Giant Rocket Media And ... vs Ms. Priyanka Ghatak And Ors.
2020 Latest Caselaw 45 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 7th January, 2020.

+                           CS(COMM) 736/2019

      GIANT ROCKET MEDIA AND
      ENTERTAINMENT PVT. LTD.                    ..... Plaintiff
                  Through: Mr. Jagdish Sagar, Ms. Sangeeta
                           Bharti, Mr. Ashish Kumar, Mr. Sushil
                           Kumar Singh, Mr. Rameezuddin Raja
                           and Ms. Anubha Dhulia, Advs.

                                   Versus

    PRIYANKA GHATAK AND ORS.                    ..... Defendants
                  Through: Mr. Sandeep Sethi, Sr. Adv. with Ms.
                           Vidya Prabhakar and Mr. Nishit
                           Malhotra, Adv. for D-1&2.
                           Mr. Abdhesh Chaudhary, Ms. Sakshi
                           Arora and Mr. Nish Kant Singh,
                           Advs. for D-3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

IA No.18527/2019 (of plaintiff u/O XXXIX R-1&2 CPC) & IA
No.82/2020 (of D-1&2 u/O XXXIX R-4 CPC)

1.

The plaintiff has instituted this suit "for permanent injunction against infringement of copyright, against disclosure of confidential information, damages and accounts of profit" against Priyanka Ghatak, Zee Entertainment Enterprises Ltd. and Mr. Shantonu Sen, pleading that:

(i) the plaintiff is a production house which creates varied content and has made numerous short films; the plaintiff has its own channel,

on which it uploads many of its short films; the plaintiff is also working on a huge series based on new and thought provoking content;

(ii) defendant no.1 is a script writer of a serial (web series) comprising 8 episodes, to be streamed on internet streaming site of defendant no.2; the defendant no.2 is a major entertainment company engaged inter alia in film production, television broadcasting, radio sound recording production and various internet services; the defendant no.3 is a proforma defendant, impleaded in compliance with Section 61 of the Copyright Act, 1957;

(iii) the plaintiff acquired the rights for derivative exploitation by adaptation for different modes of media of a book titled "CBI Insider Speaks: Birlas to Sheila Dikshit" authored by defendant no.3, a former Joint Director, Central Bureau of Investigation (CBI); Chapter 7 of the said book is titled as "Shuttlecock Investigation: Syed Modi Murder Case";

(iv) in November, 2019, the defendant no.2 approached the defendant no.3 for a license for adaptation of the book aforesaid authored by the defendant no.3, for a web series and all other purposes; the defendant no.3 informed the defendant no.2 that the said rights had already been exclusively licensed to the plaintiff; the defendant no.3 then sent an e-mail dated 26th November, 2019 to the plaintiff in this regard;

(v) on 27th November, 2019, the defendant no.2 contacted the plaintiff, seeking a transfer of rights for adaptation of the said book; however the plaintiff expressed reluctance thereto;

(vi) on 28th November, 2019, the defendant no.2 sent an e-mail to the plaintiff, again offering to acquire the rights in the aforesaid book authored by the defendant no.3 and which rights defendant no.3 had licensed to the plaintiff;

(vii) on 10th December, 2019, the plaintiff sent an e-mail to defendant no.2 suggesting on a preliminary basis, the possibility of cooperation; the defendant no.2 did not reply to the said e-mail of the plaintiff;

(viii) on 11th December, 2019, the defendant no.3 sent a notice to defendant no.2, referring to a conversation on 9th December, 2019 with the defendant no.2 wherein the defendant no.2 again tried to acquire the rights in the book aforesaid from the defendant no.3;

(ix) on 26th December, 2019, the defendant no.3 sent a follow-up notice to defendant no.2, after having learnt that the defendant no.2 had already shot a serial on the Syed Modi Murder Case from the book of the defendant no.3; a copy of the said notice was also sent by defendant no.3 to the plaintiff;

(x) on further exploration, the plaintiff found that the defendant no.2 had been planning the release of a web series on the same subject, of murder of Syed Modi, under the title "Chargesheet: The Shuttlecock Murder";

