Syndicate Of Press Of The ... vs Kasturi Lan And Sons
2005 Latest Caselaw 923 Del

JUDGMENT

Mukul Mudgal, J.

1. This is an application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (in short the `CPC') in a suit filed by plaintiff No.1 inter alia the Syndicate of the Press of the University of Cambridge which trades in the name of Cambridge University Press, The Edinburgh Building, United Kingdom(hereinafter referred to as the `Syndicate') and its Associate in India which has published the low price edition of the book in question, M/s Foundation Books Private Ltd., i.e., the plaintiff No.2 (hereinafter referred to as the `Company'). The Syndicate has averred that it is a reputed publisher with an international standing and holds all rights in respect of the publication "Advance Grammar in Use by Martin HEWINGS"(hereinafter referred to as he `subject work').

2. The plaintiffs have averred in the plaint as follows:-

(a) that the aforesaid subject work has been prescribed and used in several institutions and universities all over the world and is inter alia prescribed by Guru Nanak Dev University, Amritsar(hereinafter referred to as the `GNDU') in the State of Punjab for the students of Bachelor of Arts Part I, II and III commencing for the year 2004-05.

(b) that while the international price of the book is in the region of around $29, the Company under license from the Syndicate had produced a low price edition at the price of Rs.95/- approximately US $ 2.

(c) that the cause of action for approaching this Court arose as the defendant had published three books, namely, "KLS A Text Book of General English for B.A./B.Sc./B.Com. Part-I (G.N.D.U.)" [hereinafter referred to as the `first book'] , "KLS A Text Book of General English for B.A./B.Sc./B.Com. Part-II (G.N.D.U.)"[hereinafter referred to as the `second book'] and "KLS A Text Book of General English for B.A./B.Sc./B.Com. Part-III (G.N.D.U.)" [hereinafter referred to as the `third book'] which contained a brazen copy of a reproduction of the subject work and incorporated verbatim the literary work of the subject work including the complete set of exercises and the Answer Key to the said exercises from Unit 1 to 120.

(d) that the first book contains unauthorized reproduction of the literary text from the exercises and Answer Keys given in Units 1 to 42 of the plaintiffs' subject work and the second one contains reproduction of the literary text from the exercises and answer keys given in Units 43 to 81 of the plaintiff's subject work and third one contains reproduction of the literary text from Units 82 to 120 of the plaintiff's subject work.

3. As an example, the following extracts were cited to demonstrate and substantiate the plea of the plaintiffs:-

""EXTRACTS FROM THE PLAINTIFFS' TITLE `ADVANCED ENGLISH GRAMMAR' BY MARTIN HEWINGS. PUBLISHED BY _ CAMBRIDGE UNIVERSITY PRESS EXTRACTS FROM THE DEFENDANT'S TITLE `ENGLISH GUIDE' PUBLISHED BY KASTURI LAL and SONS (KLS).

Unit _ 1, Exercise 1.1, Page 3

Unit _ 1, Exercise 1.1, page 13

Suggest a verb to complete each sentence. Use the present simple or the present continuous. Use to add any words outside the space

Suggest a verb to complete each sentence. Use the present simple or the present continuous. Use to add any words outside the space

1. Even though Sarah says she's feeling better, I think she is still losing weight.

2. Frank............stamps in his spare time. It's his hobby.

3. The airline currently...........half price ticket to Japan, but for one month only.

4. My mother...............all the doors and windows before she goes to bed.

5. Because of the present threat of war, the best qualified people ....... the country.

6. Both ancient and recent records show that farmers...............long hours.

7. She has an important project to finish by next week, so she...........in the evening at present.

8. Philip is an excellent linguist. He .......................six languages fluently.

9. `How are you getting on with the book?' At the moment I ......... chapter four'.

10. Here we are in Switzerland again. We ....... in a very comfortable small hotel .....

1. Even though Sarah says she's feeling better, I think she is still losing weight.

2. Frank............stamps in his spare time. It's his hobby.

3. The airline currently...........half price ticket to Japan, but for one month only.

4. My mother...............all the doors and windows before she goes to bed.

5. Because of the present threat of war, the best qualified people ....... the country.

6. Both ancient and recent records show that farmers...............long hours.

7. She has an important project to finish by next week, so she...........in the evening at present.

8. Philip is an excellent linguist. He .......................six languages fluently.

9. `How are you getting on with the book?' At the moment I ......... chapter four'.

10. Here we are in Switzerland again. We ....... in a very comfortable small hotel.

Key to exercises _ Unit 1, 1.1, page 289 Answers, Exercise_1.1_page 14 Some possible verbs are given

2. collects

3. is (or are) currently offering/selling

4. locks/shuts

5. are leaving/deserting

6. work

7. is working

8. speaks

9. I'm reading/writing

10. are staying

2. Collects

3. is currently selling

4. shuts

5. are leaving

6. work

7. is working

8. speaks

9. reading

10. are staying"

(e) That the defendant had also copied the scheme of the exercise, answers, and placement of topics. Thus the violation of the plaintiffs' copyright in the subject work as contemplated by Section 51 of the Copyright Act has taken place which disregards the skill labour and ingenuity of the original author Hewings in creating, designing and making a world class user friendly work for advanced English learning.

