Syndicate Of The Press Of The ... vs Iqbal Singh And Anr.
2006 Latest Caselaw 355 Del

JUDGMENT

Anil Kumar, J.

1. This judgment shall dispose of plaintiffs' suit for permanent injunction restraining infringement of copyright, rendition of accounts of profits and mandatory injunction seeking direction to the defendant to deliver all duplicating equipment and other infringing material to the plaintiff.

2. Brief facts to comprehend the disputes are that plaintiff is a Syndicate of Press of University of Cambridge on behalf of Chancellor, Masters and Scholars of the University of Cambridge trading as Cambridge University Press. Mr. Prince Chandel is the constituted attorney of plaintiff No. 1 and he is alleged to be authorized through a power of attorney to sign and verify the plaint and institute the suit on behalf of plaintiff No. 1 whereas plaintiff No. 2 is a private limited company incorporated in India under the Companies Act, 1956 and Mr. Manas Saikia is the Managing Director of the plaintiff No. 2 who is also duly authorized to sign, verify the plaint and institute the suit on behalf of plaintiff No. 2.

3. The plaintiffs contend that plaintiff No. 1 is the printing and publishing house of the University of Cambridge and prints educational books, journals, examination papers etc for people around the world. The press of the plaintiff is one of the oldest press and publishing house and its history dates back to the year 1534 when Henry VIII founded it on a Royal Charter granted to the University and the Press has been operating continuously since then. The press has printed books on wide range of academic disciplines of some very leading scholars.

4. It was contended that the press of the plaintiff currently has over 24,000 authors in 108 countries including over 8000 authors in the United States of America, over 1300 in Australia and about 100 each in other countries. The press of the plaintiff is pioneer in the field of school books segment which began with the Pitt Press series in 1874 and has continued in this century to be associated with curriculum reform movements.

5. The plaintiffs averred that they developed one of the highest quality English language teaching program including major courses in British English and have best selling international textbooks like English grammar in use by Martin Hewings, English Vocabulary in use and advance grammar in use by Martin Hewings. The author Dr. Martin Hewings is contended to be at present a senior lecturer in English for International Students Unit of the University of Birmingham who had taught English as a foreign language in Sweden, Italy, Malaysia and has lectured on Applied Linguistics in Germany, Zimbabwe and Spain.

6. Plaintiffs stated that the first edition of Advance grammar in use by Martin Hewings was published by the plaintiffs by virtue of memorandum of agreement dated 19.8.1994 whereby Dr.Hewings assigned to the plaintiff full copyright in the subject work throughout the world. The memorandum of agreement between the press of the plaintiff no. 1 and the author Dr.Martin Hewings was revised by memorandum of agreement dated 13.6.2002 whereby full copyrights in the second edition of the subject work was assigned to the press of the plaintiff. It was intended for advanced students of English language and is written mainly as a self study book with the inbuilt features, so that it could also be used in class with the teacher.

7. The plaintiffs asserted that the subject work is uniquely designed by the author to make it user friendly to help efficient learning. It was asserted that the subject work is not only prescribed and recommended in the United Kingdom and other English speaking countries but also in a number of countries where the English language is rapidly growing as a medium of communication. One of such places was asserted to be Guru Nanak Dev University, Amritsar in the State of Punjab, India.

8. The plaintiff contended that considering economic parameters of the Indian students, plaintiff No. 1 entered into reprint and publishing agreement with plaintiff No. 2 to make available special low price editions of the subject work for sale in the State of Punjab. The special edition was published by plaintiff No. 2 under license from plaintiff No. 1, which carried a printed prices of Rs. 95/- and after deducting the trade discount, the special edition was being sold to the students in the State of Punjab at a price ranging between Rs. 75/- to Rs. 80/-. However, the said work is available to the students in rest of India for Rs. 125/- and the printed price of the same in Western countries is US$ 29 for each copy.

