Copyright; M. Radhakrishnan Vs. Surabhi Publications [Kerala High Court, 04-07-2016]

Copyright Act, 1957 – Section 55 – Expert Opinion – to point out to the court the similarities and differences between the design and the alleged infringement – the court below ought to have afforded the plaintiff an opportunity to apply for the appointment of an expert to compare the two works and to submit a report to the court pointing out the similarities and differences in the two works. The decision of the court below dismissing the suit filed by the appellant cannot therefore be sustained.

# Copyright


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.N.RAVINDRAN, J.

R.F.A.No.77 of 2010

Dated this the 4th day of July, 2016

OS.1/2006 of ADDL.DISTRICT COURT-I,MAVELIKKARA

APPELLANT/PLAINTIFF

M. RADHAKRISHNAN

BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.GEORGE RAJU SMT.SURYA SASI

RESPONDENT(S)/DEFENDANTS 1 TO 6

M/S. SURABHI PUBLICATIONS AND OTHER

R,R1-3 BY ADV. SRI.N.P.SETHU AMICUS CURIAE BY ADV. SRI.R.HARIKRISHNAN AMICUS CURIAE BY ADV. SRI.BENOY K.KADAVAN

JUDGMENT

The appellant is the plaintiff in O.S.No.1 of 2006 on the file of the Court of the Additional District Judge of Mavelikkara. The respondents are the defendants therein. The suit instituted by the appellant under section 55 of the Copyright Act, 1957, for a permanent prohibitory injunction restraining defendants 1 to 5 from selling, marketing or reprinting the book Sreenarayana Guru Deva Bhagavatham with the portions and lines shown in the plaint schedule, which it is alleged, were copied and pirated from the literary work of the plaintiff by name “Sree Narayana Guru Bhagavatham”; for a mandatory injunction directing defendants 1 to 5 to include a courtesy to the plaintiff in the foreword of the book printed and kept by them for sale and to publish a public notice in the major Malayalam dailies expressing their obligation to the plaintiff in relation to the lines and portions shown in the plaint schedule and allowing the plaintiff to realise the sum of Rs.50,000/- jointly and severally from the assets of defendants 1 to 5 as special and general damages, was dismissed by the trial court by decree and judgment delivered on 30.3.2009. The plaintiff has, aggrieved thereby, filed this appeal. The brief facts of the case as set out in the plaint are as follows:

2. The appellant is the author of the literary work Sree Narayana Guru Bhagavatham (Ext.A1) published by M/s.Sky Book Publishers, of which the 6 th respondent is the proprietor. The appellant contended in the plaint that the said literary work is a devotional poem, which recites his spiritual journey through the divine history, life and preachings of Sreenarayana Guru. The appellant contended that defendants 2 and 3, who are the Managing Editor and Managing Director respectively of the first defendant publishing company, personally approached him at his residence on 29.9.2005 and requested him to sell the copyright over Ext.A1 literary work to the first defendant publishing company, that they offered to pay the sum of Rs.1,00,000/- as consideration and reward for such sale and for including the work of the plaintiff as one of the parts in a book which contains a collection of Gurudeva literature of various authors, but he declined the demand by the defendants since he wanted to keep the identity of his literary work as a separate book. It is stated that even thereafter the defendants telephonically contacted and repeated their offer, but he refused to comply with their request, that on 3.10.2005 defendants 2 and 3 approached him at his residence and repeated the offer, that he again conveyed his unwillingness to sell the right of his book and that the defendants collected one copy of his literary work from him paying Rs.100/-, the subsidized rate at which the book was being sold. It is also stated that subsequently from advertisements in the media the plaintiff came to know that the defendants have published Sreenarayana Guru Deva Bhagavatham (Ext.A2) just before Sivagiri Theerthadanam of December, 2005 and January, 2006 and that the said book, published by the first defendant contains a considerable number of lines adapted and copied from his literary work. The plaintiff contended that nearly 93 lines have been copied and 217 lines have been copied after making minor alterations, thereby infringing his copyright in the literary work Sree Narayana Guru Bhagavatham. The plaintiff contended that by copying portions of his book, defendants 1 to 5 have committed an act of piracy and infringed his copyright in Ext.A1 literary work. The plaint proceeds to state that on coming to know of the act of piracy committed by defendants 1 to 5, the plaintiff caused Ext.A3 notice dated 7.2.2006 to be issued, calling upon defendants 1 to 5 to desist from their illegal activities and to surrender the book already printed and published by them, that the first defendant accepted the notice and the notices issued to the other defendants were returned unclaimed, but later, on the instructions of defendants 1 to 5, a notice dated 20.3.2006 was issued denying the act of piracy and infringement of copyright. The relevant averments in that regard contained in paragraphs 6 to 19 of the plaint are extracted below:-

“6. The plaintiff obtained one copy of the said book published by 1 st defendant and found that a considerable number of lines of the said book were adapted and copied from his literary work. Numerous lines have been found copied in their book ie, nearly 93 lines verbatim and 217 lines, where a word or a phrase has been changed or position of words altered. It can be found that the said book published by the 1 st defendant is an infringing copy of plaintiff’s Sree Narayana Guru Bhagavatham.

7. The defendants 1 to 3 published their book by adapting copying, distorting, mutilating and modifying or re-arranging the lines from page Nos.56 to 31, 73, 94 to 97, 110, 113, 128 to 143, 284 to 287 of plaintiff’s book and the defendants published reproducing the said lines in their book’s page Nos.31 to 35, 43, 51, 52, 66, 72 to 80 and 110 and 112.

8. The plaintiff ultimately and reliably found that a good portion of the ‘Sree Narayana Gurudeva Bhagavatham’ written in the name of 4 th & 5 th defendants and published by the 1 st to 3 rd defendants is absolutely an anonymous and pseudonymous reproduction of plaintiff’s ‘Sree Narayana Guru Bhagavatham’. Thus the defendants 1 to 5 have infringed the copyright of plaintiff’s literary work by re-arranging altering and copying lines from the plaintiff’s literary work ‘Sree Narayana Gurudeva Bhagavatham’ published by 1 st defendant to 3 rd defendant in the name of 4 th & 5 th defendants is only one part of a collection of literary works of various other famous authors.

9. The above mentioned pages and lines in the literary work of plaintiff have been absolutely copied by the defendants 1 to 5 in their book. The corresponding pages of the two books are submitted in schedule for comparison and analysation by this Hon’ble Court.

10. The piracy by copying the lines and stanzas of the plaintiff’s book is a naked infringement of copyright enjoyed by the author praising the life of ‘Sree Narayana Guru’, the Holy Karma Yogi of Kerala.

