Delhi High Court
Tech Plus Media Private Ltd vs Jyoti Janda & Ors on 29 September, 2014
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 29th September, 2014
+ CS(OS) 119/2010 & IA No.920/2010 (of the plaintiff u/O-39 R1&2
CPC) and IA No.924/2010 (of the plaintiff u/S 79 of the
Information Technology Act, 2000)
TECH PLUS MEDIA PRIVATE LTD ..... Plaintiff
Through: Ms. Maninder Acharya, Sr. Adv. with
Mr. Vikas Sethi & Mr. Yashish
Chandra, Advs.
versus
JYOTI JANDA & ORS ..... Defendants
Through: Mr. Mithilesh Kumar & Mr. Mallika
Arjun, Advs.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. The plaintiff has instituted this suit for permanent injunction
restraining infringement of copyright, passing off, unfair competition and for
ancillary reliefs of rendition of accounts, delivery and damages, pleading:-
(a) that the plaintiff is a leading industry publication house in the
sphere of Information Technology having a print media
publication called IT Price Var and online news portal called
ITVARNEWS.NET dedicated to Information Technology
channels and professionals;
CS(OS) 119/2010 Page 1 of 23
(b) the said publication deals with latest developments, trends and
news in the area of Information Technology including
interviews of industry leaders, analysis of existing and future
trends;
(c) the plaintiff, over a period of time has developed its detailed
confidential electronic databases not just of existing clients and
customers of the plaintiff but also containing their contact
points; the plaintiff has also developed detailed database of
entities which could be targeted for subscription of its
magazine;
(d) the aforesaid databases have been developed over a period of
nine years and constitute confidential data and information of
the plaintiff constituting its trade secrets;
(e) the plaintiff has also developed a unique system of information
processing of Release Orders tailored to the requirements of
publishing information technology journals;
(f) the plaintiff has also a evolved very distinctive, detailed and
comprehensive data, information and databases pertaining to
CS(OS) 119/2010 Page 2 of 23
running of business of information technology publications and
websites in India;
(g) the plaintiff has also created databases pertaining to its website
including details of general comments, dates of such
comments/posts along with details of last post and internet
protocol addresses;
(h) that the aforesaid confidential data and information are the
original literary and artistic works of the plaintiff and are stored
on computers and computer systems and communication
devices of the plaintiff;
(i) the plaintiff has copyright in the said information being the
expression of the plaintiff‟s original and inventive thoughts and
the plaintiff has expended immense original skill, thought
process, imagination in the same;
(j) that the defendant no.1 was employed as Management
Information Systems Executive with the plaintiff on 22 nd
August, 2008, to assist the Director of the plaintiff and to keep
on regularly checking out all online activities and back office
electronic activities of the plaintiff Company and was
CS(OS) 119/2010 Page 3 of 23
interacting with the major clients of the plaintiff and owing to
the nature of her job was given access to all the aforesaid data;
(k) that as per the policy of the plaintiff Company, the defendant
and also all other employees were not to engage themselves
with any other media organization employer and were required
to maintain confidentiality qua all the aforesaid data;
(l) that the defendant no.2 Mr. Rajeev Ranjan Jha was recruited to
the post of Correspondent with the plaintiff w.e.f. 1st April,
2008 and the letter of his employment also prohibited him from
engaging in any other business and required him to maintain
confidentiality qua all copyrights of the plaintiff;
(m) that in the third week of October, 2009 the plaintiff observed a
new website in the name of www.thenewsxpress.com
(impleaded as defendant no.3) with a parallel business model to
that of the plaintiff, for supplying exactly similar kind of
content/services as that supplied by the plaintiff‟s publications;
(n) that the plaintiff in October, 2009 installed surveillance devices
in its premises and which was objected to by the defendants
no.1&2 and who resigned and were relieved on 31 st October,
2009;
(o). that subsequently the plaintiff found the competitive website
www.thenewsxpress.com impleaded as defendant no.3 to have
become very aggressive and selling its services at 50% of the
rate at which the plaintiff was offering similar services and
which led to the plaintiff‟s publication declining;
(p). that the plaintiff on making enquiries learnt that the defendant
no.3 was being run by the defendants no.1&2;
(q). that subsequent investigations revealed that the defendants
no.1&2 had copied the confidential information and databases
constituting the trade secrets of the plaintiff on pen drive and
sent them through e-mail to their personal e-mail IDs;
(r). that the defendants have thus infringed copyright of the
plaintiff;
2. Though the plaint was accompanied with an application for interim
relief but no ex parte relief was granted to the plaintiff and has not been
granted till 11th April, 2013, inspite of the suit having been pending for the
last over three years. The senior counsel for the plaintiff on 11th April, 2013,
stated that she is not pressing for interim relief. IA No.920/2010 is
accordingly dismissed as not pressed.