9. Plaintiff No. 2 made successful the special low price editions with the objective to make special range of books at a price more accessible to Indian readers. Plaintiff No. 2 has published various other books, the details of which were given in para 18 of the plaint and it was asserted that plaintiff No. 2 is the exclusive licensee of plaintiff No. 1 in India.

10. The defendant No. 1 are alleged to have infringed the plaintiffs No. 1 copyright in the work 'Advance English Grammar by Martin Hweings' who are engaged in publishing, selling and distributing a range of school books mainly in the form of guide books, having keys for the students who need to mug-up answers just before taking up the examination. The plaintiff stated that the defendants have published the guidebooks for the academic year 2005-2006, three books titled UNIMAX General English, Grammar and Composition, Compulsory English for B.A./B.Sc./B.Com./B.Sc. Home Science, Part-I (Guru Nanak Dev University); UNIMAX General English, Grammar and Composition, Compulsory English for B.A./B.Sc./B.Com./B.Sc. Home Science, Part-II (Guru Nanak Dev University) and UNIMAX General English, Grammar and Composition, Compulsory English for B.A./B.Sc./B.Com./B.Sc. Home Science, Part-III (Guru Nanak Dev University) based on the revised syllabus of the Guru Nanak Dev University and copying the subject work of the plaintiff and infringing the copyright of the plaintiff no. 1. It was asserted that the defendants have illegally, without any authorization, brazenly copied, reproduced and incorporated verbatim literary text from plaintiffs' subject work including the complete set of exercises and the answer keys to the said exercises from unit 1 to 120. The plaintiffs' work was prescribed by Guru Nanak Dev University and the Advance English Grammar by Martin Hewings comprising of 120 units had been divided by the said University in the syllabus for each year examination.

11. The plaintiffs gave the details of illegal and un-authorized re- production from plaintiff's subject work in para 22 of the plaint. It was contended that the author of the subject work, Dr. Martin Hewings, had employed great effort, research, ingenuity, time, expression and invested in establishing and designing the subject book so that it becomes most effective, efficient and user friendly tool for students pursuing advance study and understanding English language. Knowing the important and imperative need of the plaintiffs' subject work to the students, the defendants in complete violation of plaintiffs' copyright in the subject work and in order to make illegal profits, infringed the copyrights of the plaintiff no. 1 by publishing the these three infringing books which came to the notice of the plaintiffs in the month of August 2005 when the sales representatives of plaintiffs found most of the retailers were not only selling plaintiffs' subject work but promoting the defendants' infringing three books.

12. The plaintiffs contended that defendants know the plaintiffs' reputation in publishing business and they have copied the specific and important portion in the plaintiffs subject work and thus defendants have knowingly indulged in reproduction from plaintiffs subject work with the clear view of making illegal profits and ride on the hard work of the plaintiffs' author.

13. In the circumstances, plaintiffs claimed that besides the damage which they are suffering, the students and their families and society at large will also bear negative consequences of such guidebooks which are published by the defendants infringing the copyright of the plaintiff which appears to be a short cut key aimed to help the students to mug up answer to the expected questions in exams which is not only detrimental to the students' interest but will cause and is causing immense harm to the quality of education and making a mockery of existing education system as a whole. Plaintiffs stated that they have been vigilant in protecting their copyrights and are members of the Publishing Industries Collective Anti-Piracy Campaign which is conducted to counter the menace of piracy. The plaintiffs gave the details of some of the cases filed against other persons who violated the copyrights of the plaintiffs. It was asserted that the plaintiffs have suffered losses which run into millions of rupees, however, plaintiff estimated their losses for the particular book aggregating to well over Rs. 20.00 lakh.