11. The distortion, mutilation and alteration of plaintiff’s work and its use and its inclusion as a portion of work alleged to be written by the defendants 4 & 5, caused much pains and hardships to the plaintiff and the same has seriously affected his honour the reputation.

12. The defendants 1 to 5 are jointly and severally engaged themselves in the large scale business of printing, selling and marketing the said ‘Sree Narayana Gurudeva Bhagavatham’. As stated above the said book contains several lines copied from the plaintiff’s book ie., 97 lines verbatim and 217 lines altered. The said defendants are not having any right to include or copy those lines in their book. The said copying and inclusion of plaintiff’s literary work in the defendants alleged book is absolutely unauthorised, and illegal.

13. The said illegal and unauthorised act is still being continued by the said defendants by proceeding with re-printing, selling and marketing of plaintiff’s literary work in their disputed book and the same has to be restrained by the immediate intervention of this Hon’ble Court by passing a decree or order of prohibitory injunction.

14. The said defendant’s book ‘Sree Narayana Gurudeva Bhagavatham’ has absolutely pirated those portion of plaintiff’s literary work which is a naked violation of plaintiff’s individual right. The said defendants 1 to 5 are jointly and severally liable for the offence of infringement of copyright and other rights conferred to the plaintiff by Copyright Act and other laws of the land.

15. ‘Sree Narayana Guru Bhagavatham’ the literary creation of plaintiff is the product of years long mental exertion, strenuous hardwork and studies and which the defendants easily adapted and copied illegally in their disputed book for business and monitory motive, which gave the plaintiff mental pains and suffering and caused irreparable losses, injuries and humiliation to the honour and reputation of the plaintiff. Hence the plaintiff claims adequate and sufficient compensation as damages from the said defendants against their illegal and unauthorised acts. The plaintiff is entitled to both special and general damages against them.

16. The said defendants published their book and launched into the market for trade in the last week of 2005, and they published and marketed more than 5000 copies of the said book using and copying the literary work of the plaintiff. The said defendant miserably failed to comply with the provisions of Press Act, they did not cite the name of the author of the book, the month and year of publication, name of the press etc. These legal formalities are also violated by the said defendants keeping in their mind that the said book is a copied one. Hence in violation of Press Act and its provisions the defendants 1 to 5 are also liable to consequences.

17. A large number of copies of the disputed book are sold by the said defendants in the public book market, and they are also liable to furnish a detailed account of the number of copies they sold, cost of copying and printing, other incidental expenses etc, and the account of the amount derived from the dealing of the said book, and hand over the said amount to the Court. The defendants are also liable to furnish the detailed account of number of copies of the book kept by them for the purpose of sale, and those copies of the book are also to be surrendered before the Court.

18. The defendants are also to be directed to show their courtsey in the forward of their book which is already printed, incorporating the same by pasting on the said page admitting the adaption and copying of plaintiff’s literary book.

19. Due to the illegal acts of the defendants and selling of the pirated book statewide the plaintiff has been put to irreparable injury, loss of reputation and has sustained heavy pecuniary loss and damages which is limited to Rs. 50,000/- and the said amount is to be realised from defendants 1 to 5 and their assets.”

3. Defendants 1 to 5 resisted the suit by filing a joint written statement dated 16.6.2006. They denied the plaint averment that defendants 2 and 3 had approached the plaintiff and requested him to sell his copyright in Ext.A1 literary work. They also denied the plaint averment that defendants 2 and 3 had repeated the offer on 29.9.2005 and had thereafter purchased a copy of Ext.A1 literary work from the plaintiff by paying Rs.100/-. They contended that the first defendant is the publisher of the book Sreenarayana Guru Deva Bhagavatham (Ext.A2) with copyright in the year 2005, that they have every right to publish the said book, that they have not copied the contents of Ext.A2 literary work from any book and that they have not infringed the copyright of any author. It was contended that defendants 4 and 5 have written the poem on their own, that the plaintiff has no exclusive right over the idea of Guru Bhagavatham, that many authors have written Guru Bhagavatham, that the defendants have not published Sreenarayana Guru Deva Bhagavatham by adapting, copying, mutilating or modifying or rearranging any of the lines in Ext.A1 literary work as alleged by the plaintiff, that the work Sreenarayana Guru Deva Bhagavatham (Ext.A2) published by the defendants is composed of literary works of defendants 4 and 5 and Swami Muni Narayana Prasad, Dr.Geetha Suraj, Dr.Vellayani Arjunan, Acharya Vidhwan Ramankutty Sasthrikal, V.Jayakumar, G.Priyadarsanan, Dr.Shornoor Karthikeyan and N.Natesan, that the said book contains Sree Narayana Guru Bhagavatham, Sthuthi Geethangal, Poetries, Keerthanas, Interpretations of Gurudeva literary works in Sanskrit, Sthothras in Malayalam, Sanskrit and Tamil, proses in Malayalam, translated works, other literature, biography by the great poet Kumaranasan, writings and teachings of Sreenarayana Guru, his real picture and pictures of holy places and temples associated with his name and even his handwriting and that Ext.A2 book is not an anonymous or pseudonymous reproduction of any book as claimed by the plaintiff. They also contended that the sixth defendant as publisher of the book Sree Narayana Guru Bhagavatham, has filed O.S.No.1 of 2006 in the Court of the District Judge of Thiruvananthapuram for the same relief against defendants 1 and 3, that the plaintiff has suppressed the said fact, that the plaintiff is not a party to the said suit, but the sixth defendant, who is the plaintiff in that suit, has pleaded that he is, by agreement with the plaintiff, the copyright owner of the first edition of the book Sree Narayana Guru Bhagavatham (Ext.A1). It was contended that the institution of O.S.No.1 of 2006 would show that the plaintiff as well as the sixth defendant claim to be the copyright owners in respect of the literary work Sree Narayana Guru Bhagavatham and that the defendants have filed objections to the said suit. The relevant averments in that regard contained in paragraphs 6 to 14 of the written statement dated 16.6.2006 filed by defendants 1 to 5 are extracted below:-

“6. The averments in para 6 of the plaint are false and denied. The defendants had not copied the lines of the said book published by them from any book. The lines mentioned by the plaintiff does not entitle him for any relief. The said book published by the defendants is not infringing copy of any book. The defendants 4 and 5 have written the said poem on their own. The plaintiff has no exclusive right of the idea of Guru Bhagavatham. Many authors have written Guru Bhagavatham.