(xi) the title aforesaid clearly showed adaptation by the defendant no.2 of Chapter 7 of the defendants no.3‟s book and rights wherein the defendant no.2 had been unsuccessfully trying to acquires from the plaintiff and defendant No.3;

(xii) the defendant no.2, apparently on second thought, changed the game played by the murder victim, from badminton to table tennis; however the story of the web serial of defendant no.2 still identified with Chapter 7 of the book of defendant no.3;

(xiii) the mala fides of defendant no.2 are also evident from the claim of the defendant no.1 in the media, of having no idea of Syed Modi Murder Case until the start of the shows production; it is impossible for anyone to have no idea of Syed Modi Murder Case and to invent the story from scratch;

(xiv) on 28th December, 2019, the Line Producer assisting the Producer of the defendant no.2‟s web serial confirmed to the plaintiff that the web series to be released by the defendant no.2 was in fact exactly the same as Chapter 7 of the defendant No.3‟s book and unchanged but for the replacement of the badminton with table tennis;

(xv) the idea of adapting defendant no.3‟s book as a basis for web series, is itself an original valuable commercial idea; the said idea could be given expression only by following defendant no.3‟s narration, compilation and selection of facts; any such adaptation, without permission, is infringement of the plaintiff‟s exclusive rights under Section 14(a)(vi) of the Copyright Act; the plaintiff thus has locus standi under Sections 54 and 61 of the Copyright Act to institute the suit; and,

(xvi) the defendants, at all times wanted to adapt the story as compiled and authored by defendant no.3, and in which the plaintiff held exclusive rights, into a web series.

2. The plaintiff, on the pleas aforesaid, sought the reliefs of (a) permanent injunction restraining defendants no. 1 and 2 from communicating to the public over the internet and infringing the exclusive copyright of the plaintiff to make adaptation from the book titled "CBI Insider Speaks: Birlas to Sheila Dikshit"; (b) permanent injunction restraining defendants no. 1 and 2 from misappropriating and misusing the confidential and commercial valuable conception of the plaintiff to exploit the adaptation of the book aforesaid; (c) recovery of damages; and, (d) rendition of accounts.

3. The suit, aforesaid instituted on 31st December, 2019, came up before the Vacation Bench of this Court on 3rd January, 2020 when, while issuing summons of the suit for 23rd January, 2020, vide ex parte ad interim order the defendants no. 1 and 2 were restrained from communicating to the public over the internet, or otherwise infringing by any means, the exclusive rights of the plaintiff to make adaptations including but not limited to web series from the book titled "Insider Speaks: Birlas to Sheila Dikshit".

4. The senior counsel for the defendants no. 1 and 2, on the Court re- opening day of 6th January, 2020, mentioned the application of the defendants no. 1 and 2 for vacation of the ex parte ad interim order for urgent listing,. It was the contention of the senior counsel for the defendants no. 1 and 2 that the defendants no. 1 and 2, on 1st January, 2020, had already released on the internet the 8 episodes of defendant no.2‟s web series "Chargesheet: The Shuttlecock Murder" and thus the ex parte ad interim order dated 3rd January, 2020 was in the nature of an ex parte ad interim mandatory injunction directing the defendants no. 1 and 2 to remove the

aforesaid 8 episodes of its serial from its website. The application of the defendants no. 1 and 2 for vacation of ex parte ad interim order was ordered to be urgently listed on 6th January, 2020 itself and the counsel for the plaintiff appeared on advance notice and sought time to reply/argue.

5. Considering the urgency, the application was ordered to be listed today for hearing and liberty given to the counsel for the plaintiff to bring the reply if any to the Court and/or to place before the Court the documents if any in support of its claim of interim injunction or in rebuttal to application of defendants No.1&2 for vacation of ex-parte order.

6. The counsel for the plaintiff today informs that reply has been filed in the Registry. The same has been called for and got placed on record.

7. The counsel for the plaintiff, the senior counsel for the defendants no. 1 and 2 and the counsel for the defendant no. 3 have been heard.