3. The defendants are contesting the suit by filing the written statement,
pleading:-
(i). that the plaintiff itself has copied the concept of M/s. Kalinga
Digital Media (P) Ltd. who has filed a suit against the plaintiff
and in which the plaintiff who is the defendant in that suit has
been restrained from passing off the Trademark "VAR" along
with the distinctive expression "VALUE ADDED RESELLER"
on any publication and/or from using, selling, offering for sale,
printing or marketing or advertising the magazine or journal
being identical, phonetically or visually, or deceptively
similarly to the said Kalinga Digital Media (P) Ltd.‟s
publication;
(ii). that as of the day of filing of the written statement, there was no
magazine by the name of IT Price Var in the market;
(iii). that the plaintiff was incorporated only in the year 2005 and
thus the plea, of having collected the data over nine years, is
false;
(iv). that the defendant no.1 was working as P.A. to the Director of
the plaintiff and maintaining the field staff‟s daily report and
the defendant no.2 was working as Correspondent, only to
collect the information from the market and to hand it over to
the Publication Division;
(v). the information or databases do not constitute trade secrets and
are openly available in the market;
(vi). that the defendants have not signed any agreement of
confidentiality and else denying the claim of the plaintiff;
(vii) that the defendant no.2 is a MA in Mass Communication and
has established himself as a Journalist and the defendant no.3
www.thenewsxpress.com is no way similar either deceptively
or identical as that of the plaintiff; and,
(viii) that the defendants have purchased the data/Pro email
marketing account from M/s. Swiftpage E 383, Englewood CO
80112 and have also subscribed Software licence from Sage
Software SB Inc.;
4. The plaintiff has filed a replication to the written statement aforesaid
though not denying the filing of the suit against it by Kalinga Digital Media
(P) Ltd. but averring the same to be bad and pleading that IT Price Var is a
registered publication since 2001 and it is only the online publication
"itVARnews" which came into being in 2005 and IT Price Var is a
proprietorship organization of the Director of the plaintiff registered in 2001
and the databases of the plaintiff are unique.
5. The suit, being ripe for framing of issues, was listed on 7th February,
2013 when it was enquired from the counsel for the plaintiff as to what is the
proprietary right of the plaintiff in the databases and how can the same be
said to be the copyright of the plaintiff. Attention of the counsel for the
plaintiff on that date was invited to Percept D' Mark (India) (P). Ltd. Vs.
Zaheer Khan (2006) 4 SCC 227 laying down that in the absence of any
proprietary rights being shown, such competition cannot be restrained. On
the request of the counsel for the plaintiff, the matter was adjourned to 11th
April, 2013.
6. The senior counsel for the plaintiff on 11th April, 2013 argued that the
data of the plaintiff in which copyright is claimed comprises of prospective
customers/clients and their particulars, and attention in this regard is invited
to Section 2(o) of the Copyright Act, 1957. On further enquiry as to how the
plaintiff can be said to have any proprietary rights in the same, it was argued
that the said data has been collected since the year 2001 i.e. since much prior
to the time when the defendants joined the employment of the plaintiff and
the defendants cannot thus have any right in the same. Reliance in this
regard was placed on paras 68 & 72 of Diljeet Titus Vs. Mr. Alfred A.