7. The averments in para 7 and 8 of the plaint are false and denied. The defendants have not published the said book by adapting, copying, mutilating or modifying or rearranging any of the lines as claimed by the plaintiff. The work “Sree Narayana Gurudeva Bhagavatham” published by the defendants is composed of literary works of authors mentioned above and Swami Muni Narayana Prasad, Dr.Geetha Suraj, Dr.Vellayani Arjunan, Acharya Vidhwan Ramankutty Sasthrikal, V.Jayakumar, G.Priyadarsanan, Dr.Shornoor Karthikeyan, N.Natesan. The said book contains Sreenarayana Guru Bhagavatham, Sthuthi Geethangal, Poetries, Keerthanas, Interpretations of Gurudeva literary works in Sanskrit, Sthothras in Malayalam, Sanskrit and Tamil, proses in Malayalam, translated works, other literature biography by great poet Kumaranasan, writings and teachings of Sreenarayana Guru, his real picture ad other pictures of holy places and temples associated with his name and even his handwriting. The said book also mentions the important milestones in the life of Sree Narayana Guru. The said book is thus a vast literary work. The said book is not anonymous nor pseudonymous reproduction of any book as claimed by the plaintiff. The defendants have not violated the copy right of any book. The plaintiff does not have any copyright.

8. The averments in para 9 and 10 of the plaint are false and denied. The defendants have not copied the lines of any book as claimed by the plaintiff. The pages for comparison does not entitle the plaintiff for any relief. The said book published by the defendants does not infringe the copyright of any book. The plaintiff does not have any copyright.

9. The averments in para 11 and 12 of the plaint are false and denied. The defendants have not distorted, mutilated nor altered any work as stated by the plaintiff. No hardship nor pain has been caused to the plaintiff nor his reputation was affected. These are all pleaded by the plaintiff only to make out a case for himself.

10. The averments in paras 12 and 13 of the plaint are false and incorrect and denied. As stated above the defendants herein have not copied the lines of any book as claimed by the plaintiff. The plaintiff does not have any literary work. The defendants herein have every right to print publish or sell their said book. The marketing and sales of the said book has already started ever since 11.12.2005. These defendants have not done any illegality. The plaintiff does not have any right for any order in his favour in this suit.

11. The averments in para 14 and 15 of the plaint are false and denied. As stated above the defendants have not pirated any work nor have done any illegality in publishing their said book. The plaintiff is put to strict proof that the book so claimed by him is the outcome of his own industry without adapting source from any other similar work and the said pleading of the plaintiff is denied. The defendants herein have not copied from the book as claimed by the plaintiff. He had not suffered any losses, injury nor humiliation to the honour and reputation of the plaintiff. The plaintiff is not entitled for any compensation or damages in this suit.

12. The averments in para 16 of the plaint are false, incorrect and have denied. As stated above the defendants herein have every right to publish, sell their said book as they have not done any illegality. It is false that the defendants failed to comply with the provisions of the Press Act in their said book. The defendants published their said book in the year 2005 and the said book contains such fact. The authors of the book as stated above are included in the said book. The authors of the book are Puthenvelikkara Sukumaran, N.K.Natarajan, Swami Muni Narayana Prasad, Dr.Shornoor Karthikeyan, N.Natesan. The names of the authors are printed on the outside of the said book after the picture of Sree Narayana Gurudevan and Lord Ganapathy at the very beginning.

13. The averments in para 17 of the plaint are intended to cause hardship and loss and injury to the defendants and denied. As stated above the defendants are entitled to sell their said book in the public market and the plaintiff does not have any right or authority to obstruct that. The plaintiff does not have any right for any relief against these defendants and the details of the book sold and to be sold need not be surrendered to the Honourable Court. The plaintiff has become envious of the fact that the defendants’ book has become a success and want to obstruct its sale by this false suit in order to vex and harass the defendants.

14. The 6 th defendant in this suit as publisher of the book claimed by the plaintiff has filed a false vexatious suit as O.S.1/2006 before the Honourable District Court, Thiruvananthapuram for the same relief herein against the 1 st and 3 rd defendants herein. The plaintiff has willfully suppressed that fact. The plaintiff herein is not even in the party array in the said suit. The 6 th defendant herein in that suit has pleaded that he is by agreement with the plaintiff, the copyright owner of the 1 st edition of the book published in 2006. This shows that the plaintiff herein and the 6 th defendant are claiming against themselves to be owners of copyright, if any. These defendants have already filed their objections in the said suit and the plaintiff therein has succeeded to obtain any orders against them till date from the Honourable Court.”

4. The sixth defendant did not enter appearance and was set ex parte by order passed on 10.7.2006. The trial court, after considering the rival contentions, framed the following issues for trial:-

1. Whether the suit is maintainable?

2. Whether the plaintiff has got exclusive copyright over the literary work done by him under the caption “Sreenarayanaguru Bhagavatham?

3. Whether the defendants 1 to 5 have violated the copyright, if any, obtained by the plaintiff in literary work done by him by name “Sreenarayanaguru Bhagavatham”?

4. Whether the defendants 1 to 5 have committed any act of piracy while publishing the book by name “Sreenarayana Guru Deva Bhagavatham”?

5. Whether the plaintiff is entitled to get a decree for injunction, prohibitory or mandatory, as prayed for?

6. Whether the plaintiff is entitled to get any compensation from the defendants 1 to 5, and if so, what shall be the quantum ?

7. Reliefs and cost?

5. In the court below, the plaintiff was examined as P.W.1, the sixth defendant was examined as P.W.2 and Exts.A1 to A10 were marked on the side of the plaintiff. A copy of the plaint in O.S.No.1 of 2006 filed by the sixth defendant in the District Court, Thiruvananthapuram was produced and marked as Ext.B1. No oral evidence was adduced on the side of the defendants. On issue No.1, the trial court held that the suit as framed is maintainable in view of the fact that the defendants admit the fact that the plaintiff is the author of Sree Narayana Guru Bhagavatham (Ext.A1) published by the sixth defendant in the year 2005 and section 55 of the Copyright Act, 1957 provides for civil remedies for infringement of copyright. On issue No.2, namely, as to whether the plaintiff has got exclusive copyright over the literary work “Sree Narayana Guru Bhagavatham”, the trial court held that the plaintiff has failed to prove his assertion that he has got exclusive copyright over the ideas and preachings presented in Ext.A1 literary work. The trial court further held that in view of the fact that the sixth defendant has instituted O.S.No.1 of 2006 on the file of the District Court, Thiruvananthapuram, the plaintiff is not entitled to assert and claim exclusive copyright over the literary work, Sree Narayana Guru Bhagavatham (Ext.A1). On issues 3 and 4, namely as to whether defendants 1 to 5 have violated the copyright, if any, obtained by the plaintiff in the literary work “Sree Narayana Guru Bhagavatham” and whether defendants 1 to 5 have committed any act of piracy while publishing the book by name Sreenarayana Guru Deva Bhagavatham, the trial court held that without an expert opinion on the point, the court is incompetent to express any opinion on the disputed claims of the plaintiff. The trial court accordingly held that the plaintiff has failed to prove his case that defendants 1 to 5 have violated his copyright by committing piracy while publishing Ext.A2 literary work. Consequently the trial court held on issue No.5 that the plaintiff is not entitled to the relief of permanent prohibitory and mandatory injunctions. On issue No.6 the trial court held that the plaintiff is not entitled to get any amount as compensation from defendants 1 to 5. The suit was accordingly dismissed. The plaintiff has, aggrieved thereby, filed this appeal.

