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