8. Having gone through the plaint filed by the plaintiff and finding,

(i) that Chapter 7 of the book "CBI Insider Speaks: Birlas to Shiela Dikshit" authored by the defendant no.3 is based on knowledge of the defendant no.3 as Investigating Officer of what then came to be known as the "Syed Modi Murder Case";

(ii) that the plaintiff has nowhere pleaded any similarity in the contents of the web serial titled "Chargesheet: The Shuttlecock Murder" of the defendant no.2 in terms of script or dialogue or in any other respect, with Chapter 7 of book authored by defendant no.3; and,

(iii) that the plaintiff, though has alleged breach of confidentiality by the defendant no.2, had not pleaded any material or thing supplied by the plaintiff to the defendant no.2 in confidence,

and being of the opinion that Chapter 7 of the book authored by the defendant no.3 being not a piece of fiction and merely a narrative of the crime and its prosecution, all of which was already in public domain and in which none could have a copyright, I have straightaway enquired from the counsel for the plaintiff, how the plaintiff or the defendant no.3 could claim exclusive right to the facts of the Syed Modi Murder Case and whether not the said case, being in public domain, it was open to all to adapt the same, whether for a literary work or for a film or for any other media and none could claim exclusivity thereto. It was further enquired from the counsel for the plaintiff, whether not the said question went to the root of the matter and if the plaintiff could have no exclusive right with respect to facts of Syed Modi Murder Case, whether not in the absence of any pleas of similarity and supplying of any material of any confidentiality, the suit was not maintainable and liable to be dismissed.

9. Though the counsel for the plaintiff and counsel for the defendant no.3 have addressed on the aforesaid aspect but being of the view that the plaintiff should have notice of the question raised by the court as to the very maintainability of the suit, it was enquired from the counsel for the plaintiff, whether he would consent to hearing on the said aspect also today or would need further time therefor.

10. The counsel for the plaintiff has opted for further time.

11. The present order is thus concerned only with the application for interim relief and the application for vacation of the ex parte ad interim order, and the reference therein to the maintainability is not intended to be for the purposes of judging the maintainability of the suit and for which purpose the hearing, as already scheduled, is posted on 23rd January, 2020.

12. The counsel for the plaintiff has argued, (i) that the plaintiff, on the facts pleaded, though may not be entitled to the relief on the ground of infringement of the copyright, but is entitled to relief on the ground of misappropriation of confidential information; (ii) that the defendant no.2 was admittedly in negotiation with the plaintiff and defendant no.3 and thereafter has surreptitiously adapted Chapter 7 of the book authored by the defendant no.3, which was already in public domain; (iii) that the idea of making a story of the Syed Modi Murder Case, was of the defendant no.3 and of making a film of the said story is of the plaintiff; attention in this regard is invited to paragraph 6 of the plaint, wherein pleading with respect to acquisition by the plaintiff of rights for derivative exploitation of the copyright of the defendant no.3 in the book, are contained; (iv) that the entire conduct of the defendant no.2 is suspicious; (v) that the document at pages 67 of Part IIIA File, being the media report of the web serial of the defendant no.2, shows that the defendant no.2 at the last moment changed the game played by the victim from badminton to table tennis; the web series is otherwise based on Syed Modi Murder Case and the document at page 71 of Part-III-A file, being the reply dated 30th December, 2019 of the defendant no.2 to the legal notice dated 11 th December, 2019 and 26th December, 2019 sent by the defendant no.3 to the defendant no.2 admits that the web series was based on a badminton player and his murder and was

initially titled as "The Shuttlecock Murder‟ and that the title was subsequently changed to „The Chargesheet- Innocent of Guilty‟"; (vi) that the defendant No.2, after negotiating with plaintiff and defendant No.3, on 26th December, 2019 turned dishonest and decided to produce the web serial, though by adopting the idea of the defendant No.3 and the confidential information received from plaintiff, but without entering into agreement with plaintiff; (vii) reliance is placed on Zee Telefilms Ltd. Vs. Sundial Communications Pvt. Ltd. & Ors. 2003 SCC OnLine Bom 344 holding that the law of confidence is different from law of copyright; though there can be no copyright of ideas or information and it is not infringement of copyright to adopt or appropriate ideas of another or to publish information received from others, but if the ideas or information have been acquired by a person under such circumstances that it would be a breach of good faith to publish them, the Court may grant injunction against him; (vii) reliance is also placed on Anil Gupta and Anr. Vs. Kunal Dasgupta and Ors. AIR 2002 Del 379 holding the though idea per se has no copyright but if the idea is developed into a concept, fledged with adequate details, then the same is capable of registration under copyright; (ix) that the web serial of the defendant was released on 1st January, 2020 i.e. after the filing of the suit on 31st December, 2019, but before hearing thereof on 3rd January, 2020 and thus the ex parte ad interim relief granted is not mandatory, inasmuch as the ex parte order merely undoes what has been done by the defendant no.2 to score a mileage over the plaintiff; it is not as if the Court can never grant ex parte ad interim injunction in mandatory form; reliance is placed on Dorab Cawasji Warden Vs. Coomi Sorab Warden & Ors. (1990) 2 SCC 117; (x) that the mala fides of the defendant no.2 are also apparent from

