Delhi High Court
Ignou vs Dominant Publishers And ... on 14 May, 2019
$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 14th May, 2019
+ CS (COMM) 219/2016
IGNOU ..... Plaintiff
Through: Mr. Aly Mirza and Mr. Rishabh Pant,
Advocates (M: 9899720944).
versus
DOMINANT PUBLISHERS AND DISTRIBUTORS ..... Defendants
Through: Mr. Vikram Baweja, Advocate for D-
1 (M: 9811107664).
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. The Plaintiff - IGNOU has filed the present suit for permanent
injunction restraining infringement of copyright, and for rendition of
accounts. The case of the Plaintiff is that it provides distance education to
lakhs of students across the country in several courses. One of the courses
conducted by IGNOU is a Post Graduate diploma course in Journalism and
Mass Communication („PGJMC‟). The course material for this course is
prepared under its aegis and directions. One of the course materials is titled
as „New Communication Technologies‟ being Course-I, Unit No.4 of Block
No.3‟ of PGJMC. The author of the said course material is Shri V. Rama
Rao. The said course material is a literary work.
2. It came to the notice of the Plaintiff that Defendant No. 1- Dominant
Publishers and Distributors had published a book titled „Modern
Communication Technologies‟ under the authorship of Defendant No. 2 -
Mr. Y.K. D‟Souza, and that several pages of the Plaintiff‟s course material
had been reproduced at pages 74 to 90 and pages 207 to 222 of the
Defendants‟ book. For the sake of brevity, the course material of the
Plaintiff is referred to as „the original work‟ and the Defendants‟ work is
referred to as „the impugned work‟.
3. The Plaintiff, thus, filed the present suit seeking an injunction
restraining the Defendants, as also rendition of accounts. The reliefs sought
in the suit are as under:
"(1) A decree for permanent prohibitory injunction
restraining the Defendants from in any manner
selling/circulating/distributing the infringed book titled
"Modern Communication Technologies" by Y. K.
D'souza and from in any manner further reproducing
the said copyright work. And appointment of a
Commissioner for seizing the infringing copies of the
work;
(2) An order requiring the Defendants to render
accounts for profits made by them from the sale of the
infringing book
(3) Grant Costs."
4. The suit was listed on 28th October, 2003 when an interim injunction
was granted by this Court restraining the Defendants from circulating and
distributing the infringing work. The operative portion of the said order is
as under:
"Accordingly, the defendants are restrained from
further selling, circulating, distributing, in any
manner, infringing copies of the book titled 'Modern
Communication Technologies' by Y. K. D'souza in any
manner further reproducing the said instruction
material in which plaintiff has copyright."
5. The Defendant No.1 filed its written statement and one of the
defences taken was that the impugned work was "based on the fundamentals
of electronics, which is a part of physics/science." It was further pleaded by
Defendant No.1 that it was only a publisher and not the author of the book in
question. Defendant No.1 also claimed that the contents, which the Plaintiff
complained of, are also contained in various other books.
6. Defendant No.2 did not appear in the matter. On 14th May, 2004, the
Court noticed that Defendant No.2 has refused to accept the summons.
Accordingly, the suit was directed to proceed ex-parte qua Defendant No.2.
The following issues were framed on 19th July, 2005.
"I.. Whether the plaint discloses the cause of action
against and is maintainable against defendant no.1?
OPP
2. Whether the Plaintiff' is the owner of the copyright
'New Communications Technologies"? OPP
3. Whether the Defendants' work titled "Modern
Communication Technologies" is not a substantial and
material copy of the Plaintiffs work titled "New
Communications Technologies"? OPD-1
4. Whether the defendants have infringed Plaintiffs
copyright in "New Communication Technologies"?
OPP
5. Relief"
7. On behalf of the Plaintiff, PW-1, Professor Shri V. Rama Rao, the
author, and PW-2, Shri Ansar Husain, Deputy Registrar (Legal) have
testified. On behalf of the Defendants, DW-1, Shri Amardeep Singh Saini
tendered his evidence.
8. PW-1 deposed that he was employed by IGNOU and that he had
authored the original work. He further stated that the Defendants‟ work
contains various verbatim extracts of the Plaintiff‟s work and that IGNOU is
entitled to an injunction. In cross examination, PW-1 stated that he was not
aware if any other authors had copied the Plaintiff‟s course material, as
mentioned in the written statement. He specifically deposed as under:
"Presently I am retired from IGNOU. I had personally
seen the book published by defendant no. 1 and after
going through the contents of book in question I came
to know the contents therein have been copied from our
material titled as "New Communication Technologies".