14. In the circumstances, plaintiff claimed that a perpetual injunction be passed restraining the defendants from publishing, reproducing, selling, distributing, offering for sale their books titled UNIMAX General English, Grammar and Composition, Compulsory English for B.A./B.Sc./B.Com./B.Sc. Home Science, Part-I (Guru Nanak Dev University); UNIMAX General English, Grammar and Composition, Compulsory English for B.A./B.Sc./B.Com./B.Sc. Home Science, Part-II (Guru Nanak Dev University) and UNIMAX General English, Grammar and Composition, Compulsory English for B.A./B.Sc./B.Com./B.Sc. Home Science, Part- III (Guru Nanak Dev University) which contain illegal and un-authorized reproduction of the literary text comprising in the exercises of plaintiff publication titled 'Advance English Grammar by Martin Hewings'. Plaintiff also claimed damages of Rs. 20.00 lakh and also prayed for delivery-up to the plaintiff all duplicating equipment and other 'plates' as defined in Section 2(t) of the Act.

15. On filing the suit, on an application for interim order, an interim order dated 7th September, 2005 was passed whereby the defendants were restrained from utilizing/incorporating the verbatim text taken from the plaintiffs' publication 'Advance English Grammar by Martin Hewings' in their publication. The defendants were served with the summons of the suit and notice of the application, however, no one appeared on their behalf and consequently, they were proceeded ex parte by order dated 17th November, 2005. The plaintiffs, thereafter, filed their evidence on affidavit and also proved their documents.

16. On behalf of plaintiffs, evidence on affidavit was filed by Mr.Prince Chandel, constituted attorney of plaintiff no. 1. The deposition of the plaintiffs' witness in the form of an affidavit was exhibited as Ex.PW1/A. The witness deposed about the power of attorney executed in his favor and proved the same which was exhibited as Ex.PW1/1. The witness deposed in detail about the plaintiff No. 1 being a very old printing and publishing house. Print outs from the websites of the plaintiff were proved as Ex.PW1/2. The deponent deposed that plaintiff No. 1 has established the press as World Publisher and it has over 24000 authors in 108 countries. It was deposed that the school book publishing begun with the Pits press series in 1874. A copy of 'Advance Grammar in Use by Martin Hewings' was proved and exhibited as PW1/4. It was stated that the author, Dr. Martin Hewings, is a senior lecturer in English for International Students' Unit of the University of Birmingham. The deponent also proved a catalogue listing some of the publications for English language of the plaintiff No. 1 which was proved and exhibited as PW1/3. The memorandum of agreement dated 19th August, 1994 executed by the author in favor of plaintiff No. 1 was proved and exhibited as PW1/5 and the assignment agreement by plaintiff no. 1 with plaintiff No. 2 was proved and exhibited as PW1/6. The witness deposed about the book and the price at which it was sold after trade discount and the structure of the book and its division into 120 units.

17. The witness deposed that the plaintiff came to know about violation of infringement of the copyright of his book in August 2005 which was printed as published by the defendants. It was stated that the defendants have illegally usurped and misappropriate the efforts, management, skill and the investment made by the plaintiff in brining the subject work to the students of Guru Nanak Dev University by creating special arrangements for its low price edition. The witness of the plaintiff, its constituted attorney also proved orders passed in another case of infringement and exhibited the same as PW/9.

18. The pleas and the averments made by the plaintiff have not been rebutted as no written statement has been filed. The deposition of the constituted attorney of the plaintiffs has also remained un-rebutted as no witness appeared on behalf of defendants to rebut the facts especially about the infringing of copyright of the plaintiff no. 1 and defendants having no license to print the books and copying of book of the plaintiffs by the defendants.