defendant no.2, on 1st January, 2020 itself releasing all of the 8 episodes instead of releasing the episodes periodically; (xi) that the plaintiff learnt of the design of the defendant no.2 only on receipt of copy of the notice dated 26th December, 2019 got served by the defendant no.3 on the defendant no.2; and, (xii) attention is invited to page 25 of Part III-A File, being the communication dated 28th November, 2019 of the defendant no.2 to the plaintiff and it is contended that there is no mention therein of the book authored by the defendant no.1.

13. I have enquired from the counsel for the plaintiff, whether the Investigating Officer of a crime and its prosecution, has any copyright over the charge sheet authored by him or over any other material collected by him.

14. The counsel for the plaintiff though has not made any such claim but has avoided to answer.

15. The senior counsel for the defendants No.1&2 informs that the defendant No.1, who is the script writer of the web series of the defendant No.2, has also authored a book titled "Shuttle Cock Murder", and on 9th July, 2018 assigned her copyright with all the requisite rights to one Ashok Pandit, who then further delegated his acquired rights to one Daytee Pictures Pvt. Ltd. Thereafter, Daytee Pictures Pvt. Ltd. and defendant No.2 entered into an agreement to produce a web series based on the defendant No.1‟s book.

16. I have enquired the date of publication of the book of the defendant No.3 and of the book of the defendant no.1.

17. It is informed that while the book of the defendant no.3 was published in the year 2015, the book of the defendant no.1 was published on 21 st November, 2019.

18. The counsel for the plaintiff having argued, that the intention of the defendant no.2 turned mala fide on 26th December, 2019, I have further enquired from the counsel for the plaintiff, how much time does it take to complete the shoot/filming and canning of 8 episodes of 45 minutes each, to be released on 1st January, 2020.

19. Though the counsel for the plaintiff states that he has no knowledge in this regard but Mr. Sidharth Sikka, CEO of the plaintiff present in the Court states that the same should take at least 15 to 20 days.

20. Therefrom it is evident that the defendant No.2, after 26 th December, 2019 could not have filmed the eight episodes of the web serial, all of which were evidently released on 1st January, 2020. The inference is that the filming must have been underway from before.

21. I have drawn attention of the counsel for the plaintiff to my judgment in Modicare Limited Vs. Gautam Bali 263 (2019) DLT 486 and Satish Kumar Vs. Khushboo Singh MANU/DE/3411/2019 holding that in the absence of any law in India of confidentiality and the same as a tort being in violation of the law laid down in Section 27 of the Contract Act, 1872, the claim cannot lie on the ground of confidentiality and thus has to be under the Copyright Act only.

22. The counsel for the plaintiff states that the Division Bench of the High Court of Bombay and a Coordinate Bench of this Court in the judgments aforesaid have granted relief on the principle of confidentiality.