I do not remember as to when I came to know about the
copying of our work. It is wrong to suggest that I have
no personal knowledge of the case or that affidavit
filed by me is false and incorrect or no work has been
copied by defendants or that there was any
infringement of copy right whatsoever or that I am
deposing falsely."
9. PW-2 stated that he did not have any knowledge as to whether the
Plaintiff had taken action against any of the third party publishers, which
were mentioned in the written statement.
10. DW-1 in his cross examination stated as under:
"The main clients of defendant no.1 since 1999 are
D.K. Publishers and Distributers Pvt. Ltd. and U.B.S.
Publishers and Distributors. The annual turnover of
the company at present is around Rs. 80 lacs. The
annual turnover of defendant no. 1 in the year 2003
might have been around Rs. 30 lacs. I may be able to
produce the balance sheet for the year 2003 if the same
are available with me. I am also doing the business of
publishing the works of individual authors. There are
written agreements with the individual authors. I am
not having the written agreement with Sh. Y. K.
D'souza for publishing the infringing work title
"Modern Communication Technologies". (Vol.) This
work was obtained by us through Freelance Authors
Group Advertising Agency. Defendant no.1 had no
written agreement with Freelance Authors Group
Advertising Agency. (Vol.) Defendant no.1 had dispute
with Freelance Authors Group Advertising Agency
when it came to know that the agency was giving the
same work to different publishers earlier also and later
also. I might have given more than Rs.50,000/- as
advance to Freelance Authors Group Advertising
Agency. I do not remember if this payment was given
through cheque or cash. I might be having the records
available with me showing the payment and the mode
of payment to Freelance Authors Group Advertising
Agency. I am not made any payment to Sh. Y.K.
D'souza as the payment was made to the Freelance
Authors Group Advertising Agency. The published
infringing book was supplied to the distributors on sale
and return basis. The infringed book was supplied to
the distributor on 45% to 50% discount on the printed
price. The approximate printed price of the book was
Rs.450/- or Rs. 475/-. I cannot tell the number of the
books supplied to the distributors as the books are also
returned by the distributors if they are not sold. (Vol.)
We used to print 200 to 300 copies of the book in one
lot. I had printed only one lot of the books. The record
showing that number of books published and
distributed and the number of books returned might be
available with defendant no.1."
11. DW-1 denied the suggestion that Mr. Y. K. D‟Souza is a fictitious
name. He confirmed that he had never met Mr. Y. K. D‟Souza. He further
submitted that he had only published one lot of the books, which would be
200 to 300 copies. He further confirmed that the approximate printed price
of book was Rs.450/- to Rs.475/-.
12. Mr. Aly Mirza, ld. counsel for the Plaintiff submits that the Defendant
No.1, being the proprietor of the publishing house, ought to have known and
met the author. The fact, that he did not even know the author and denied
having met the author, shows that there is no author such as Mr. Y. K.
D‟Souza. He further submits that Defendant No.1 is having a successful
publishing business, and hence the University should be compensated.
13. On the other hand, ld. counsel for Defendant No.1 submits that
Defendant No.1 has stopped the use of the contents complained of and does
not intend to use the same in future. Since only one lot of books was
printed, with very low profit margin, it is submitted that some reasonable
costs may be imposed upon the Defendants.
14. After going through the original work and the impugned work, it is
clear that there has been verbatim copying from the original work. The
following table would illustrate the same.
S. Extract from the Page Extract from the Page
No. Plaintiff's book no. Defendants' book no.
1. "As the name itself 59 "As the name itself 74
implies, new implies, new
communication communication
technologies, are technologies, are
those which are of those which are of
more recent origin. more recent origin.
Interactivity is their Interactivity is their
distinguishing distinguishing feature.
feature. For the For the purpose of this
purpose of this unit, unit, new
new communication communication
technologies can also technologies can also
be understood as be understood as
those which are those which are
capable of a much capable of a much
higher degree of higher degree of
interactivity than that interactivity than that
offered by traditional offered by traditional
communication communication
technologies. technologies.
Writing, printing and Writing, printing and
electronic media like electronic media like
radio and television radio and television
are examples of are examples of
traditional traditional
technologies which technologies which
are essentially one- are essentially one-
way in nature. way in nature.
Therefore, their Therefore, their
interactive interactive capabilities
capabilities are very are very limited."
limited."