6. I heard Sri.A.R.Dileep, learned counsel appearing for the appellant and Sri.N.P.Sethu, learned counsel appearing for respondents 1 to 3. I also heard Sri.R.Harikrishnan and Sri.Binoy K.Kadavan, learned counsel who assisted this court on request. Sri.A.R.Dileep, learned counsel for the appellant contended that the infringement of the copyright alleged was not copying of the ideas and preachings of Sree Narayanaguru presented in Ext.A1 publication, but an act of piracy namely the verbatim copying of lines and stanzas from the plaintiff’s book in the offending publication Ext.A2 and notwithstanding the fact that issue No.2 framed by the trial court for consideration was whether the plaintiff has exclusive copyright over the literary work Sree Narayana Guru Bhagavatham, the trial court erred in proceeding on the basis that the plaintiff is claiming copyright over the ideas and preachings of Sree Narayanaguru. Inviting my attention to the finding in paragraph 8 of the impugned judgment, learned counsel for the appellant contended that the trial court misdirected itself in proceeding on the basis that the copyright claimed was over the ideas and preachings of Sree Narayanaguru, whereas on a reading of the plaint and the testimony tendered by the plaintiff examined as PW-1 it can be seen that the case set out in the plaint is exclusive copyright over the literary work Sree Narayana Guru Bhagavatham (Ext.A1) published by the sixth defendant. Referring to the findings and the observations in paragraph 5 of the impugned judgment, learned counsel contended that registration of copyright is not required to initiate an action for infringement of copyright and that the trial court also erred in holding that the plaintiff should have examined experts to prove that defendants 1 to 5 have committed an act of piracy by copying from Ext.A1. Learned counsel for the appellant invited my attention to the decision of this court in

# Madhavan v. S.K.Nayar and Others, 1987 (2) KLT 47

and contended that registration of a work under the Act is not compulsory and is not a condition precedent for maintaining a suit for damages for infringement of copyright and therefore, the trial court erred in holding out the non-registration of the copyright in respect of Ext.A1 publication against the plaintiff. Referring to the decisions of this court in

# Cherian P.Joseph v. K.Prabhakaran Nair (AIR 1967 Kerala 234)

# Associated Electronic & Electrical Industries (Bangalore) Pvt. Ltd. v. M/s. Sharp Tools, Kalapatti (AIR 1991 Karnataka 406)

# Abraham v. Sadanandan and Others (1979 KLT 493)

# Madhavan v. S.K.Nayar and Others (1987 (2) KLT 47)

and

# Hamsa v. Syed Agencies (1990(1) KLT 785)

learned counsel for the appellant contended that the trial court ought to have compared the two publications for the purpose of ascertaining whether there is substantial copying from the plaintiff’s publication (Ext.A1) which was published at an earlier point of time, in the offending publication (Ext.A2) and that the trial court erred in non-suiting the plaintiff on the ground that he has not examined experts to prove his allegation that defendants 1 to 5 have committed an act of piracy and thereby infringed his copyright over Ext.A1 publication. Learned counsel submitted that he had in paragraph 1 of the plaint positively averred that he is the author of the literary work Sree Narayana Guru Bhagavatham (Ext.A1) published by the sixth defendant in February 2005, that in paragraph 2 he had averred that the said literary work is a devotional poem which recites his spiritual journey through the divine history, life and preachings of Sree Narayana Guru, that in paragraph 15 he had positively averred that Sree Narayana Guru Bhagavatham, the literary creation of the plaintiff is the product of years long mental exertion, strenuous hard work and studies, that defendants 1 to 5 have not in their written statement disputed the said fact, but had only contended that the plaintiff has to prove the averments in paragraphs 1 and 2, that they had not specifically denied the averments in paragraphs 1, 2 and 15 of the plaint, but had only vaguely denied the averments and contended that they have not pirated any work in publishing Ext.A2 and therefore, the trial court ought to have held that the burden was on the defendants to show that they have not violated the copyright of the plaintiff. Learned counsel for the appellant also contended that the plaintiff examined as PW-1 had spoken to the acts of piracy committed by defendants 1 to 5 as alleged in the plaint and that the testimony tendered by him in that regard was not discredited either in cross examination or by other evidence. Learned counsel for the appellant also assailed the finding of the trial court in paragraph 10 of the impugned judgment that in view of Ext.A10 agreement wherein the sixth defendant was given the right to print and publish 1,000 copies of Ext.A1 publication, the plaintiff had no right to claim exclusive copyright over the literary work evidenced by Ext.A1. Learned counsel contended with reference to Ext.A10 agreement dated 17.2.2005 and the testimony tendered by the sixth defendant examined as PW-2 that the right of the sixth defendant was only to print and publish 1,000 copies of the book Sree Narayana Guru Bhagavatham and the assignment of the copyright for the said purpose will not deprive the plaintiff of the right to sue for infringement of the copyright by any person other than the sixth defendant. Learned counsel contended that the mere fact the plaintiff had permitted the sixth defendant to print and publish 1,000 copies of the book Sree Narayana Guru Bhagavatham is not a reason to hold that he had no existing copyright over Ext.A1 work.