23. The senior counsel for the defendants No.1&2 has argued, (i) that from a reading of paragraphs 18 & 19 of the plaint, it is clear that the plaintiff has no cause of action for the suit; (ii) that no similarity is pleaded between Chapter 7 of the book authored by the defendant No.3 and the book authored by the defendant No.1 on which the web series comprising of eight episodes of the defendant No.2 is based; (iii) that there is no plea of entrustment by the plaintiff to the defendant No.2 of anything in confidence;

(iv) that while Chapter 7 of the book authored by the defendant No.3 comprises only of five pages, the book authored by the defendant No.1 comprises of 145 pages; (v) that the extracts from Chapter 7 of the book authored by the defendant No.3 and from the book of the defendant No.1 are read, to show the dis-similarity therein; (vi) that Chapter 7 of the book authored by the defendant No.3 is merely an expression of the view of the defendant No.3 of the happenings in the Syed Modi Murder case; on the contrary, the entire book authored by the defendant No.1 comprising of 145 pages is based on Syed Modi Murder case; (vii) that the defendant No.1 may have been inspired by Syed Modi Murder case but the same does not constitute any copyright violation; (viii) that the reasoning given by the Vacation Judge of this Court for granting the ex-parte order, of the theme of Chapter 7 of the book authored by the defendant No.3 and of the web series produced by the defendant No.2 being the same i.e. the murder of a national level sports person with political ramifications, is contrary to the law laid down in R.G. Anand Vs. Delux Films (1978) 4 SCC 118 that it is always open to any person to choose an idea as a subject matter and develop it in his own manner and give expression to the idea by treating it differently from others and that where two authors write on the same subject, similarities are

bound to occur because the central idea of both are the same but the similarities or coincidences by themselves cannot lead to an irresistible inference of plagiarism or piracy unless one has merely disguised piracy; if such a person has actually reproduced the original in a different form, different tone, different tenor so as to infuse a new life into the idea of the copyrighted work adapted by him, there is no violation of the copyright; and, (ix) that discussions held by the defendant No.2 with the plaintiff and the defendant No.3 were for the entire book and not for one chapter only, as the defendant No.2 was then contemplating a web series based on all the chapters of the book authored by the defendant No.3, but which ultimately did not fructify.

24. The counsel for the defendant No.3, on enquiry states that he is supporting the plaintiff. He has argued, (a) that the book of the defendant No.1 was admittedly published after the book of the defendant No.3 and the web series of the defendant No.2 was produced before publication of the book of the defendant No.1, and thus cannot be based on the book of the defendant No.1; (b) that the defendant No.3 saw teasers of the forthcoming web series of the defendant No.2 and that is why got the notices issued; (c) that as per the said teasers, the web series of the defendant No.2 narrates the story from the eyes of an Investigating Officer, as in Chapter 7 of the book of the defendant No.3 (however on being asked to demonstrate, the counsel for the defendant No.3 states that he will need to produce the same); and, (d) that the teasers have the same opening line as the first line of Chapter 7 of the book of the defendant No.3.

25. The counsel for the plaintiff, in rejoinder, has argued, (I) that paragraphs 18 & 19 of the plaint do show cause of action; (II) that the plaintiff along with reply filed to the application of defendants No.1&2 for vacation of stay, has at pages 47 & 48 filed screenshots of Episode 1 and Episode 8 of the web series of the defendant No.2 which show the characters along with shuttlecock at page 47 and along with badminton shuttlecock(s) at page 48 and do not show table tennis racket or table tennis balls; (III) that the hands of the defendant No.2 are tainted; (IV) that the action of the defendant No.2, of seeking licence from the plaintiff and defendant No.3 are in acknowledgment of the copyright of the defendant No.3; (V) that the defendant No.2 has acted dishonestly and has at the last minute sought to change the story of its web series by changing the game played by the victim therein with the game of table tennis instead of the game of badminton as was played by Syed Modi in an attempt to avoid the claim of plaintiff; else the web serial remains the same; and, (VI) that a reading of the plaint shows clear cause of action.

26. After conclusion of hearing, the order vacating the ex-parte ad- interim order dated 3rd January, 2020, allowing IA No.82/2020 and dismissing IA No.18527/2019 was pronounced with reasons to be dictated in Chamber during the course of the day.

27. Having considered the material on record and the rival contentions, I am unable to find the plaintiff entitled to any interim relief. My reasons therefor are as under:

(A) Copyright is a statutory right and no right outside the statute exists. Reference in this regard can be made to Time Warner

Entertainment Company L.P. Vs. RPG Netcom (2007) 140 DLT 758, Entertainment Network (India) Ltd. Vs. Super Cassette Industries Ltd. (2008) 13 SCC 30, Krishika Lulla Vs. Shyam Vithalrao Devkatta (2016) 2 SCC 521, Navigators Logistics Ltd. Vs. Kashif Qureshi (2018) 254 DLT 307 and Satish Kumar supra. Thus, unless a case of defendant No.3 having any copyright and the defendants No.1&2 having infringed the same is made out, the plaintiff is not entitled to any interim relief on the said ground.