(f) that as compared to the price of Rs.95 prescribed by the Company for the entire subject work for the 3 year course, the defendant's infringing books are sold at the rate of Rs.170 for each part thus aggregating Rs.510 for three years course of the Bachelor of Arts Course.

4. An ex-parte order of ad-interim injunction was passed in favor of the plaintiff on 10th November, 2004 wherein the defendants were restrained from utilizing and incorporating the verbatim text taken from the plaintiffs' subject matter titled `Advanced Grammar by Martin Hewings" in any of their publications.

5. The defendant appeared after notice and contended inter alia that printing and publishing of a guide and reproduction of a matter essentially required from the point of view of examination from the prescribed book by the University in the syllabi does not amount to infringement of copyright.

6. It was averred by the defendant as follows:

(a) that it publishes approved books by various universities including GNDU as well as guide books and has previously published guide books for the students appearing in the B.A. and other examinations of the GNDU, Amritsar.

(b) that the guide covers the complete English Paper and gives detailed instructions along with questions and answers and completely elucidates and clarifies the English Paper in such a manner as to make the students understand the English subject as per the syllabus prescribed to the students appearing for graduation in the GNDU.

(c) that more students hail from rural areas and are conversant with Punjabi and Hindi and this guide helps them to understand English in a simple way.

(d) that the plaintiffs' book is in one volume whereas the defendant's book is in three volumes, dealing with the entire syllabus.

(e) that the "Advanced English Grammar" carries a question worth of ten marks and rest of the 90% of the syllabus is covered by the other prescribed books as per the syllabus issued by the GNDU.

(f) that the guide books are distinguishable from the plaintiff No.1's book as they explain and elucidate the English Grammar in detail.

(g) that on the legal position the plaintiffs' case falls within the exception of Section 52 of the Copyright Act which reads as follows:-

"52(1)(h): The reproduction of a literary, dramatic, musical or artistic work_

(i) by a teacher or a pupil in the course of instruction:-

(ii) as part of the questions to be answered in an examination; or

(iii) in answers, to such questions;"

(g) The publishing of the guide by the defendant for the benefit of the students falls under the public domain and the guide has been duly authorised by the experienced teachers in the field of English and is in the nature of research work/review.

7. Reliance has been placed on the following judgments by the defendants in support of their case :-

(i) In Ramesh Chaudhary and Ors. v. Ali Mohd. AIR 1965 JandK 101, it was held as follows:-

"Once the original authors of the books allowed the university to publish it in their syllabus and the university published it as a part of the syllabus prescribed for its students, the matter went into the hands of the general public and no copyright in the strict sense of the term remained with the original authors. Having been published by the university, it became more or less public property. Any member of the public could publish a review or a criticism, or a guide to this book."

(ii) In E.M. Forster v. A.N. Parsuram , it was held as follows:-

"The guide was really a kind of commentary based on the original work in order to enable the university students to give effective answers to questions that may be set in the university examinations ...... The guide book remained distinctly the creation of the respondent, even if it be regarded as partly an abridgment of the novel and partly a running commentary upon it."

(iii) In Kartar Singh V Ladha Singh AIR 1934 Lahore 777 it was held as follows:-

"The laws which put a restraint on human enterprise and activity must be construed in a reasonable and generous spirit. Copyright cannot be used as a means to close all the avenues of research and scholarship and all franchise of human knowledge."

(iv) In Eastern Book Co. and Ors v. Naveen J. Desai 2001 (1) RAJ 207 DELHI it was held as follows:-

"Though a copyright protects the right of the authors and their original expression, it also encourages others to build upon the ideas and information conveyed by the work. A copyright is a limited monopoly which has its origin in protection. But no monopoly can be granted over subject-matter borrowed from the public domain. Every person can take what is useful to him, and improve, add and give to the public the whole comprising of the original work containing his additions and improvements. Under the guise of copyright, the Court cannot be asked to restrain the defendant from making this material available to the public."

(v) In McMillan and Co. Ltd. v. KandJ Cooper (AIR 1924 PC 75) it was held as follows:

"To constitute a true and equitable abridgment, the entire work must be preserved in its precise import and exact meaning' and then the act of abridgment is an exertion of the individuality employed in moulding and transfusing a large work into a small compass, thus rendering it less expensive and more convenient both to the time and use of the reader. Independent labour must be apparent, and the reduction of the size and work by copying some of its parts and omitting others confers no title to authorship, and the result will not be an abridgment entitled to protection. To abridge in the legal sense of the word is to preserve the substance, the essence of the work in language suited to such a purpose, language substantially different from that of the original. To make such an abridgment requires the exercise of mind, labour, skill and judgment brought into play, and the result is not merely copying."

