on the distinguishing features of the dramatic.
61. In respect of copyright in original 'dramatic work', the following observations found in Halsbury's Laws of England by Lord Hailsham. Fourth Edition are very relevant:
Only original works are protected under Part I of the Copyright Act 1956, but it is not requisite that the work should be the expression of original or inventive thought for Copyright. Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of a literary work, with the expression of thought in print or writing.... There is copyright in original dramatic works and adaptations thereof, and such copyright subsists not only in the actual words of the work but in the dramatic incidents created, so that if these are taken there may be an infringement: although no words are actually copied. There cannot be copyright in mere scenic effects or stage situations which are not reduced into some permanent form.
62. Thus, from a combined reading of the proposition of law laid down in the above mentioned cases and the authoritative works referred to above, which throw sufficient light on the topic under discussion, and also having regard to the meaning assigned to the terms 'literary work' and 'dramatic work' in the Copyright Act, 1957, the following inferences can be safely drawn without fear of any contradiction:
(i) There is no copyright in an idea, themes, plots and that it is in the originality in the form of expression that the protection lies. Even if the originality is very small, the law protects it, provided, the originality is the product resulting from the exercise of certain amount of labour skill and judgment, being brought into play. The expression 'literary work' refers to expression of thought in printing or writing. The Copyright Act does not require that the expression must be in an original or novel form, but it should originate from the author. A genuine abridgment of a literary work is an 'original work' entitled to protection. Dramatic Work or Dramatic Compositions like 'Yakshagana Ballet' have elements in common with literature. Printed texts of plays can be read as literature. Texts of great plays are read as dramatic literature.
(ii) In order to obtain copyright for literary, dramatic, musical and artistic works, the subject dealt with need not be original nor the idea expressed be something novel, but what is required is the expenditure of original skill or labour in execution and not originality of thought.
63. The above analysis therefore impels me to take the view that though Section 13(1)(a) of the Copyright Act classifies the works into four categories namely original literature, dramatic, musical and artistic in respect of which Copyright exists, that does not give room to take the view that a 'literary work' has nothing to do with a 'dramatic work' and vice-versa. Similarly, it cannot be said that musical work does not have an element of art in it. It is possible to produce a literary work with dramatic elements in it, as in the case of Charles Dicken's 'Pickwick Papers'. Dramatic works also could contain in its, passages of great literary taste, as in the case of great plays of William Shakespeare. Therefore, the main classification as literary work and dramatic work cannot be construed to mean that dramatic work has nothing to do with literary work. The only difference I see in them is that the dramatic work (plays) forms the text upon which the performance of the plays rests whereas a 'literary work' enables one to read the printed words. Neither of the two can be produced without the imaginative skill of the author.
64. In view of the forgoing analysis of Section 13(1)(a) of the Copyright Act, I have no hesitation in accepting the submissions of learned Counsel Sri. T.N. Raghupathy, that dramatic work is also a form of literature.
65. Having endeavoured to arrive at the above conclusion, it is time to look to the facts presented by the patties in this case. I have already referred to the documents produced by the appellants themselves wherein it has been stated that Yakshagana Prasanga of Dr. Karanth, is the creative extension of traditional form of Yakshagna Ballet and in bringing about the transformation in Yakshagana Ballet, Dr. Karanth made several changes in the traditional folklore.
66. The manner in which Dr. Karanth proceeded to spend several decades of his life in research, his experience, in studying the minute aspect of Yakshagana relating to life of musical instruments, cutting the duration of the songs by modifying and abridging the original songs, introducing several ragas into song which ragas hither to in oblivion, pushing the Bhagawathar to sing the songs from behind the screen, enabling the actors to silently perform on the stage and taking great care even in respect of the scenic facts, the costumes and the appearance of the actors on the stage and the manner of performances to a particular act, leads to the irresistible conclusion that Dr. Karanth left no stone unturned in reviving the art of Yakshagana Ballet. One cannot, but agree with the opinion expressed by Sri H.Y. Sharada Prasad that Dr. Karanth made a singular contribution to 'Yakshagana Ballet' and became an authority on the 'Yakshagana Ballet'.
67. Several changes brought by Dr. Karanth also pertains to the literary side of Yakshagana prasangas and as rightly pointed out by Sri T.N. Raghupathy, the plaint averments at Para-3, concerning the seven prasangas being composed by Dr. Karanth are not specifically traversed in the written statement of the appellants and the said fact is also evidenced from a look at Ex.P-60 - wherein we find each of the seven prasangas begins with caption which means that the text of the Yakshagana prasanga form the basis for the Yakshagana Ballet directed by Shivarama Karanth.