(B) Per Section 13 of the Copyright Act, copyright subsists in, (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording. The copyright claimed by the plaintiff being in a book authored by the defendant No.3, the same will fall under the category of „literary work‟. However, for a copyright to subsist in a literary work, it has to be "original".

(C) In Macmillan & Company Ltd. Vs. K & J Cooper AIR 1924 PC 75, it was held that the word „original‟ does not mean that work must be the expression of original or inventive thought; Copyright Act is not concerned with originality of ideas, but with the expression of thought and in the case of literary work, with the expression of thought in print or writing; the originality which is required, relates to expression of the thought but the Act does not require that the expression must be an original or novel work but that the work must not be copied from another work. Comparatively recently, in Eastern Book Company Vs. D.B. Modak AIR 2008 SC 809, it was held that,

(a) the words "literary work" cover work which is expressed in print or

writing, irrespective of, whether the quality or style is high; (b) the commonplace matter put together or arranged without the exercise of more than negligible work, labour and skill in making the selection, will not be entitled to copyright; (c) the word "original" demands only that the work should not be copied but should originate from the author; (d) the Court has to see whether the work is a result of skill or expense and if finds it so, it is entitled to be considered original, and to be protected against copying; (e) copyrighted material is that what is created by the author by his skill, labour and investment of capital, maybe it is derivative work; and, (f) the courts will have to evaluate whether derivative work is not the end product of skill, labour and capital which is trivial or negligible but substantially the Courts need not go into evaluation of literary merit of derivative work or the creative aspect of the same. The Division Bench of this Court in Dart Industries Inc. Vs. Techno Plast 233 (2016) DLT 1 held that the content of what is "original" has undergone considerable change from the previously applicable "sweat of the brow" doctrine to the "modicum of creativity" standard. It was held that while under the "sweat of the brow" doctrine copyright was conferred on works merely because time energy skill and labour was expended, now under the "modicum of creativity" standard not every effort or industry or expending of skill results in copyrightable work but only those which create works that are somewhat different in character, involve some intellectual effort and involve a certain degree of creativity. Reference in this regard may also be made to The Chancellor Masters and Scholars of the University of Oxford Vs. Narendra Publishing House

MANU/DE/1377/2008, Mattel Inc. Vs. Jayant Agarwalla 153 (2008) DLT 548, Reckeweg and Co. GMBh Vs. Adven Biotech Pvt. Ltd. MANU/DE/0961/2008, Syndicate of the Press of the University of Cambridge Vs. B.D. Bhandari 185 (2011) DLT 346 (DB), Emergent Genetics India Pvt. Ltd. Vs. Shailendra Shivam MANU/DE/3012/2011, Tech Plus Media Private Limited Vs. Jyoti Janda MANU/DE/2438/2014 and Navigators Logistics Ltd. supra.

(D) Though the entire book authored by the defendant No.3 has not been placed before this Court, with only a copy of the cover and table of contents thereof together with Chapter 7 thereof filed but a reading of the preface thereof reveals that the defendant No.3, in the book has narrated facts about the incident that created news and the book is described as a tale of investigation and prosecution by the CBI that never saw the light of the day. Chapter 7 of the book is defined in the preface as "a crime of passion" and showing "how blue blood suffers from streaks of jealousy and lust and commits murder most vile". Chapter 7 also describes Syed Modi Murder case as a fascinating case of political interference, changing the course of law.

(E) In paragraph 6 of the plaint, it is pleaded that the defendant No.3 from his career in CBI from August, 1963 till his retirement as Joint Director in April, 1996, acquired a deep understanding of the inner workings of the CBI and its interplay with the political system and the book contains a series of highly original narratives of important cases with selection and compilation of facts and materials such as could only have been made by defendant No.3 with his narrative skills

and deep understanding of the working of the criminal justice system in matters of the kind handled by the CBI.