Adebare 130 (2006) DLT 330 and on paras 30 & 31 of BLB Institute of
Financial Markets Ltd. Vs. Ramakar Jha 154 (2008) DLT 121. It was
further contended that Percept D' Mark (India) (P). Ltd. was not concerned
with the situation as has arisen here. Reliance lastly is placed on Alka Gupta
Vs Narender Kumar Gupta (2010) 10 SCC 141 laying down that Civil
Suits have to be proceeded with, in according with the provisions of CPC
and not on the whims of the Court and to be decided only after framing of
issues and trial, permitting parties to lead evidence.
7. Per contra, the counsel for the defendants has drawn attention to
Sections 2(d) & 17 of the Copyright Act and contended that the plaint
nowhere discloses as to who is the author of the alleged copyright. It is
contended that the plaintiff, which is a juristic person, cannot be the owner
of the copyright in the databases alleged. It is argued that the defendants as
Journalists would have copyright in what is published by them and the
plaintiff has not pleaded any agreement to the contrary; that though the
plaintiff had also filed a complaint against the defendants, but after
investigation, no FIR was registered.
8. The senior counsel for the plaintiff in rejoinder argued that summons
in a suit are issued for framing of issues and thus issues have to be
necessarily framed and the suit put to trial and this Court at this stage, even
prior to the framing of issues cannot conduct the enquiry as is being done.
9. I repeatedly asked the senior counsel for the plaintiff as to what data
of the plaintiff has been taken away by the defendants in as much as the use
of the word „database‟ without specifying as to what is in that database is not
found to be sufficient. The senior counsel for the plaintiff first contended
that the said data comprises of list of consumers of the plaintiff with
particulars of their contact points. However it was enquired as to who are the
consumers in as much as the plaintiff claims to be only a publisher of a news
magazine which is distributed free of cost (the cost thereof is pleaded at
Rs.15/- but the senior counsel on instructions stated that the magazine is
mailed free of costs to the persons identified as interested therein) and is not
in the business of selling any goods.
10. The senior counsel for the plaintiff then contended that depending
upon the circulation and publication of the news magazine, advertisers of
various products advertise in the magazine published/news portal of the
plaintiff.
11. It is however enquired as to what can be the copyright in the
particulars of the said advertisers, who would be evident from the
advertisements on the news portal and in the newsmagazine of the plaintiff.
12. The senior counsel for the plaintiff then contended that database
consist of visitors to the website/news portal of the plaintiff and to whom the
news magazine is mailed.
13. It was enquired whether the news magazines of the plaintiff and the
defendants are registered with the Registrar of Newspapers for India and any
returns indicating the circulations of the respective magazines are filed.
14. Neither counsels could respond to the same and stated that they will
obtain instructions.
15. The senior counsel for the plaintiff then contended that the database
qua which the suit is filed and which the defendants have taken away is of
the visitors of the website/news portal of the plaintiff.
16. However on a perusal of the plaint, I do not find the same to be
pleaded. The plaintiff, save for repeatedly referring to databases has not
specified as to what those databases pertain to and what is the contribution
of the plaintiff thereto. From what has been argued, the said databases are
nothing but a collection of the e-mail addresses of the visitors to the
website/news portal of the plaintiff. The plaintiff cannot be said to be the
author or composer or having any contribution in the same. On the contrary
the pleadings in para 31 are of the publication of the news magazine of the
plaintiff having declined and which is inconsistent with the argument raised,
of the news magazine being mailed free of costs to persons interested in the
same.