68. I am of the considered opinion that all the above changes brought about by Dr. Karanth in respect of Yakshagana Ballet leads to the inference that the imaginative faculties of Dr. Karanth permeated the entire Yakshagana prasangas and thus a new look was given to the Yakshagana Ballets. I, therefore, hold that the bequest of copyright in literary works and books in favour of the plaintiff by Dr. Karanth, will have to be treated as the bequest covering the dramatic works also since I have also drawn the conclusion that the dramatic works is also a form of literature. Therefore, necessity of mentioning copyright separately in respect of dramatic works does not arise. The plaintiff, therefore, to entitled to copyright even in respect of the dramatic works namely the seven prasangas, by virtue of bequest made in her flavour in respect of copyrights and books.
POINT NO. 2:
69. Another forcible submission made by the learned Senior Counsel K.G. Raghavan, concerns the nature of bequest made by Dr. Karanth in favour of the plaintiff. It is argued that a reading of para-12 of the 'Will'-Ex.F-1 leaves no one in doubt as to the residuary nature of bequest and therefore the plaintiff is not entitled to claim copyright in respect of dramatic works.
70. Learned senior counsel in this regard relies upon several decisions to submit that having regard to the contents of para-12 of the 'Will' and by virtue of application of the principle ejusdem generis, the bequest made in favour of the plaintiff will have to be confined to the objects of the same class or kind which precede the bequest in favour of the plaintiff.
71. I concede that the above rule referred to by learned senior counsel Sri K.G. Raghavan, has been an established rule of construction. Nodoubt, by reading para-12 of the 'Will' in isolation, one can certainly arrive at the conclusion that the bequest made in favour of the plaintiff is in the nature of residuary bequest. But, that is not all, in the 'Will'-Ex.P-1. I have already referred to para No. 11 of the 'Will' while dealing with the topic dramatic works vis-a-vis literary work and therefore if the 'Will' is read in its entirety and if we take into account, the benefits that flow from the bequest made by Dr. Karanth in favour of the plaintiff, it in not as if the plaintiff received the bequest only in respect of the things which form the residuary as mentioned in Para-12 of the 'Will', but the plaintiff also was given the copyrights in respect of literary works and all books as well as the right to print, republish and mark the literary works as well as the books.
72. Therefore, I am unable to subscribe myself to the view expressed by the learned senior counsel Sri K.G. Raghavan that the bequest made in favour of the plaintiff was only a residual bequest and that she is not entitled to copyright in respect of the literary works, books, of Dr. Karanth. There is however merit in the submission made by the learned senior counsel that the trial Court was in error in holding that the plaintiff has the exclusive copyright in respect of seven prasangas as a residuary legatee. To the said extent, the judgment of the trial Court will have to be modified.
73. The next limb of arguments of learned Senior Counsel is that if the copyright in the dramatic works of Dr. Karanth could be said to have been in existence, yet as Dr. Karanth was under employment of the appellants herein, it is the appellants who have the copyright of seven prasangas of the Yakshagana Ballet. In this connection, learned Senior counsel referred to the documentary evidence placed before the trial Court and also to the contention taken in the written statement by the appellants. This contention has been strongly refuted by the learned Counsel Sri T.N. Raghupathy by submitting it is rather unfortunate that a great literary personality like Dr. Karanth, has been reduced to the status of an employee under the appellants and having regard to the personality of Dr. Karanth as revealed in Dr. Karanth's Autobiography, it is submitted that it is inconceivable to think of Dr. Karanth being employee under the appellants.
74. As far as this submission is concerned, I have no hesitation to answer this point forthwith by stating that the appellants though have taken the said contention in their written statement, surprisingly the appellants have not bothered to place any evidence to substantiate their claim. Therefore pleadings without evidence cannot be looked into. Furthermore, having had the benefit of reading the Autobiography of Dr. Karanth once again, in connection with this case, one does not get the impression that Dr. Karanth was in need of employment, particularly during the last part of his career.
75. If I may say, the world is conscious of the poverty and penury with which great writers of the past led their life and we do find such situations existing even in the present days, in respect of several writers and authors. But, fortunately for Dr. Karanth, he was in a position to donate or to serve needy persons, as could be seen from his Autobiography. The properties bequeathed by Dr. Karanth among his children as well as to the plaintiff also bear testimony to this fact, as Dr. Karanth had the good fortune to leave behind him a substantial legacy, not only in the field of literature but even in the material world.
76. Apart from the above facts emerging from the evidence, it is also necessary to refer to the observations of one of the leading authors of Copy rights in regard to exception to the general rule that the author is the owner of copyright. One of the important exception is in the case of employment. At page 47 of Whale on Copyright. IV Edition, we find the following observations:
That exception applies only to literary, dramatic, musical or artistic works, and not to other types of copyright works. Those works must be made by the employee in the 'course of his employment'. Those words are repeated from Section 4 of the 1956 Act. This means that even the copyright in a work made by the employee in his spare time will belong to the employer if the work was made for the employer's benefit and if it falls within the scope of the employee's duties to make it.