7. Per contra, Sri.N.P.Sethu, learned counsel appearing for respondents 1 to 3 contended that the plaintiff has not proved any act of piracy or violation of copyright by examining experts in the literary field and has also failed to prove his case that defendants 1 to 5 have substantially copied from his work Ext.A1 when they published the book titled Sreenarayana Guru Deva Bhagavatham. Referring to the decision of the Apex Court in

# Ramesh Chandra Agrawal v. Regency Hospital Ltd. and Others, 2009 (9) SCC 709

learned counsel contented that as the matter in dispute was outside the knowledge and experience of a lay person, there was need to hear expert opinion and in the absence of expert opinion to show that an act of piracy has been committed, the court below was perfectly right in non-suiting the plaint. Learned counsel for respondents 1 to 3 also contended that the plaintiff cannot have any copyright in the ideas and preachings of Sree Narayanaguru and therefore for that reason also, the impugned judgment does not merit interference.

8. Sri.R.Harikrishnan and Sri.Binoy K.Kadavan, learned Amicus Curie appointed by this court, submitted that the exclusive right to prevent copying or reproduction of a work is the most fundamental and historically the oldest right of a copyright holder, that it is for the claimant to prove infringement of copyright by establishing substantial similarity which is prima facie evidence of copying and that once a prima facie case is established, the burden shifts to the opposite side to refute it by evidence of independent witnesses or by giving alternative explanation for similarity and that in cases where infringement of copyright over a literary work is involved, though an expert’s opinion as to whether or not copying has taken place is admissible, it is for the court to decide whether an act of piracy has been committed by copying from the plaintiff’s publication. The learned Amicus Curie submitted that expert witnesses are called in infringement actions to examine the similarities and differences which are said to exist between two works; where necessary to explain the technicalities involved and help the court to reach a conclusion as to whether and to what extent the similarities are or are not probative of copying and that it is ultimately for the court to evaluate the evidence and to decide whether copying and thereby an act of piracy has taken place. The learned Amicus Curie also submitted that the evidence as to whether the plaintiff’s work is an original work, whether the defendant who is alleged to have committed an infringement of the copyright in respect of that work has substantially copied from the plaintiffs original work and whether such copying is a fair dealing are all matters for the court to decide having regard to the pleadings and the materials on record and that it cannot be said as a rule of certainty that in cases involving infringement of copyright in literary works, an expert should invariably be appointed to compare the two works and to bring out the similarities between the two works.

9. I have considered the submissions made at the Bar by learned counsel appearing on either side as also the learned Amicus Curiae. I have also gone through the pleadings and the materials on record. Shorn of details, the case set out by the plaintiff is that he is the author of the literary work Sree Narayana Guru Bhagavatham published by the sixth defendant in February 2005 and that defendants 1 to 3 have copied substantial portions thereof in their publication Sreenarayana Guru Deva Bhagavatham, thereby committing an act of piracy and consequently an infringement of the plaintiffs copyright over the publication Sree Narayana Guru Bhagavatham. He had in paragraph 12 of the plaint contended that defendants 1 to 5 have copied 97 lines verbatim and 217 lines with alterations and it constitutes an act of piracy. The schedule to the plaint also contains a table setting out the relevant portions of Ext.A1 (the plaintiff’s publication) which have been copied in Ext.A2 (the publication of defendants 1 to 5). Defendants 1 to 5 did not in their written statement dispute the allegation that Ext.A1 is the plaintiff’s publication. All that they stated was that the plaintiff has to prove that Sree Narayana Guru Bhagavatham is his work. The defendants had also contended that they have not violated any copyright or committed any illegality in publishing their work. They had also contended that they have not copied from the plaintiff’s book. The plaintiff, examined as PW-1 had spoken to the case set out by him in the plaint. The plaintiff had also examined the sixth defendant to whom the right to print and publish 1000 copies of Sree Narayana Guru Bhagavatham had been given, as PW-2. PW-2 has in the proof affidavit filed by him in lieu of chief examination averred that he had the right to print and publish only 1,000 copies retaining the copyright of the plaintiff and that the book Sree Narayana Guru Bhagavatham was published in February 2005. He has also proved Ext.A10 agreement entered into by him with the plaintiff and had stated that he had instituted O.S.No.1 of 2006 in the Court of the District Judge of Thiruvananthapuram to prevent publication of Sreenarayana Guru Deva Bhagavatham by defendants 1 to 5 which contain words substantially copied from the plaintiff’s publication. PW-2 had in the cross examination deposed that the suit filed by him was dismissed for default, consequent on his failure to appear. He had also admitted in cross-examination that 1000 copies of the book Sree Narayana Guru Bhagavatham were printed and sold out in July-August 2007 and he has no right to publish further copies. Ext.A10, the agreement entered into between the plaintiff and the sixth defendant discloses that the sixth defendant admits the copyright of the plaintiff over the publication Sree Narayana Guru Bhagavatham. The said document also discloses the fact that the right of the sixth defendant was only to print and publish 1000 copies of the said book. Ext.A10 agreement executed on 17.2.2005 discloses that all that the plaintiff had undertaken was that till the 1000 copies printed by the sixth defendant are sold, he will not transfer the copyright to any one else. It is also stipulated that once the 1000 copies are sold by the sixth defendant, the plaintiff can publish the book through any other publisher.

10. As stated earlier, the defendants do not dispute the fact that the plaintiff is the author of the book Sree Narayana Guru Bhagavatham. Their only contention is that they have not copied from the plaintiff’s publication. On the terms of the recitals in Ext.A10 and the fact that the defendants admit the plaintiff’s copyright over the book Sree Narayana Guru Bhaghavatham, it cannot be said that the plaintiff had no copyright over the publication Sree Narayana Guru Bhaghavatham. The finding entered by the court below in paragraph 10 of the impugned judgment that in view of Ext.A10 agreement and the suit instituted by the sixth defendant, the plaintiff was not competent to institute the suit or to claim exclusive right over the literary work evidenced by Ext.A1 cannot therefore be sustained. As the holder of the copyright in respect of the publication Sree Narayana Guru Bhagavatham, the plaintiff had every right to take steps to protect his copyright in that work and to print and publish his book and therefore it cannot be said that as the sixth defendant was given the right to print and publish 1000 copies of that book, the plaintiff cannot assert and claim exclusive copyright over the literary work Sree Narayana Guru Bhagavatham. The finding entered by the trial court that the plaintiff is not entitled to claim exclusive right over the literary work evidenced by Ext.A1 cannot therefore be sustained and I accordingly set aside the said finding.