(F) Applying the law aforesaid, it cannot be said with certainty at this stage, whether Chapter 7 of the book with which this suit is concerned constitutes an "original literary work" or is merely a reproduction of the case files of the crime and its prosecution. If it turns out that it is merely a reproduction, with no innovative thought and creativity, it would not qualify as a copyrighted work. The plaintiff has not produced before this Court the said case files with which a comparison of Chapter 7 can be made and thus the plaintiff cannot be said to have a prima facie case as the defendant No.3, through whom the plaintiff claims, cannot be said to have a copyright. It is in this context only that I had enquired from the counsel for the plaintiff, whether the Investigating Officer of a crime and prosecution has any copyright in the charge sheet filed and/or investigation done. In my prima facie view, the Investigating Officer has no such copyright and if narrates the same in print or otherwise elsewhere, would not have a copyright therein also.

(G) Per Section 14 of the Copyright Act, copyright means the exclusive right to do or authorize the doing of acts mentioned therein. With respect to the literary works, the exclusive right is to inter alia reproduce the work in any material form and to make any cinematograph film in respect of the work. Thus, even if the defendant No.3, through whom the plaintiff claims were to have any copyright in Chapter 7, it was incumbent upon the plaintiff to, in the plaint, make

out a case of the book of the defendant No.1 having reproduced any part of Chapter 7 in any material form and/or of the defendant No.2 in its web series having made a cinematographic film with respect to Chapter 7 of the book of the defendant No.3. The plaint is bereft of any pleas in this regard. In fact, the counsel for the plaintiff or the counsel for the defendant No.3 in their arguments have not even attempted to make any comparison of Chapter 7 of the book of the defendant No.3 with the book of the defendant No.1 or between Chapter 7 and the film script of the web series of the defendant No.2. Rather, the counsel for the plaintiff, on enquiry, whether has watched the web series, has answered in the negative. Without the plaintiff pleading a case of reproduction of Chapter 7 of defendant No.3‟s book or summary of the script of the web series with Chapter 7, no cause of action on the ground of infringement of copyright is found pleaded in the plaint. The plaintiff appears to have filed the suit on the assumption that production of the web series by the defendant No.2, after approaching the plaintiff and defendant No.3 to acquire rights in the book of the defendant No.1, to be itself constituting infringement of copyright but which, as aforesaid, is not the position in law. Even if both Chapter 7 of the book of the defendant No.3 and the book of the defendant No.1 along with the web series of the defendant No.2, are premised on the Syed Modi Murder case which was in public domain, no case for infringement of copyright will be made out.

(H) A reading of Chapter 7 and portions of the book of the defendant No.1 also shows the two, though to be concerning the same case, to be as different as chalk and cheese, with Chapter 7 of the book

of the defendant No.3 reeking of official language and the book of the defendant No.1 flavored as fiction and covering not merely the crime and its prosecution but other parts of the lives of the dramatis persone of the drama which unfolded with the crime, with wide coverage, not only in Delhi newspapers, but in other periodicals. In fact, even till date whenever photographs of the survivors of the incident appear, even if in some other context, but are always invariably with reference to the crime and its prosecution. The said crime is as iconic in the history of Indian crimes as the Nanavati Murder case of the erstwhile times and the Talwar and Nithari case of comparatively recent origin with, as far as I remember, four films and one web series having been produced inspired by the Nanavati Murder case. Thus, no prima facie case of infringement of copyright even if any is pleaded or an attempt to prove the same is made out.

(I) Perhaps realizing so, the counsel for the plaintiff, early in his arguments, based his arguments primarily on breach of confidentiality. However as aforesaid noticed and also argued by the senior counsel for the defendants No.1&2, the plaint is bereft of any plea of any relationship of confidentiality between the parties or anything in confidentiality having been transacted between the parties. All that the plaintiff has pleaded is the repeated approaches made by the defendant No.2 to the plaintiff and the defendant No.3 to acquire rights in the book of the defendant No.3 and defendant No.3 though initially having shown reluctance thereto having subsequently informed the defendant No.2 of its willingness to negotiate. There is not an iota of plea of any

jural relationship having come into existence on the premise of confidentiality.