As a matter of common law a person is an employee if he is engaged under a contract of service. The principal facts to be ascertained in deciding whether a person is or is not engaged under a contract of service, as distinguished from a contract for services, are the degree of control over the making of the work exercised by the employer and the extent of which the person doing the work is integrated into the business of the person for whom he does it. On the other hand, a 'contract for services' is one between a person and an independent contractor who undertakes to perform specified services for that person. Whether a particular arrangement is a contract of service or contract for services is often a complex question.
Clearly, articles written by a journalist on a newspaper on a subject prescribed by the editor are works made under a contract of service. A contract for services would be that of an independent author commissioned to write a review of a book, the author being left the free exercise of his talents as he thinks fit. A borderline case would be that of a researcher working on a series of one-year contracts for a television company, where the researcher is regarded as self-employed for tax purposes, but receives some benefits of employment form the television company, such as a pension or a staff car. In those cases criteria other than those concerning an author's intellectual creation determine whether or not he is an employee or an independent contractor.
It is always open to the contracting parties to agree between themselves as to how they wish to allocate copyright.
77. Having thus considered the material on record and also the proposition of law touching on the point, I am un-impressed by the contentions put forward by learned Senior Counsel Sri. K.G. Raghavan that Dr. Karanth was on the employment and therefore the copyright if existing in respect of the dramatic works lies with the appellants.
78. The next ground urged by learned Senior Counsel for the appellants, concerns infringement of copyrights of the plaintiff in respect of seven prasangas and particularly the prasanga entitled 'Abimanyu Vadha'. The cause of action as already stated earlier arose according to the plaintiff with the publication of news item in 'Vijaya Karnataka' newspaper to the effect that 'Abimanyu Vadha' was staged at Delhi and it is this incident that triggered, the present suit is being filed. As far as the infringement of copyright is concerned, there is no evidence placed by the plaintiff to show as to the performance that was staged at Delhi and as to whether the audience who were present were of the view that the 'Abimanyu Vadha' which was staged, reminded the viewers that what was witnessed was, the carbon copy or the substantial copy of the work of Dr. Karanth. Therefore having regard to the principles laid down by the Apex Court to R.G. Anand' case, unless material is placed to show the similarities between the Yakshagana Ballet that was performed at Delhi and Yakshagana Ballets composed by Dr. Karanth under his direction, it is not possible to say that the plaintiff had established the foot of infringement of copyright by the appellants, when there is no cogent material placed in by the plaintiff in this regard.
79. I am, therefore, in agreement with the submissions made by the learned Senior counsel Sri. K.G. Raghavan that the plaintiff has failed to prove infringement of copyright in respect of one of the seven prasangas viz., Abimanyu Vadha. The trial Court has rightly declined to award any damages to the plaintiff, which finding of the Trial Court does not call for any interference.
One other aspect to which I have to make reference before concluding this judgment is with regard to the application filed by the appellants for producing additional documents. It is the submission of learned Senior Counsel Sri K.G. Raghavan that the payments that were made in respect of Yakshagana Prasanga staged at various places were a clear indication of copyright having been existence in respect of said prasangas. Since, I have taken a view that the copyright bequeathed in favour of the plaintiff in respect of literature works and books also encompasses the dramatic works or more particularly seven prasangas which are the text for the Yakshagana Ballets, it is of no significance to consider the documents sought and produced by the appellants. As rightly submitted by learned Senior Counsel Sri. T.N. Raghavan, merely because Dr. Karanth did not exercise his copyright in respect of Yakshagana prasangas, it does not lead to the inference that such as right did not exist in Dr. Karanth. Hence consideration of the application for production of additional documents therefore does not arise.
80. The result of foregoing analysis and discussion is that the plaintiff is entitled to copyright even in respect of the seven prasangas which are the text for performance of Yakshagana Ballets and if the appellants desire to stage any of the seven yakshagana ballet prasangas as directed by Dr. Karanth in the manner and in the form as conceived by Dr. Karanth, the Appellants can do so only in accordance with the provisions of The Copyrights Act, 1957.
81. In the result, I pass the following judgment:
i. Appeal is dismissed.
ii. The judgment of the trial Court insofar as declaring the plaintiff as the person having exclusive copyright in respect of seven prasangas is sustained with the modification that the said copyright vests with the plaintiff by virtue of the bequest made by Dr. Karanth in respect of literature works and books, but not as residuary legatee.
iii. As far as the restraint order passed by the Trial Court by granting permanent injunction to the plaintiff is concerned, the same is modified by ordering that if the appellants desire to stage any of the seven yakshagana prasangas in the manner and form as conceived in all respects viz., costumes, choreography and direction by Dr. Karanth, the appellants can do so only in accordance with the provisions of The Copyrights Act, 1957, in view of copyright in seven prasangas vesting with the plaintiff.
iv. In all other respects, the judgment of the trial court is sustained.