11. A reading of the plaint discloses that the plaintiff is claiming copyright over the literary work Sree Narayana Guru Bhagavatham and not over the ideas and teachings of Sreenarayana Gurudevan presented therein. The plaintiff has no case that no one else can bring out a publication about the life and teachings of Sreenarayana Gurudevan either in prose or in verse. His case is that his copyright in Ext.A1 publication has been infringed by defendants 1 to 5. The court below therefore erred in holding that the plaintiff cannot claim copyright over Ext.A1 publication. Likewise, the trial court erred in holding out against the plaintiff his failure to have the copyright in Ext.A1 registered. A Division Bench of this court had occasion to consider the said question in

# Kumari Kanaka v. Sundararajan, 1972 KLR 536

It was held that registration of the work under the Copyright Act, 1957 is neither compulsory nor a condition precedent to maintain a suit for damages for infringement of copyright. The same view was reiterated by another Division Bench of this court in

# Madhavan v. S.K.Nayar and others, 1987 (2) KLT 47

It was held that sections 44 and 45 of the Copyright Act, 1957 which provide for registration of copyright are only enabling provisions and that registration is not a condition precedent for initiating action against infringement. The finding entered by the trial court on issue No.2 cannot therefore be sustained and I set aside the said finding.

12. I shall now consider whether the trial court was right in holding that the plaintiff should have examined experts to prove his allegation that defendants 1 to 5 have committed an act of piracy. The trial court has in paragraph 12 of the impugned judgment held that the question whether there has been a violation of the copyright is liable to be proved by the plaintiff by adducing the opinion of experts in literature. It was held that the averments in the plaint, the assertions in the affidavit filed by the plaintiff in lieu of chief examination and the comparison of the contents of Exts.A1 and A2 in the argument notes submitted by the plaintiff are insufficient to draw a conclusion that there was copying by defendants 1 to 3 of the contents of Ext.A1 book in Ext.A2 book. The trial court held that without expert opinion, the court is incompetent to express any opinion on the disputed claims of the plaintiff. In that view of the matter, the trial court answered issues 3 and 4 against the plaintiff. Consequently issue 5 and 6 were also answered against him.

13. The issue that arises for consideration before me is whether the plaintiff ought to have taken steps to examine experts in literature to prove his allegation that defendants 1 to 5 have committed an act of piracy by copying from his publication. In

# Sita Nath Basak v. Mohini Mohan Singh, AIR 1924 Calcutta 595

a Division Bench of the Calcutta High Court held that in cases involving infringement of copyright, the court should be reluctant to sit as experts and to decide the question of infringement of copyright without the aid of expert evidence. The plaintiff in that suit brought an action for infringement of copyright. The trial court dismissed the suit on the ground that “there is no reliable evidence that the forms of letters which appear in all the books are not in common use in printed Bengali and in the absence of such evidence, it is impossible to say that any of the forms is so peculiar as to suggest that the books published by the defendants are copies of the plaintiff’s book”. On appeal by the plaintiffs the Division Bench of the Calcutta High Court held that the court should be reluctant to sit as experts and to decide the question of infringement of copyright without the aid of expert evidence. The Division Bench held that the proper course is to get the opinion of experts who might be appointed commissioners to investigate and report on the matters in issue and that such a course would have been inevitable if the Bench had been so constituted that neither member was acquainted with the disputed alphabet. The Division Bench accordingly declined to take the responsibility of a minute scrutiny of the alleged similarities and dissimilarities between the contents of the books. The Division Bench held that had the controversy related to two primers written in Chinese characters, a reference to experts would have been unavoidable. The appeal was accordingly allowed, the decree and judgment dismissing the suit were set aside and the suit was remanded to the trial court in order to have the questions in controversy investigated in the light of the observations made therein. The same view was taken by a Division Bench of the Allahabad High Court in

# Gopal Das v. Jagannath Prasad and Another, AIR 1938 Allahabad 266

14. In

# Mohini Mohan Singh v. Sita Nath Basak, AIR 1931 Cal. 233

a Division Bench of the Calcutta High Court held that “whether a work is a colourable imitation of another must necessarily be a question of fact; but mere similarity will not be enough, as it might be due (1) to mere chance, (2) to both works being taken from a common source, (3) to the plaintiff’s work being taken from the defendant’s and (4) the defendant’s work being taken from the plaintiff’s, and that each case must depend upon its own circumstances. It was held further that in the case of works not original in the proper sense of the term, but prepared from materials which are open to all, the principle is that a person is not at liberty to use or avail himself of the labour which another has bestowed for the purpose of producing his works – that will be taking away the result of another man’s labour, or, in other words, his property, and that colourable imitation of another’s work could also be covered by an injunction.”

15. In

# Cherian P.Joseph v. K.Prabhakaran Nair, AIR 1967 Kerala 234

a learned single Judge of this court held that in a prosecution under section 63 of the Copyright Act, 1957, it is for the court to compare and find out whether the offending publication is the translation of the original. The respondents in that case were prosecuted for the offence under section 63 of the Copyright Act, 1957. It was alleged by the complainant that without his permission or knowledge, the accused have infringed his copyright by publishing Malayalam translations of his English copy. The trial court on a comparison of the two publications and relying on the testimony tendered by PWs 2 and 4 who had actually translated the complainant’s book held that there is no consistent evidence to show that they were true translations of the complainant’s books. On appeal, a learned single Judge of this court after comparing the translations with the complainant’s books held that prima facie it appears that they are substantially translations of the complainant’s book. It was held that in a prosecution under section 63 of the Copyright Act, 1957, it is a matter for the court to compare and find out whether they are translations of the original.

16. In

# R.G. Anand v. M/s. Delux Films and Others, AIR 1978 SC 1613

the Apex Court laid down the principles and tests to be applied to determine whether there has been a violation of the copy right or not. The relevant portions of the judgment are extracted below :

“45. Thus, the position appears to be that an idea, principle, theme, or subject matter or historical or legendary facts being common property cannot be the subject-matter of copyright of a particular person. It is always open to any person to choose an idea as a subject-matter and develop it in his own manner and give expression to the idea by treating it differently from others. Where two writers write on the same subject similarities are bound to occur because the central idea of both is the same but the similarities or coincidences by themselves cannot lead to an irresistible inference of plagiarism or piracy. Take for instance the great poet and dramatist Shakespeare most of whose plays are based on Greek, Roman and British mythology or legendary stories like Merchant of Venice, Hamlet, Romeo Juliet, Julius Caesar etc. But the treatment of the subject by Shakespeare in each of his dramas is so fresh, so different, so full of poetic exuberance, elegance and erudition and so novel in character as a result of which the end product becomes an original in itself. In fact, the power and passion of his expression, the uniqueness, eloquence and excellence of his style and pathos and bathos of the dramas become peculiar to Shakespeare and leaves precious little of the original theme adopted by him. It will thus be preposterous to level a charge of plagiarism against the great playwright. In fact, throughout his original thinking, ability and incessant labour Shakespeare has converted an old idea into a new one, so that each of his dramas constitute a masterpiece of English literature. It has been rightly said that “every drama of Shakespeare is an extended metaphor”. Thus, the fundamental fact which has to be determined where a charge of violation of the copyright is made by the plaintiff against the defendant is to determine whether or not the defendant not only adopted the idea of the copyrighted work but has also adopted the manner, arrangement, situation to situation, scene to scene with minor charges or super-additions or embellishment here and there. Indeed, if on a perusal of the copyrighted work the defendant’s work appears to be a transparent rephrasing or a copy of a substantial and material part of the original, the charge of plagiarism must stand proved. Care however must be taken to see whether the defendant has merely disguised piracy or has actually reproduced the original in a different form, different tone, different tenor so as to infuse a new life into the idea of the copyrighted work adapted by him. In the latter case there is no violation of the copyright.

