K. Ramamoorthy, J.
(1) The Applicant M/s. Ratna Sagar Private Limited has filed the suit claiming the following reliefs :
'(i) For an order for perpetual injunction restraining the defendants, their agents, assigns, employees, successors, servants, etc. from publishing, printing, selling, offering for sale, and/or otherwise dealing with or disposing, or causing or permitting to be published, printed, sold, delivered or otherwise disposing of any copies or copy of the book titled ' Unique SCIENCE' Volumes-111, Iv and V, published by defendant No. I and edited by Defendants 2 and 3 or publishing and/ or offering for sale any other book which is an infringement of the copyright of the plaintiff in its books titled 'LIVING SCIENCE' Volumes-111, Iv and V. (ii) For an order for permanent injunction directing the defendants to withdraw all copies of the work/books titled 'UNIQUE SCIENCE' Volumes Iii, Iv and V and destroy the same Along with all stocks, proofs, negatives, publicity materials, plates and blocks thereof before this Hon'ble Court. (iii) For an order for rendition of accounts of all sales affected in respect of the infringing books 'UNIQUE SCIENCE' Volumes Iii, Iv and V and pay the entire consideration received/receivable to the plaintiff Along with interests @ 18% (iv) For costs in the proceedings. (v) For such further relief/ reliefs to which the plaintiff may be entitled looking into the facts and circumstances of the case.'
(2) The plaintiff has filed I.A. No. 1072/94 under Order 39 Rules I and 2 read with Section 151, Civil Procedure Code for the following reliefs :
'It is, thereforee, prayed that the defendants, their servants, stockists, distributors, agents, retailers, etc. be restrained by an interim injunction from printing, publishing, selling, and/or offering for sale, advertising, directly or indirectly dealing in the infringing literary works titled 'UNIQUE SCIENCE' Volumes Iii, Iv and V which works are an infringement of the registered copyright of the plaintiff and the defendants be further restrained from printing, publishing, selling and/or offering for sale any other infringing work similar to the abovementioned literary works of the plaintiff. It is further prayed that an exparte ad-interim injunction be granted in view of the present facts and circumstances of the case. Such further relief/relief which the plaintiff may be entitled looking into the facts and circumstances of the case may also be granted.'
(3) The case of the plaintiff briefly stated is this: The plaintiff commenced its business of publication in the year 1982 and it is one of the leading publishers in the country and its business mainly is publication of educational books including those for the young children and only for the purpose of education. One of the plaintiff's series of educational publications is 'LIVING SCIENCE'. Volumes 3 and 4 of 'LIVING SCIENCE' were published in 1986 and Volume 5 was published for the first time in the year 1988. This subject presented by the plaintiff is to enable the teachers to teach the children about the basic features of nature relating to plants and animals. In para 6 of the plaint the plaintiffs puts its case thus :
'THAT apart from the common law rights which vest in the plaintiff by virtue of prior publication, the plaintiff is also the assignee of the Literary works titled 'LIVING SCIENCE' Volumes I to V having purchased for valuable consideration vide a written document the copyright in the said work from its author(s). Apart from the above assignment the plaintiff is also the registered owner of the copyright in respect of its abovementioned literary works registered under Nos. L-13519/93, L-13390/92, L-13392/92, L-13393/92 respectively with the office of the Registrar of Copyright, New Delhi. Copies of the Registration Certificates in respect of Volumes Iii, Iv & V of 'LIVING SCIENCE' published by the plaintiff are annexed to the plaint as Annexures A, B and C respectively.'
(4) The plaintiff claim to be the owner of the copyright in these series of books and the literary works contained in Volumes 1 to 5 published by the plaintiffs under the caption 'LIVING SCIENCE' and according to the plain tiff cannot be used by any third parties.
(5) The first defendant is the publisher of series of books under the caption ' UNIQUE: SCIENCE', Volume Iii, Iv, and V, and defendants 2 and 3 are the Editors of the said works.