19. I have heard the learned counsel for the plaintiffs and have also perused the book of the plaintiffs and the books published by the defendants. From comparison of some of the parts, it is apparent that the defendants have picked up the verbatim material from the book of the plaintiffs in their three publications. On behalf of defendants nothing has been produced to show that they have any authorization to copy the contents of the book of the plaintiffs. The deposition on behalf of the plaintiffs have remained un-rebutted that the author had put in great effort and labor and he had incurred considerable expense for the book 'Advance English Grammar by Martin Hewings' establish the copyrights of the author of the books which rights in the work were given by the author to the plaintiff no. 1 for a considerable price and plaintiff No. 1 had appointed Plaintiff No. 2 as his assignee and these facts have also been proved by the plaintiffs. From the evidence produced by the plaintiffs, it can be inferred that the plaintiff has been able to prove the facts which would entitle them for the relief of injunction against the defendants.

20. In the circumstances, the plaintiffs have been able to establish that the plaintiff No. 1 has a copyright in the said book and the copyright to publish the book has been assigned to plaintiff No. 2 and the defendants who are publishing three books, namely, UNIMAX General English, Grammar and Composition, Compulsory English for B.A./B.Sc./B.Com./B.Sc. Home Science, Part-I (Guru Nanak Dev University); UNIMAX General English, Grammar and Composition, Compulsory English for B.A./B.Sc./B.Com./B.Sc. Home Science, Part-II (Guru Nanak Dev University) and UNIMAX General English, Grammar and Composition, Compulsory English for B.A./B.Sc./B.Com./B.Sc. Home Science, Part-III (Guru Nanak Dev University) have copied the contents of the books of the plaintiffs and nothing has been shown by the defendants that they have had any authorization from the author or plaintiff No. 1 or plaintiff No. 2 to copy any portion of the book or in the facts and circumstances, they are entitled to copy or that the portion in their books are not the copies of the material of the plaintiffs' book. The defendants are unable to establish that they have any right to copy the material of the plaintiff's book and in the circumstances it has been established that by printing the contents of the plaintiffs' book, the defendants have infringed the copyright of the plaintiff. 21. Therefore considering the facts and circumstances, it is apparent that the plaintiffs have a good prima facie case and in case the infringement of plaintiffs' copyright shall continue, it will cause irreparable damage and loss not only to the plaintiffs but it shall also be detrimental for the education system for which the book of the plaintiff is prescribed. In case, the defendants are not restrained from continuing to infringe the copyright of the plaintiffs, inconvenience caused to the students and the plaintiffs also would be much more and in the facts and circumstances the balance of convenience is also in favor of plaintiffs and against the defendants. The plaintiffs thus have been able to make out a case for grant of perpetual injunction in their favor and against the defendants regarding their three books infringing the copyright of the plaintiffs.

22. The plaintiffs, however, have not been able to prove that they have suffered a loss of Rs. 20.00 lakh or any other amount as damages. The deponent, the constituted attorney of the plaintiffs did not depose anything about the damages suffered by the plaintiffs. In the circumstances, the plaintiffs are unable to prove that they have suffered any damages and that they shall be entitled for recovery of any amount as damages from the defendants. The plaintiffs are also unable to make out a case and prove that they are entitled for rendition of accounts from the defendants. The deposition of the plaintiffs is completely silent about the liability of the defendants to render the accounts and the period for which the defendants are liable to render the accounts. Therefore the plaintiffs are not entitled for render of accounts of profits from the defendants.

23. Therefore, considering the facts and in totality of circumstances, a decree of perpetual injunction is passed in favor of plaintiffs and against the defendants restraining the defendants from printing. Publishing, reproducing and offering for sale three books titled UNIMAX General English, Grammar and Composition, Compulsory English for B.A./B.Sc./B.Com./B.Sc. Home Science, Part-I (Guru Nanak Dev University); UNIMAX General English, Grammar and Composition, Compulsory English for B.A./B.Sc./B.Com./B.Sc. Home Science, Part-II (Guru Nanak Dev University) and UNIMAX General English, Grammar and Composition, Compulsory English for B.A./B.Sc./B.Com./B.Sc. Home Science, Part-III (Guru Nanak Dev University). Cost of the suit is also awarded to the Plaintiffs against the defendants. Decree sheet be accordingly prepared.