17. The plaintiff, in para 10 of the plaint, has pleaded that it has evolved
distinctive, detailed and comprehensive data information and databases
pertaining to running the business of information technology publication and
website in India and has created unique databases pertaining to the website
including details of general comments, the dates of making such
comments/posts along with details of last post and internet protocol
addresses.
18. I repeatedly enquired from the senior counsel for the plaintiff as to
how, in a collection of the names and addresses of the visitors to the news
portal of the plaintiff or their comments, the plaintiff can claim copyright
within the meaning of Section 14 of the Act and how the same can be called
literary, dramatic or musical work or even a computer programme. It is not
the plea of the plaintiff that it has got written from anyone a computer
programme for maintaining such contents or for shifting the same into
various categories etc.
19. No merit is found in the contention of the plaintiff that because
summons are issued in a suit, issues are necessarily to be framed. Issues are
to be framed only on material propositions of fact or law affirmed by one
party and denied by other and material proposition are those proposition of
law or fact which a plaintiff must allege in order to show a right to sue or a
defendant must allege in order to constitute his defence. Had the plaintiff
pleaded anything which would show vesting of a copyright in a plaintiff,
would an issue have arisen. I have in judgment dated 7th November, 2012 in
CS(OS) No.2695/2011 titled Satya Gupta Vs. Guneet Singh dealt in detail
in this regard and need is thus not felt to reiterate the same.
20. If the Court, on a reading of the plaint seeking injunction and ancillary
reliefs on the basis of a copyright finds no sufficient pleading of the
existence of a copyright in favour of the plaintiff, I am not willing to accept
that the matter still has to go through the rigmarole of trial. It is the settled
position in law that evidence beyond pleadings cannot be led. The plaintiff is
a juristic person and is incapable of being the author of any work in which
copyright may exist. However the plaintiff can be the owner of a copyright
under an agreement with the author of the said work. For the plaintiff to
maintain the present suit, it is incumbent upon the plaintiff to disclose the
said work and the author thereof and the agreement under which the author
has made the plaintiff the owner of the copyright in the said work. The
plaintiff has not done so. I cannot read the judgment of the Supreme Court in
Alka Gupta (supra) also to be laying down that merely because a suit has
been filed, it has to go through the entire gamut of trial. The Supreme Court
in Alka Gupta (the judgment of dismissal of suit in which case also was of
the undersigned and appeal whereagainst had been dismissed by the
Division Bench of this Court) was concerned with the questions of fact
having been decided on the basis of the statement recorded under Order X of
the Code of Civil Procedure and not with a case with which we are faced
herein, of the material facts required to be pleaded in an action for
infringement of copyright to show a right to sue, lacking in the plaint.
21. Judicial notice can be taken of the practice which has evolved, of
employers filing suits as the present one against the employees quitting
employment. The judicial stream is today inundated with such suits. Judicial
notice can also be taken of the fact that such suits are often vehemently
pressed only till the stage of interim injunction and rarely succeed after trial.
Today when the entire judicial system reels under the burden of arrears, and
when it is found that suits are being filed not to vindicate any violation of
rights but to teach a lesson to an employee wanting to move to greener
pastures and/or to curb competition, the Courts would be doing a disservice
if do not take cognizance of such developments in the passage of time and
turns a blind eye thereto, mechanically frame issues and put the suit to trial
(See Kawal Sachdeva v. Madhu Bala Rana MANU/DE/1050/2013). The
principle behind Section 27 of the Indian Contract Act, 1872 making
agreements in restraint of trade void, is to prevent anti-competitive practices.
With the same intent the legislation in the form of Competition Act, 2002
has been brought. When the pleas of copyright are found to be non-existent
and the intent and motive in institution of the suit is to curb and prevent
competition, the Courts should not hesitate in curbing such an action, which
is contrary to the public policy of India, at the threshold. In my opinion,
allowing such suits to go through the gamut of trial itself has tendency to
curb competition, irrespective of the outcome of the suits.