(6) According to the plaintiff, the Volume published by the first defendant as 'UNIQUE SCIENCE' are exactly identical to the publications made by the plaintiffs. According to the plaintiff they are zerox copies, as it were, of the plaintiff's books.
(7) The plaintiff came to know about the activities of the defendants in or around the month of March 1994. Immediately on coming to know of it, on the 24th of March, 1994 the plaintiffs issued notice to defendants 2 and 3 which are the Annexures D & E to the plaint, requesting them to withdraw the infringing copies from the market. It is the case of the plaintiffs that defendants 2 and 3 stopped publishing the work. In the third week of September, 1994 the plaintiff was surprised to see that the revised edition of infringing works had again surfaced in the market. thereforee, on 19th of September, 1994 the plaintiffs issued notice through its Counsel to the defendants stating that the books bearing the title 'UNIQUE SCIENCE' published by the defendants was infringement of literary work of the plaintiff. The first defendant sent his reply through his Lawyer on the 7th October of 1994 refuting the case of the plaintiff. Hence this suit.
(8) ANNEXURE-A filed along with the plaint is an Extract from the Register of Copyrights. It is stated in Annexure -A in Seriall No. 5 'Title of the work; Living Science BOOK-3'. Annexure-B is again an extract from the Register of Copyrights Government of India, in which similar Seriall No. 5 'Title of the work Living Science Book 4', showing the registration Annexure-C is again an extract from the Register of Copyrights, Government of India, in Seriall No. 5 'Title -of the work- Living Science BOOK-5', showing the registration.
(9) The defendants 1 to 3 have filed a joint written statement contending, inter alia, that the work of the plaintiff and of the defendants were derived from common sources and the works are different in and they are dissimilar, and thereforee, there is no question of any infringement of Copyright. The plaintiff had acquiesced in the publication made by the defendants and thereforee, the plaintiff cannot seek any relief. The defendants generally denied the claim of the plaintiff about the publication in 1986 and 1988. The defendants denied also the registration of the work of the plaintiff under the Copyrights Act. It is stated in para 6 of the written statement in the following terms:
'WHAT is protected under the Copyright Act is not the original thought or information or expression of thought in a concrete form. The alleged literally work of the plaintiffs contained in the alleged mentioned and impugned series entitled Living Science totally lacks in contents, spirit and climax in newness and originality. One is entitled to develop the idea derived from the common source. The work of the defendant, though derived from the common source, is not in any way similar to the alleged work of the plaintiff on fundamental and substantial aspects of the mode of expression, where the same idea being taken from common source is developed in a different manner, similarities are bound to occur. Despite being the development of the same idea by the defendants is not similar on fundamental and substantial aspects of the mode of expression. Defendants presented and treated the same subject differently and that the work of the defendants has become a completely new, novel and protective work. There are material and broad dissimilarities between the literary work of the defendants and those of plaintiffs.'
Again in para 10 of the written statement it is stated :
'In order to constitute infringement of copyright in any literary work, it is well established that there must be present two elements. First there must be sufficient objective similarity between the infringing work and the copyright work or a substantial part thereof. Secondly, the copyright work must be the source from which the infringing work is derived. The work of the plaintiff and that of the defendants is from a common source but the defendants has given it a new embodiment in a tangible form not in any way substantially or otherwise similar to that of the plaintiff in any manner whatsoever. Defendants are not guilty of infringement of copyright.'
According to the defendants the plaintiffs issued notices only to cover up the delay acquiescence and estoppel, by the defendants.
(10) The learned Counsel for the plaintiff Mr. Ajay Sahni brought to my notice the claims in the plaint and also the claims in the written statement. He referred to Section 2(0) of the Copyrights Act, 1957. He made a close comparative study of Volume Iv and Living Science and Volume Iv of Human Science and the other Volumes of the plaintiffs and the defendants. He relied upon the judgment of this Court in Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber & Anr.' in 1995 Ptc (15) 1995,279 at page 283 in para 11.3 which reads as follows:
'11.3 Govindan v. Gopalakrishna, : AIR1955Mad391 was a case of compilation. It was held that though in the case of 'compilation' the amount of originality will be very small but even that small amount is protected by law and no man is entitled to steal or appropriate for himself the result of another's brain, skill or labour even in such works. On the defense plea of common source it was held : 'A person relying on it must show that he went to the common source from which he borrowed, employing his skill, labour and brains and that he did not merely do the work of the copyist, by copying away from another work'.