(a)In Ramesh Chaudhary and Ors's case(supra) it has been laid down that no copyright in the strict sense of the term remains with the original authors of the book once they permit the university to publish it in their syllabus. After being published by the university it becomes a part of the public domain and any person can publish a review, criticism or a guide to the book. However, a review, a criticism or a guide acknowledges the original authors of the work that they deal with. A review may summaries the original work and present it for perusal to a third person so that such person may get an idea about the work. A criticism may discuss the merits and demerits of the work. A guide may seek to enable students of the original work to better understand it from the point of view of examinations. Consequently, it cannot be said that the books published by M/s Kasturi Lal and Sons the Defendant are in any way a review, criticism or a guide of the original work. Verbatim lifting of the text to the extent of copying the complete set of exercise and the key to such exercises can in no manner be termed as a review, criticism or a guide to the original work. Furthermore this Court has not granted an injunction against the publication of the entire book of the defendant but has only restrained the incorporation and utilization of the verbatim text taken from the plaintiff's publications. Therefore, this judgment of JandK High Court in Ramesh Chaudhary has no bearing on the matter in dispute.

(b) In E.M. Forster's case (supra) it was laid down that the guide book was a kind of commentary based on the original work to enable students to give effective answers to questions set in examinations. The guide book remained the original creation of the respondent even if it were regarded as part abridgment and part commentary upon the original work. But the book published by the defendants cannot be termed as a commentary on the original because a commentary is actually an expression of opinion or a set of explanatory notes on a text. Neither does the defendant's work express any opinion about the original text nor does it provide any notes with reference to the original. In fact, it merely reproduces material from the original in a mechanical manner. Even if it is assumed that the defendant's work could have enabled students to give effective answers in examinations, such a situation cannot permit purloining verbatim texts of the original work. An author cannot lift and copy entire portion of the original text and then call it a commentary. Therefore, the judgment in E.M. Forsters case has no bearing in this matter.

(c) In Kartar Singh's case (supra) it was held that any law which restrains human enterprise and activity must be construed in a reasonable and generous spirit. Copyright cannot be treated as a barrier against research and scholarship and against all frontiers of human knowledge. It is true that the law should encourage enterprise, research and scholarship. But such encouragement cannot come at the cost of the right of an individual to protect against the misappropriation of what is essentially a product of his intellect and ingenuity. The law encourages innovation and improvement but not plagiarism. Copyright is a form of protection and not a barrier against research and scholarship. Lifting portions of the original work and presenting is as on It's own creation can in no way be described as any form of bonafide enterprise or activity. Research and scholarship are easily distinguishable from imitation and plagiarism. Therefore, the judgment in Kartar Singh's case of the Hon'ble Lahore High Court as no relevance in this case.

(d) In Eastern Book Co. and Others' case (supra) it was laid down that a copyright is a limited monopoly which has its origin in protection. But no monopoly can be granted over a subject-matter borrowed from the public domain. Any person can add and improve upon the original and present the resultant whole to the public. The books published by the defendant cannot in any way be described as additions or improvements upon the original work. In fact they present them as their original creations rather than as any additions or improvement. The books do not add to or improve upon the original but instead contain material lifted from it. This material is published verbatim in these books and is claimed to be an original creation. Therefore, the judgment i

Eastern Book Co.'s case is not relevant in this matter.

(e) In McMillan and Co. Ltd. v. KandJ Cooper (AIR 1924 PC 75) it was held that to constitute a true and equitable abridgment, the entire work must be preserved in its precise import and exact meaning.

8. While the universal nature of knowledge and its dissemination freely is a laudatory concept but it must not transgress rights of an author guaranteed by the Copyright Act. Those who possess the ability to create also possess the right to assert that their creation be recognized and identified with them. They have the right to proclaim that no other person infringes upon their claim of originality and the right to limit the use and prevent the abuse of their creation.

9. According to Section 52(1)(h) of the Copyright Act, 1957, the reproduction of a literary, dramatic, musical or artistic work as part of the questions be answered in an examination or in answers to such questions shall not constitute infringement of copyright. Section 52(1)(h) reads as follows:-

"52. Certain acts not to be infringement of copyright--(1) The following acts shall not constitute an infringement of copyright, namely:-

.........

(h) the reproduction of a literary, dramatic, musical or artistic work--

(i)by a teacher or a pupil in the course of instruction; or

(ii)as part of the questions to be answered in an examination; or

(iii)in answers, to such questions;"

10. The literary work in question here is the original work of the plaintiff. It is noteworthy that this exception would be applicable only when material from the original is reproduced as a part of the questions to be answered in an examination or in answers to such questions. This exception would not be applicable because the reproduction is not made as a part of the questions and answers; rather the complete set of questions and answer keys is copied from the original work.

11. It has also been contended by the defendant that the exceptions given in Section 52(a)(i) and Section 52(a)(ii) are also attracted. As already mentioned in para (1) above, the defendant's book cannot be termed as a criticism or a review. Therefore, Section 52(a)(ii) is not applicable.

12. The ex-parte interim injunction dated 10th November, 2004 is accordingly confirmed.