22. A Single Judge of this Court in American Express Bank Ltd. Vs.
Priya Puri MANU/DE/2106/2006, dealing with an application for interim
relief in a suit for injunction against an ex-employee, restraining her from
using or disclosing any information and trade secrets relating to the business
and operations of the plaintiff Bank and from breaching the confidentiality
term as per letter of appointment / code of conduct including customers
privacy principles / policies held:
(i) that the plaintiff Bank in the garb of confidentiality was trying
to contend that once the customer of plaintiff, always a
customer of plaintiff; a competitor Bank cannot be restrained
from dealing with the customers of the plaintiff Bank on the
ground that the bank maintains written record of its customers
and their financial portfolios which has been acquired by the
competitor Bank and so the competitor bank should be
restrained even to contact those customers; a competitor Bank
even after acquiring information that a particular person is
banking with the plaintiff Bank, is free to approach that person
and canvass about themselves; it is for the customers to decide
with which Bank to bank and a Bank cannot arrogate to itself
the rights to deal with a customer exclusively on the ground that
it has created a data base of its customers and their financial
portfolios; no Bank should be allowed to create monopolies on
the ground that they have developed exhaustive data of their
clients/customers;
(ii) creating a database of the clients/customers and then claiming
confidentiality about it, will not permit such Bank to create a
monopoly about such customers that such customers cannot be
approached even;
(iii) the details of customers are not trade secrets nor they are the
property.
23. I must also refer to Burlington Home Shopping Pvt. Ltd. Vs. Rajnish
Chibber 61 (1996) DLT 6 in which a Single Judge of this Court, dealing
again with an application for interim relief in a suit by a mail order service
company against its employee for injunction restraining breach of copyright
and confidentiality held that compilation of addresses developed by devoting
time, money labour and skill though the sources may be commonly situated,
amounts to a „literary work‟ wherein the author has a copyright. Finding
that the data base available with the defendant therein was substantially a
copy of the data base available with the plaintiff therein and compiled by the
plaintiff interim injunction was granted. Similarly another Single Judge of
this Court in Diljeet Titus (supra) held in the context of an advocate / law
firm that a list containing details about the particular persons such law firm
is handling and the nature of work or the contact person in the client‟s
company and specially designed by an advocate of his Court matters,
copyright exists therein. It was also held that the Court must step in Court
must step in to restrain a breach of confidence independent of any right
under law. I may however further notice that both the said judgments are of
a date prior to the pronouncement of the Supreme Court in Eastern Book
Company Vs. D.B. Modak (2008) 1 SCC 1 laying down that to claim
copyright in a compilation, the author must produce the material with
exercise of his skill and judgment which may not be creativity in the sense
that it is novel or non-obvious but at the same time it is not a product of
merely labour and capital. It was however clarified that the exercise of skill
and judgment required to produce the work must not be so trivial that it
could be characterized as a purely mec hanical exercise.
Accordingly, it was held that copy edited judgments would not
satisfy the copyright merely by establishing amount of skill,
labour and capital put in the inputs of the copy edited judgments as the
original or innovative thoughts for the creativity are completely excluded.
24. Post the aforesaid judgment of the Supreme Court, a Single Judge of
this Court in Emergent Genetics India Pvt. Ltd. Vs. Shailendra Shivam
2011 (47) PTC 494 again dealing with an application for interim relief held:
(a) sequences obtained from nature (e.g., the sequence for a gene)
cannot per se, be original. The microbiologist or scientist
involved in gene sequencing discovers facts; there is no
independent creation of a work, essential for matching the
originality requirement; such a scientist merely copies from
nature-genetic sequence that contains codes for proteins;
therefore there is no minimum creativity;
(b) there is no copyright protection for any idea; that when the use
of an idea or procedure requires copying of the plaintiff‟s
expression, there is no copyright infringement;
(c) that since there could be no copyright of ideas, the merged
expression / idea is incapable of copyright; granting copyright
protection of the sole or limited way of expression of an idea,
would mean no one can practice the idea or procedure
expressed without being guilty of copyright infringement;
(d) pleadings of the nature and quality of information which is
confidential are crucial and in the absence thereof there is no
question of confidentiality;
(e) granting injunctions under the umbrella of trade secret or
confidential information carry the danger of imperiling the right
to occupation guaranteed by Article 19(1)(g) of the Constitution
and right to livelihood held to be an intrinsic part of Article 21.