He also referred to the decision of the Allahabad High Court in Shyam Lal Paharia $ Am. v. Gaya Prasad Gupta 'Rasal', : AIR1971All192 .
(11) Per contra Mr. K.G. Bansal learned Counsel for the defendants contended that the plaintiff has not proved its rights in the Copyrights. The work was done by somebody. The plaintiff claims only an assignment and the assignment has not been proved by the plaintiff. The matter dealt with by the books of the plaintiff and the defendants are known to the people as they are very from the common source which is nature and thereforee, the plaintiff cannot claims any copyright and as a matter of fact, no infringement of the rights of the plaintiff by the defendants. He brought to my notice the judgment of this Court reported in Michael Heath Nathan Johnson v. Subhash Chandra & Ors. 1995 (15) Ptc 300. He referred to para 96 wherein the proposition of law laid down by the Supreme Court in R.C. Anand v. M/s. Delux Films and Ors. : [1979]1SCR218 are extracted by me. Mr. Bansal learned Counsel for the defendants referred to Section 19 of the Copyright Act, 1957. That Section reads as under:
'19.Mode of assignment-(1) No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent. (2) The assignment of copyright in any work shall identify such work and shall specify the rights assigned and the duration and territorial extent of such assignment. (3) The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties. (4) Where the assignee does not excise the rights assigned to him under any of the other sub-sections of this section within period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment. (5) If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment. (6) If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India. (7) Nothing in Sub-section (2) or Sub-section (3) or Sub-section (4) or Sub section (5) or Sub-section (6) shall be applicable to assignments made before the coming into force of the Copyright (Amendments) Act, 1994. 19-A. Disputes with respect to assignment of copyright-(1) If an assignee fails to make sufficient exercise of the rights assigned to him, and such failure is not attributable to any act or omission of the assignor, then, the copyright Board may, on receipt of a complaint from the assigner and after holding such inquiry as it may deem necessary, revoke such assignment. (2) If any dispute arises with respect to the assignment of any copyright, the Copyright Board may, on receipt of a complaint from the aggrieved party and after holding such inquiry as it considers necessary, pass such order as it may deem fit including an order for the recovery of any royalty payable : Provided that the Copyright Board shall not pass any order under this subsection to revoke the assignment unless it is satisfied that the terms of assignment are harsh to the assigner in case the assigner is also the author. Provided further that no order of revocation of assignment under this subsection, shall be made within a period of five years from the date of such assignment. He referred to the decision of the Karnataka High Court in K.A Venugopala Setty v. Dr. Suryakantha U. Kamath, : AIR1992Kant1 . He also referred to the decision of the Bombay High Court in M/s. Eagle Potteries Private Ltd. v. Mis. Eagle Flask Industries Pvt. Ltd. : AIR1993Bom185 . He placed reliance on para 30 of the judgment. Learned Counsel also referred to the decision of the Calcutta High Court reported in Govt. of West Bengal v. Nitya Gopal Basak and Ors., 1985 A L R137. I do not find anything helpful to the defendants in those cases. The Karnataka High Court, Bombay High Court and the Calcutta High Court dealt with different situations altogether and those cases do not resemble the facts of the case.