46. 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, subjectmatter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, 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 copy-right. 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 amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests 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 stage 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 is by and large a copy of the original play, violation of the copyright may be said to be proved.

17. The Apex Court thereafter got the play read over in the presence of learned counsel on both sides and also watched the movie by screening it for the purpose of appreciating the judgment of the trial court and the evidence led by the parties and held as follows:

“61. Thus, applying the principles enunciated above and the various tests laid down to determine whether in a particular case there has been a violation of the copyright we are of the opinion that the film produced by the defendants cannot be said to be a substantial or material copy of the play written by the plaintiff. We also find that the treatment of the film and the manner of its presentation on the screen is quite different from the one written by the plaintiff at the stage. We are also satisfied that after seeing the play and the film no prudent person can get an impression that the film appears to be a copy of the original play nor is there anything to show that the film is a substantial and material copy of the play. At the most the central idea of the play, namely, provincialism is undoubtedly the subject matter of the film along with other ideas also but it is well settled that a mere idea cannot be the subject-matter of copyright. Thus, the present case does not fulfill the conditions laid down for holding that the defendants have made a colourable imitation of the play.

62. On a close and careful comparison of the play and the picture but for the central idea (Provincialism which is not protected by copyright), from scene to scene, situation to situation, in climax to anti-climax, pathos, bathos, in texture and treatment and purport and presentation, the picture is materially different from the play. As already indicated above, applying the various tests outlined above we are unable to hold that the defendants have committed an act of piracy in violating the copyright of the play.”

18. A Division Bench of the Karnataka High Court considered the very same issue in

# Associated Electronics & Electrical Industries (Bangalore) Pvt. Ltd. v. M/s.Sharp Tools, Kalapatti, AIR 1991 KARNATAKA 406

and held as follows:

“One of the surest test to determine whether or not there has been a violation of copy right is to see if the reader, spectator, or the viewer after having read or seen both the works would be clearly of the opinion and get an unmistakable impression that the subsequent work appears to be a copy of the first. In other words, dealing with the question of infringement of copy right of the applicant’s work by the respondent’s work, the court is to test on the visual appearance of the object and drawing, design or artistic work in question and by applying the test, viz., ‘lay observer test’ whether to persons who are not experts in relation to objects of that description, the object appears to be a reproduction. If to the ‘lay observer’ it would not appear to be reproduction, there is no infringement of the artistic copy right in the work.”

19. The dispute in that case related to the depiction of the trade name “Sharp Tools” used by the respondent therein, which according to the appellant was a colourable imitation of the appellant’s artistic work. The Division Bench of the Karnataka High Court held that the test to be observed is the “lay observer test” and if to the lay observer it would not appear to be a reproduction, there is no infringement of the artistic copy right in the work. The Division Bench also placed reliance on the Division Bench decisions of the Madras High Court in

# D.C.S.Bureau v. United Concern, AIR 1967 Madras 381

and

# C. Cunniah & Co. v. Balraj & Co., AIR 1961 Madras 111

wherein the Madras High Court held that when the question is whether the defendants book is a copy or a colourable imitation of the plaintiff’s book, the resemblance between the two books is to be judged by eye. In

# Florence A.Deeks v. H.G.Wells and Others, AIR 1933 PC 26

it was held that an infringement of copyright in a literary work may be proved by intrinsic evidence consisting of a large number of similarities, of like omission, of plan, of phrase and of common mistakes; but that such evidence must be of the most cogent force sufficient to give rise to an irresistible inference that the one work was copied from the other, before it can be accepted as against the oath of respectable and responsible people that there was no copying in fact. The Privy Council held that where experts are called to point out the coincidences, similarities and omissions to be found in the two works, they could not be permitted to offer their opinion that the one should have been copied from the other. In other words, it was held that though expert witnesses had been examined to give evidence as to the result of their opinions and they had pointed out the coincidences, similarities, identical omissions and so forth, the question whether they were copied and there is infringement of copyright, is not a matter for expert testimony at all.

20. In Halsbury’s Laws of India Volume 20(1) at paragraph 185.403 it is stated as follows: [185.403]

Generally The real task in a copyright infringement action is to determine whether there has been copying of the expression of an idea rather than just the idea itself. For infringement, there must be substantial similarity not only of the general ideas, but also of expressions of those ideas. Traditional determination of whether copying, sufficient to constitute infringement, has taken place is done under a two fold test of having extrinsic and intrinsic elements. Where the test for similarity of ideas is a factual one, it is the extrinsic test. It is extrinsic because it depends not on the responses of the court, but on specific criteria which can be listed and analysed. Such criteria include the type of artwork involved, the materials used, the subject matter and the setting of the subject. The question may often be decided as a matter of law. If there is substantial similarity in ideas, then the court must decide whether there is substantial similarity in the expressions of the ideas so as to constitute infringement. The extrinsic test now objectively considers whether there are substantial similarities in both ideas and expression, whereas the intrinsic test continues to measure expression subjectively. In order to determine whether similarities result from unprotectable expression, analytic dissection of similarities may be performed. If this demonstrates that all similarity in expression arise from use of common ideas, then no substantial similarity can be found. Analytic dissection focuses on isolated elements of each work to the exclusion of the other elements, combination of elements and expressions therein. The test to be applied in determining whether there is substantial similarity in expressions is labelled as an intrinsic test, that is, one depending on the response of the ordinary reasonable person with no expert assistance. It is intrinsic because it does not depend on the type of external criteria and analysis which marks the extrinsic test. Here, analytic dissection and expert testimony are not appropriate. Duplication or near identity is not necessary to establish infringement. The relevant enquiry is whether an ordinary person would perceive a substantial taking of protected expression.

