DEEPAK PRINTERY AHMEDABAD Vs. FORWARD STATIONERY MART

JUDGEMENT

(1.) A dispute between two rival manufacturers of calendar date-pads (Dattas) has given rise to this appeal by the original plaintiff whose suit claiming copyright in the date-pad manufactured by him and complaining of infringment on the part of the respondents-defendants was dismissed by the learned Judge presiding other 6th Court in the City Civil Court Ahmedabad by his judgment and order dated June 15 1974 The appeal arises from a suit of 1972 which has been expedited by reason of the fact that even though the respondents-defendants have succeeded in the trial Court they have been restrained by way of interim injunction from manufacturing the date-pads. It has been expedited because if the appellant-plaintiff fails to establish that he has a copyright a temporary copyright for an interim period cannot be granted by the Court by granting an interim injunction restraining the other side from manufacturing date -pads which he has a right to manufacture in case there is no violation or infringement of the alleged copyright of the appellant-plaintiff.

(2.) Before coming to grips with the facts a few general observations require to be made. It does not appear to be very clear as to (1) exactly in what right the appellant-plaintiff claims his copyright and (2) precisely in what matter the appellant-plaintiff claims his copyright. It is not clear from the averments in the plaint. And the evidence haS not thrown much light on the question We will however have to do the best on the present state of pleadings and the material on record. The date-pad manufactured by the appellant-plaintiff has a peculiar shape. The shape is that of a lotus turned upside down. In other words if the date-pad is turned upside down and one looks at it it will appear to be the shape of a lotus. There are 365 leaves corresponding to each date of the Samvat year in the date-pad. On the edge of each page there is a coloured border. Different pages have borders of different colours. On the left hand side the Gujarati Tithi is mentioned. On the top of the Tithi the Gujarati month is mentioned. And along side the relevant fortnight is indicated by the expression Sud or Vad as the case may be. Beneath the Gujarati figure the date of the week is mentioned in Gujarati. On the right hand side on the top the English month just beneath it the English date and just beneath it the day of the week in English are indicated. In the very centre of the page between the Gujarati date on the left hand side and the English date on the right hand side there is either a portrait of a national leader or a picture indicating the significance of the day or a mythological figure. In some pages the central piece instead of being a portrait or photograph is a decoration. At the bottom the Islamic date and the Parsi date are mentioned in Gujarati. Beneath that a Gujarati proverb is printed. Different proverbs are printed on different pages. At the bottom the Gregorian year is mentioned. That is the scheme of the plaintiffs date-pad. In the plaint it has not been specified as to in what features of the date-pad copyright is claimed. Nor does the plaintiff make it clear whether he is himself the author of the work or is an assignee claiming his rights from the author of the work. It appears from the evidence that the date-pad has been designed with the co-operation of a well-known artist. namely Shri Kanu Desai. He provided the basic idea for the different components of the dale pad and it appears that he has himself designed the central pieces of decoration or portraits or pictures as the case may be. Now it is not made clear in the plaint as to whether copyright is claimed in the pictures paintings and decorations prepared by Shri Kanu Desai. The learned counsel for the appellant-plaintiff in the course of the arguments said that copyright is claimed in the date-pad as a whole.

(3.) It will he convenient to refer to certain aspects of the Copyright Act 1957 and the law relating to copyright before tackling the facts of the case. Sec. 13 of the Act specifies in what works copyright can subsist. Copyright can subsist in (a) original literary dramatic musical and artistic works; (b) cinematograph films and (c) records. In order to gather the content of the expression artistic work employed in sec. 13 a reference may be necessary to the dictionary provided by the Copyright Act itself. Sec. 2(y) defines work inter alia as a literary dramatic musical or artistic work. It is not necessary to refer to the other part of the definition for the purposes of the present ease. Sec. 2(c) defines the expression artistic work as under : (i) a painting a sculpture a drawing (including a diagram map chart or plan) an engraving or a photograph. whether or not any such work possesses artistic quality; (ii) an architectural work of art; and (iii) any other work of artistic craftsmanship; The plaintiff must therefore show that the work in which he claims copyright is an artistic work as defined in sec. 2(c) read with sec. 13 of the Copyright Act. Sec. 18 of the Act provides for assignment of the Copyright by its owner. Chapter X deals with registration of a copyright Now there is no express provision in the Act which makes it obligatory for the owner of a copyright to get it registered under the Copyright Act. The Copyright Act is substantially modelled on the corresponding Copyright Act of the United Kingdom namely Copyright Act of 1956. It may incidentally be mentioned that previously there was a Copyright Act of 1900 in India which corresponded to the Copyright Act of 1911 which obtained in the United Kingdom. It may also be remarked that the central purpose of the Copyright Act is to protect authors and artists from being exploited. So far as the commercial and industrial designs and rights are concerned the Legislature has enacted the Patents Act and the Designs Act. Turning now to the Copyright Act it is necessary to realise that ideas. can never be the subject matter of copyright. Copyright can subsist in a material in which the idea has been executed. In other word there can be copyright ill a material object but not in an idea The purpose of the copyright is not to Create a monopoly in respect of ideas but the purpose is only to extend protection to the authors and the artists in the field of literature and fine arts and to artists and craftsmen. This is abundantly clear from the definition of the expression artists work which refers to paintings sculptures drawings and photographs etc. and the architectural work of art and the work of artistic craftsmanship. What is sought to be achieved is to protect the author and artist from an unlawful reproduction of his works and exploitation of his art by others. What is frowned at is piracy of the art or the work of the artist and not the piracy of the ideas of the author or the artist. The extract from Copinger and Skone James on Copyright eleventh edition paragraphs 1 and 2 may be quoted in support of the aforesaid proposition : 1 Copyright law is in essence concerned with the negative right of preventing the copying of physical material existing in the field of literature and the arts. Its object is to protect the writer and artist from the unlawful reproduction of his material. It is concerned only with the copying of physical material and not with the reproduction of ideas and it does not give a monopoly to any particular form of words or design. It is thus to be distinguished from the rights conferred by patent trade mark and design legislation which give to the registered proprietor an exclusive right to the registered material even as against a person who has reproduced such material innocently and from an independent source. 2 The claim is not to ideas but to the order of words and this order has a marked identity and a permanent endurance....The order of each mans words is as singular as his countenance and although if two authors composed originally with the same order of words each would have a property therein still the probability of such an occurrence is less than that there should be two countenances that could not be discriminated. The permanent endurance of words is obvious by comparing the works of ancient authors with other works of their day; the vigor of their words is unabated; the other works have mostly perished. It is true that property in the order of words is a mental abstraction but so also are many other kinds of property; for instance the property in a stream of water which is not in any of the atoms of the water but only in the flow of the stream. The right to the stream is not the less a right Property either because it generally belongs to the riparian proprietor or because the remedy for a violation of the right is by action on the case instead of detinue or trover.