(12) Learned Counsel Mr. Bansal referred to the decision of the Privy Council in Lords Atkin, Tomlin and Thankerton Florence A. Deeks v. H.G. Wells and Others Air 1933 P C 26. The facts briefly stated are these : One Miss Florence Deeks, sued Mr. H.G. Wells for breach of copyright but the action really was for breach of confidence in permitting the plaintiff's unpublished manuscript to be used without the plaintiff's consent. It was her case that Mr. H.G. Wells used the manuscript of the plaintiff improperly as the foundation of his book. The Outline of History. Upon those questions whether the book was used or not, the Courts below come to the conclusion against the plaintiff. It maybe noticed that the matter came before the Privy Council after a full fledged trial. The Privy Council noted that on evidence the Courts below were right in holding that the plaintiff's case was quite unfounded and the manuscript of the plaintiff was not handed over to Mr. H.G. Wells and Mr. Wells never used it. While referring to the ultimate decision of two literary works the Privy Council posited :
'Now their Lordships are not prepared to say that in the case of two literary works intrinsic evidence of that kind may not be sufficient to establish a case of copying, even if the direct evidence is all the other way and appears to be evidence that can be accepted; but such evidence must be of the most cogent force before it can be accepted as against the oath of respectable and responsible people whose evidence otherwise would be believed by the Court'.
About the evidence by the expertise the Privy Council observed :
'Now the points upon which the experts rely have been correctly summarised by Miss Deeks in this respect. She says that the copying took place as is shown by similarities with regard to the plan - that means the plan of the books, the scheme of the book; that the opening chapters and various passages appearing in Mr. Well's book are mere colourable alterations of 'The Web;' that there are certain phrasal identities and similarities, and there are certain mistakes; that the similarities, though trifling in some instances, are so numerous that an accumulation of them afford the strongest evidence of copying; and that there were common sources used for both works which could be shown to have been used in both cases together with the original additions made by Miss Deeks, so that when you compared the two, you found that Mr .Wells had used not only the common source, but had also modified it by using in addition to that the original manuscript of Miss Deeks. She relied on the choice and the sequence of the order of details, and she relied on the emphasis and proportion given to certain topics, those matters were carefully discussed in the Courts below: they have been dealt with by the judgments in both Courts, and they have been very fully discussed before their Lordships by Miss Deeks who in the course of her case has given every assistance to the Board and made it quite plain that the whole strength of the case has been put forward upon this appeal. Their Lordships wish to repeat what was said in the Courts below that Miss Deeks has argued the case with great can dour and with great force.'
thereforee, the Privy Council was not considering the case similar to one those before me. Here we are concerned with the picture and the nature of Explanationn given by the Author.
(13) Mr. Bansal referred to the decision of the Lahore High Court in Kartar Singh Giani v. Ladha Singh and Ors., Air 1934 Lah 777. Here also a few facts have to be noticed. The first defendant Kartar Singh Giani was a Granthi of the Darbar Sahib at Amritsar. He had written a life sketch of Sri Guru Govind Singh Ji in Punjabee poetry and had given it the name of Dashmesh Parkash. On 6th July, 1915 which is called a deed of transfer, the first defendant conveyed to the plaintiff his copyright in the book for Rs. 500.00 . The first defendant undertook that in future he and his heirs shall have no right to get the above mentioned book printed in any language or to alter its subject matter or to change its name. In 1917 the first defendant began to write a series of books containing the lives of this various Sikh Gums calling it Akali Jot. Dashmesh Parkash is one of the series published by the first defendant. It appears in 1930 the publisher of the first defendant was having this matter Dashmesh Parkash through a third party publisher had infringed the plaintiff copyright.