(J) The only response of the counsel for the plaintiff when quizzed in this respect was that the book of the defendant No.3 was already in public domain. However if that was so, the same negates any ground urged of confidentiality.

(K) As far as the judgments relied upon by the counsel for the plaintiff are concerned, in Zee Telefilms Ltd. supra, the plaintiff was found to have developed a novel concept of Bal Krishna residing with a family whose life is disturbed and solving their troubles and of having developed the said idea into a plot which was submitted to defendant No.1 in trust and it was further found that the defendant No.1, in an attempt to wriggle out of culpability sought to contend that at about the same time, the defendants No.2&3 approached the defendant No.1 with the same plot. The Court found the two works to be having striking similarity and further found it impossible to accept that the similarities in two works were mere coincidence. It was for this reason that injunction was granted. As distinct therefrom, Chapter 7 of the book of the defendant No.3 is not based on any novel concept but on a crime and its prosecution, already in public domain and the possibility of the defendant No.1, much after publication of book by the defendant No.3 having chosen to write a piece of fiction premised on the same crime and its prosecution, is writ large, particularly when the law permits the same and no similarity is found between the two works much less

reproduction by the defendant No.1 or the defendant No.2 of the work of the defendant No.3.

(L) Thus, no pleadings or cause of action for grant of any interim relief to the plaintiff on the ground of breach of confidentiality is made out. In view thereof, the need to deal with the existence of the right of confidentiality in the context of Indian Law is not felt.

(M) The plaintiff is giving undue emphasis to the change effected by the defendant no.2 in its web series with respect to the game played by the victim. The same is of no significance to the entitlement of the plaintiff to the relief claimed.

(N) Merely because the defendant no.2 approached the plaintiff and defendant no.3 for acquiring rights in the book of the defendant no.3 would also not entitle the plaintiff to the relief without plaintiff making out a case of having a copyright and infringement thereof or of the defendant no.2 having misappropriated anything handed over to it in trust or confidence. What has to be judged is the conduct of the defendant and if the said conduct is found to be above law even though the defendant no.2 under misconception/ignorance of law or otherwise was earlier of the view that consent of the plaintiff and/or defendant no.3 was required, the same would not estop the defendant no.2 from, on realising the correct position in law, proceeding to make and release the film/web series without any agreement with the plaintiff or defendant no.3.

(O) I am also of the view that the ex-parte relief as granted against the defendants no.1& 2 on 3rd January 2020, even though couched in

the language of a prohibitory injunction, owing to undisputed release of the web series by the defendant no.2 on 1st January 2020 was in ex- parte ad-interim mandatory form. Rather, it was incumbent upon the counsel for the plaintiff to, at the time of hearing on 3 rd January 2020, inform the court of the web serial having already been released on 1 st January 2020 and to request the court to direct the said web series to be taken down and which the plaintiff failed to do.

(P) Not only is the plaintiff not found to be having a prima facie case but the plaintiff is found to fail on the anvil of irreparable loss and injury and balance of convenience. The defendant no.2 having already made and released the web series, at a huge cost would suffer irreparable loss on being restrained to reap the benefit of not only the monies invested but also the effort of love for filmmaking, including of all artists involved in the making thereof. On the contrary, the plaintiff, even if ultimately succeeds, can always be compensated in monetary terms and post facto recognition conferred on the defendant no 3. The senior counsel for the defendants no.1&2, yesterday on enquiry informed that a sum of Rs.14 crores had been expended on making of the web series. I had yesterday only enquired from the counsel for the plaintiff, whether was willing to furnish security to the defendant in the said sum plus reasonable profits likely to be reaped therefrom. No response was given, neither yesterday nor today.

(Q) I must however observe that even though the plaintiff is not found to have made out a case for interim relief but the defendants No.1&2 are also not found to be playing fair and making a clean breast

of the state of affairs. However, such conduct of the defendants No.1&2 would not be a ground for granting interim relief to the plaintiff.

28. Resultantly, the ex-parte ad-interim order dated 3rd January, 2020 is vacated.

29. IA No.82/2020 is allowed and IA No.18527/2019 is dismissed.

RAJIV SAHAI ENDLAW, J.

JANUARY 07, 2020 „ak/bs‟