21. In

# Virgin Atlantic Airways Limited v. Premium Aircraft Interiors Group Limited and Another [2009 EWHC 26 (PAT)]

it was held that in considering the question of copying, the function of the experts is not to evaluate the factual evidence, but to point out to the court the similarities and differences between the design and the alleged infringement; and the significance of those similarities and differences, so that the court can come to a view on whether they are such as to lead to a rebuttable inference that the defendant has copied the claimant’s design. It was held that an expert ought to deal both with the similarities between the design and the alleged infringement and also with the differences. To concentrate on the similarities alone or on the differences alone gives an unbalanced view, it was held.

22. In

# Abraham v. Sadanandan and Others, 1979 KLT 493

a learned single Judge of this court dealing with a case of infringement of copyright held as follows:

In Para.13 and 14 the learned Judge has discussed the list of similarities that are said to exist in the drama and in the film. As many as 30 situations were mentioned in the list and the learned Judge has considered each one of them and come to the conclusion that there is no identity or similarity in these between the drama and the film. The learned Judge has also in Para.14 pointed out that there is no identity or comparison between the important characters mentioned in the drama and the film and said that there is no infringement. I have gone through over again each one of these situations and characters alleged to be similar in the drama and in the film and I agree with the learned Judge that no case of infringement has been made out. What is required to make out a case of infringement is that on reading the screen play and dialogue one must get an impression that this is the reproduction of the drama. Such is not the case here. So I hold that the plaintiff has failed on the merits also. In the result I dismiss the appeal with costs.

23. In

# Madhavan v. S.K.Nayar and Others, 1987 (2) KLT 47

a Division Bench of this court examined the common features found in the literary works which were the subject matter of the dispute and held as follows:

“27. We examined the common features found in the plaintiff’s work Alayazhi on the one side and the film ‘Avalute Ravukal’, the script of the film Ext.B3 and also Ext.B4 the manuscript copy of the novel Mukthi on which the screen play was based on the other in the light of the principles enunciated in the above ruling and we are unable to find any material to bold that there is any infringement of copyright of the plaintiff in the instant case. The general structure of the theme, various situations in the stories and characters depicted in the novel and in the film have been elaborately discussed in Para.27 to 41 of the judgment of the court below. We do not want to repeat those aspects over again in this judgment. Suffice it to say that apart from the fact that both in the novel Alayazhi and the film Avalute Ravukal the story of a prostitute depicted, we could not see any similarity in the general structure of the theme or in the depiction of different characters and situations and scenes in the novel and the film, or in the treatment of the film and the manner of its presentation on the screen. We went through several passages in the novel of the plaintiff Alayazhi and also the script Ext.B4 and we are satisfied that no prudent person can get an impression that the film Avalute Ravukal and its theme, situation or scenes are copied from the novel of the plaintiff, Alayazhi. There is nothing to indicate that the film is a substantially or materially a copy of the novel of the plaintiff Alayazhi.

28. We are unable to find any resemblance or similarity in the theme, scenes or situations in the film. Material incidents, situations and scenes portrayed in the film are substantially and materially different from the situations, incidents and scenes portrayed in the novel Alayazhi of the plaintiff. As a matter of fact we have closely examined Ext.A15 the tabulations of scenes and situations alleged to have been copied from the novel Alayazhi submitted by the plaintiff and compared the same with reference to the scenes in the original manuscript copy of Avalute Ravukal but we would not find any common feature in the scenes or situations so as to justify a conclusion that the script of Avalute Ravukal is a colourable imitation of the novel of the plaintiff Alayazhi.

29. We are fully alive to the fact that mere introduction of some changes here and there in order to disguise the attempt at plagiarism or interchanges of relative position in which the principal actors stand to create an impression that the story of the film is entirely different is not sufficient to rule out the theory of colourable imitation. The safest test to determine whether or not there has been a violation of copyright is to find out if the reader, spectator or viewer after having read or seen both the works can get an impression that the impugned work or film is an imitation of the other. In our opinion no prudent man who has seen the film and read the novel Alayazhi will come with an impression that the former is an imitation of the latter. In the circumstances we hold that there is no infringement of the copyright of the plaintiff in making the film ‘Avalute Ravukal’. In the result, there is no merit in the appeal and it is accordingly dismissed. In the circumstances there will be no order as to costs.’

24. From the decisions referred to above, the principle that emerges is that in an action for violation of copyright it is primarily for the court to examine the publications, consider the various contentions regarding the passages said to have been copied, expressions borrowed, style, treatment, sequence, knitting together of topics, etc. and to decide whether the defendants have infringed the plaintiff’s copyright and whether the similarities, if any, in the two works are important enough to be noticed or are trivial and common place or are due to common sources to which the defendants had access. The trial judge cannot, in my opinion, as held by the Privy Council in

# Florence A. Deeks v. H.G.Wells & Others, AIR 1933 PC 26

leave it to the experts who may have been called in to point out the coincidences, similarities and omissions to be found in the two works. Even in cases where an expert has been appointed to examine the two publications and to submit a report, the expert can only point out to the court the similarities and differences between two publications so as to enable the court to come to a decision on the question whether the similarities and differences are such as to lead to a rebuttable inference that the defendant has copied the claimant’s work. It has been held that an expert has to deal with the similarities between the copyrighted work and the alleged infringement and also with the differences and that to concentrate on the similarities alone or on the differences alone gives an unbalanced view. In such circumstances, I am of the considered opinion that the court below ought to have even in the absence of expert opinion compared the two literary works and entered a finding as to whether defendants 1 to 5 have committed an act of piracy copying from the plaintiff’s publication and thereby infringed the plaintiff’s copyright. In any view of the case, the court below ought to have afforded the plaintiff an opportunity to apply for the appointment of an expert to compare the two works and to submit a report to the court pointing out the similarities and differences in the two works. The decision of the court below dismissing the suit filed by the appellant cannot therefore in my opinion be sustained.

For the reasons stated above, I allow the appeal, set aside the decree and judgment dated 30.3.2009 passed by the Court of the District Judge of Mavelikkara in O.S.No.1 of 2006 and remand the suit for fresh disposal in the light of the observations contained herein. The parties shall appear before the court below on 1.8.2016 through counsel. It will be open to the court below to appoint an expert to compare the two publications and to submit a report to the court pointing out the similarities and differences therein in the event of an application in that regard being filed by the plaintiff. The contentions of both sides on the merits are kept open. No costs. The court fee paid on the memorandum of appeal shall be refunded to the appellant.

Comments