(14) The first defendant admitting the document called a deed of transfer contended that he did not agree that he would never in future publish any life sketch of Sri Guru Govind Singh Ji. What he was seeking to publish through the third party publisher was entirely different from Dashmesh Parkash, in volume size, material, language and form of verse. The trial Judge decreed the suit. The first defendant filed an appeal. The High Court observed that after studying the two works of the first defendant 'there cannot be any manner of doubt that the later work represents a mature art and a greater wealth of details in depicting the various incidents. The imagery of the later work is of a superior type when compared with Dashmesh Parkash. There are fresh incidents and details which are the result of researches made by the author into works which had existed before as well as those which came into existence after Ex. P-1 had been written and published'. Referring to the view taken by the Courts below the Court observed :
'IT was alleged that the defendant had copied that list and had thereby infringed the plaintiff's copyright. The Court however, held that all human events were equally open to all who wished to add to or improve the materials, already collected by others, thus making an original work, and no man could monopolise such a subject. The judgment goes on to say that every man can take what is useful from the original work, improve, add and give to the public the whole, comprising the original work, with the additions and improvements; and in such a case there is no invasion of any right. But a copy much less a servile copy, of a work cannot be allowed. In the present case defendant No. I had used certain historical works while writing Ex. P-1. He carried on his researches afterwards and found out some of his mistakes and tapped other sources of knowledge and eventually embodied the result of his labour, skill and judgment in Ex. D-1. There are undoubtedly common incidents, but they are clothed in a different poetical garb and it cannot be said that the one is a copy, much less a servile copy of the other. I have studied the case reported as (1905) 1 Ch. 519 . The learned Judge in that case had adopted the definition of a 'copy from an earlier decision which runs as follows: A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original. He has quoted the following passage from the House of Lords case: (1895) A C. 20: The question may be solved by taking each of the works to the compared as a whole and determining whether there is not merely a similarity or resemblance in some leading feature or in certain of the details, but whether keeping in view the idea and general effect created by the original, there is such a degree of similarity as would lead one to say that the alleged infringement is a copy or reproduction of the original. in my opinion after carefully following the lengthy quotations read out and translated in Court by the parties from the two works it cannot be said that Ex. D-1 is a 'copy of Ex. P-1. As I have already said certain historical or legendary incidents to be found in the earlier work are sure to be portrayed in the later work but they are far from being copies from the original work, and the introduction of a number of entirely new incidents, of course, further strengthens the defendant's case that the two works are substantially different from 'each other. The test laid down in 18 W R 279(4); lends support to the defendant's contention. The dispute was in respect of certain scientific books. The plaintiffs alleged that the defendant's books had been copies from their books, while the defendant pleaded that his books were the result of his individual labour and skill. The principle enunciated by the learned Judge was as follows: If any part of a work complained of is a transcript of another work of with colourable additions and variations and prepared without any real independent literary labour such portion of the work is piratical. But it is impossible to establish a charge of piracy when i t is necessary to track mere passages and lines through hundreds of pages or when the authors of a work challenged as piratical have honestly applied their labour to various sources of information. This is precisely the case before us. A few lines here and there in Ex. D-1, might be reminiscent of similar lines in Ex. P-1, but, as already observed, the sources made use of by the author being in some cases common, such a result was inevitable. Students of Shakespeare are a ware that in his Roman plays there are passages which seem to have been bodily taken from North's Translation of Plutarch lives. The same may be the case with certain passages in Dashmesh Parkash, Ex. P-1, and Dashmesh Partap, Ex-D-1, which bear resemblance to each other on account of their common origin. All laws which put a restraint upon human activity and enterprise must be construed in a reasonable and generous spirit. Under the guise of the copyright, a plaintiff cannot ask the Court to close all the avenues of research and scholarship and all frontiers of human knowledge. In my opinion, interpreting the law in a just and liberal spirit, Dashmesh Partap, Ex. D-1, is quite a distinct work from Dashmesh Parkash, Ex. P-1 and the plaintiff cannot obtain the injunction prayed for. But, as frankly admitted by defendant I Dashmesh Parkash and Dashmesh Partap practically mean the same thing and as there is a considerable phonetic similarity between the two titles, in my judgment the word Dashmesh Partap, Ex. D-1, might mislead the public and easily pass off as Dashmesh Parkash Ex. P-1. This naturally reduce the sale of the plaintiff's book in the book market. Defendant No. I, very properly admitted that he was prepared to change the name of the book Ex. D-1 so that the plaintiff may not suffer any loss by the purchasers buying Ex. D-1,mistakingitforEx. P-1. would accordingly accept the appeal in the main and, setting aside the decree of the Additional District Judge, Lahore, grant an injunction to the plaintiff merely restraining defendant I from using the name Dashmesh Partap for Ex. D-1.'