Teleconferencing is teleconferencing is an
an accepted form of accept form of
technology in technology in advance
advanced countries, countries, especially
especially for for business
business communication. It is
communications. It is only a mater of time
only a matter of time before this technology
before this becomes popular in
technology becomes countries such as ours
popular in countries because the necessary
such as ours, because infrastructure like
the necessary telephone links and
infrastructure like satellite are already
telephone links and available.
satellite are already
available.
3. "From the above "From the above 222
discussion, you may discussion, you may
be inclined to think, be inclined to think,
that since these new that since these new
technologies have technologies have
certain undesirable certain undesirable
effects, they might as effects on society, they
well be avoided might as well be
entirely. Such avoided entirely. Such
thinking, however, thinking, however
would be too short would to short sighted
sighted and and technophobic to
technophobic to be be true. The history of
true. The history of technology is replete
technology is replete with instances of
with instances of social instability and
social instability and resistance upon
resistance upon introduction of major
introduction of major technological
technological innovations.
innovations."
The above extracts are merely illustrative in nature.
15. The course material of the Plaintiff‟s unit „New Communication
Technologies‟ and one printed copy of the infringing book of the Defendants
titled as „Modern Communication Technologies‟ have both been placed on
record. As per the evidence, the Plaintiff‟s course material was published for
the first time in 1995 and the Defendants‟ infringing work was published in
1999. The profile of the author is not contained in the book of Defendant
No.1. Apart from the name, there are no details whatsoever about
Defendant No. 2, the author, given in the book of Defendant No.1. The
Plaintiff has produced the author, who has written the course work for the
Plaintiff University. The chapter in the Plaintiff‟s course material - Unit 4
„New Communication Technologies‟ has been verbatim reproduced from
the 5th paragraph onwards, right till the end. Except the introduction and the
summing up part of the course work in chapter 4, the entire chapter has been
lifted word to word, including the titles and sub-titles. Defendant No.1‟s
defence, that its infringing work is based on general knowledge of
electronics or physics, is completely false, as on the basis of general
knowledge it is not possible for anyone to produce an identical verbatim
text. Defendant No.1 has obviously copied from the Plaintiff‟s original
course work.
16. The Plaintiff‟s work is an original literary work under Section 2(o) of
the Copyright Act, 1957. The Plaintiff has exclusive rights to reproduce the
same in any form including the print or electronic form. Copying of even a
small extract of the original work constitutes infringement. In the present
case, the Defendants have copied almost two full chapters of the Plaintiff‟s
course work. Thus, the Defendants are clearly guilty of infringing the
Plaintiff‟s copyright.
17. Process server‟s report dated 13th March, 2004, in fact, states that
there is no person by the name Mr. Y. K. D‟Souza at the address provided.
Thus, Defendant No.1 appears to have used a fictitious author‟s name for
publishing the infringing book. The second process server‟s report states that
the author has refused to accept service. Moreover, the non-appearance of
Defendant No.2, the author and also the absence of any introduction about
the author, his educational qualifications or experience lends credence to the
submission of ld. counsel for the Plaintiff that Defendant No.2 is a fictitious
person.
18. In the evidence of DW-1, who is the sole proprietor of Defendant
No.1 publisher, he admits that one lot of books was printed of approximately
200-300 books. Even taking the maximum sales price of Rs.475/-, the total
sales of the books would come to about Rs.1,42,500/-. If the profit margin is
considered to be 30%, the Plaintiff would be entitled to damages of
Rs.50,000/-. Accordingly, the suit is decreed in terms of prayers (1) & (2),
which are in the following terms.
"(1) A decree for permanent prohibitory injunction
restraining the Defendants from in any manner
selling/circulating/distributing the infringed book titled
"Modern Communication Technologies" by Y.K. D'souza
and from in any marmer further reproducing the said
copyright work. And appointment of a Commissioner for
seizing the infringing copies of the work;
(2) An order requiring the Defendants to render accounts
for profits made by them from the sale of the infringing
book."
19. Decree of permanent injunction is granted in favour of the Plaintiff
and against the Defendants. Further, a decree of damages of Rs.50,000/- is
granted in favour of the Plaintiff and against the Defendants to, be paid on or
before the next date. Since the Plaintiff is a University, which had to litigate
in the present suit for almost 16 years, actual costs are awarded in favour of
the Plaintiff. Bill of Costs be submitted by ld. counsel for the Plaintiff.
20. List for compliance on 10th July, 2019.
PRATHIBA M. SINGH
JUDGE
MAY 14, 2019/dk
(corrected and released on 21st May, 2019)