25. The same learned Judge reiterated the said position in Dr. Reckeweg
& Co. GMBH Vs. Adven Biotech Private Ltd. 2008 (38) PTC 308 (Del)
dealing with the issue of copyright in relation to the nomenclature of drugs,
the listing of the medicines in a particular fashion, the description and the
curative effect compilation in a brochure. Finding the plaintiff to have failed
to demonstrate how they had employed any skill, judgment and labour in
describing the curative elements, let alone any creativity and in the absence
of any averment as to the uniqueness of such description or intellectual
creativity, it was prima facie held that no copyright can subsist therein. It
was further held that a catalogue / brochure being a derivative work being a
collection or sequencing of already existing information, the standard of
creativity required to qualify as a work in which copyright subsists is higher
than the standard required in cases of primary works and finding the
plaintiffs to have not specifically averred as to the manner in which the
sequencing was done and the technique or criteria employed to place the
medicines in that particular sequence, the application for interim relief was
dismissed observing that the document in which copyright was claimed was
merely a compilation.
26. The same learned Single Judge sitting for the Division Bench of this
Court in Akuate Internet Services Pvt. Ltd. Vs. Star India Pvt. Ltd.
MANU/DE/2768/2013 held that the Copyright Act having granted
protection only qua material in which copyright could be held, injunction on
the ground of the broadcast rights having been violated could not be granted.
It is however learnt that appeal against the said judgment is pending before
the Supreme Court. It was also held that creating property (or quasi-
property) rights in information stands to upset the statutory balance carefully
created by the legislature through the Copyright Act and no injunction in the
absence of copyright on equitable grounds can be granted. It was yet further
held that the doctrine of unfair competition prohibits the misappropriation of
match information and would amount to holding that misappropriation under
the common law can supplant the Copyright Act.
27. Order VII Rule 11 of the CPC enables the Court to, when finds the
plaint to be not disclosing any cause of action or when finds the suits from
the statements in the plaint to be barred by any law, to reject the plaint at the
threshold. Similarly Order XV of the CPC also empowers the Court to, when
finds the parties to be not at issue on any question of law or facts, at once
pronounce judgment. Order XV in my opinion applies equally to the
plaintiff as to the judgment. The judgment referred to herein is not to be
necessarily against the defendants and can be against the plaintiff as well.
The Court, even if summons ought not to have been issued in the suit and
have been issued, at the stage of framing of issues finds the plaintiff to be
not pleading the material propositions of law essential for succeeding in the
suit, is empowered to pronounce judgment against the plaintiff.
28. During the hearing it was repeatedly asked to the senior counsel for
the plaintiffs as to what purpose would be served by granting an opportunity
to the plaintiff to lead evidence as was repeatedly argued. No answer was
forthcoming.
29. Before parting, I must record that after hearing arguments on 11 th
April, 2013, this judgment was intended to be dictated and pronounced in
chamber on the same date. The judgment though was dictated on the same
day but remained to be corrected and went on the back burner and has
accordingly been listed for pronouncement. I must further record that
neither party mentioned the matter in the last nearly one and a half year.
30. I therefore find the plaintiff to have not pleaded the material
propositions of fact essential to succeed in an action for infringement of
copyright and thus pronounce judgment forthwith against the plaintiff
dismissing the suit. However in the facts, no order as to costs.
31. Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 29, 2014
„pp/gsr‟