(15) Mr. Ajay Sahni in reply to the arguments of Mr. Bansal brought to my notice Section 48 of the Copyright Act,1957. Section 48 reads as follows :
'REGISTER of Copyrights to be prima facie evidence of particulars entered therein. The Register of Copyrights shall be prima faice evidence of the particulars entered therein and documents purporting to be copies of any entries therein, or extracts there from certified by the Registrar of Copyrights and sealed with the seal of the Copyright Office shall be admissible in evidence in all Courts without further proof or production of the original.'
(16) Learned Counsel submitted that the entire book itself is registered under the Copyright Act and that will include the artist work as otherwise there is no purpose is getting the entire book registered.
(17) Learned Counsel Mr. S.K. Bansal relied upon the decision of this Court in Camlin Private Ltd. v. M/s. National Pencil Industries, : AIR1986Delhi444 , and he summed up his submission in the following manners : (1) The plaintiff in para 6 relied upon the work prior to publishing; (2) The plaintiff claims rights by assignment; and (3) By virtue of registration the plaintiffs cannot claim any rights involved in the original work. He does not dispute the prior publication but would submit that assignment must be in writing and no document to show the assignment of the original work from the author has been filed by the plaintiff. He also contended that the affidavit from the author has been filed. According to him regarding the first work from Laxmi Menon, 171, Double Storey, New Rajinder Nagar, is the author and there is no affidavit. Regarding the second work Volume Iv, no affidavit from the author is filed. Regarding third work Volume V there is no affidavit from the author. He vehemently urged that all the materials used by the plaintiff and the defendants are derived from the common source and the plaintiff cannot be heard to be contended that the defendants had infringed the rights of the plaintiff. Nowhere in the plaint it is stated that the defendants have copied the artist work of the plaintiff. As I had already noticed the book is registered and that will include the artist work and that were the arguments of the learned Counsel for the plaintiff.
(18) I had considered the materials produced by the parties and also the arguments of the learned Counsel for the parties on the basis of the good research. I had seen the books of the plaintiff and also the books of the defendants and on a close examination of the books one cannot resist impression that the defendants had copied the work of the plaintiff. No doubt the ideas for books both of the plaintiff and the defendants would come from nature but what we are concerned here is, how the things existing in nature were presented by the plaintiff and the defendants. The idea of the configuration of the ideas into the picture and words would form the fulcrum of the work done by any person. thereforee, when it is admitted that the plaintiff had published the work earlier its right must be protected. The argument of Mr. Bansal that the plaintiff has not proved the assignment is not a matter before this Court at this stage and the person aggrieved in the absence of assignment may be the original author, but the defendants cannot be heard to be contended that the plaintiffs have not proved the assignment and, thereforee, the defendants are free to infringe the copyright of the plaintiff. Their case on the other hand, in the absence of the assignment as contended by the learned Counsel Mr. Bansal should be that the original authors had concluded to the act of the defendants and, thereforee, the plaintiff cannot seek to espouse the cause of the author. The plaintiff claims absolute right in the copyright, by virtue of the assignment and also as registered owner after the assignment. thereforee, on the facts and in the circumstances of the case, I have no hesitation in coming to the conclusion that the defendants are guilty of infringing the copyright of the plaintiff in the books and the plaintiff has made out a prima facie strong case for granting injunction. The balance of convenience is also in favor of the plaintiff.
(19) Accordingly, there shall be an injunction restraining the defendants, their servants, stockists, distributors, agents, and retailers from printing, publishing, selling, and/or offering for sale, advertising, directly or indirectly dealing in the infringing literary works titled 'UNIQUE SCIENCE' Volumes Iii, Iv and V which works are an infringement of the registered copyright of the plaintiff the defendants are further restrained from printing, publishing, selling and/or offering for sale any other infringing work similar to the above mentioned literary works of the plaintiff till the disposal of the suit. Post the matter for further proceeding on 26th of September 1996. Injunction granted.