NAGIN CHAND JAIN Vs. STATE OF U P

JUDGEMENT

(1.) This is a petition under Section 482 Criminal Procedure Code. The present petitioner filed complaint against opposite parties Nos. 2 to 4 with the allegations that he is proprietor of M/s. Nagin Prakashan, Meerut and a reputed publisher of High School and intermediate books. Sri Raj Kumar and Sri G. D. Mittal were join, authors of a Physics Text Book named High School Bhautiki'. The authors assigned copyright of the said book to M/s Nagin Prakashan in the year 1968 and had not re voked the same. By virtue of the assign ment M|s Nagin Prakashan had the excusive right to publish the said book. The last Edition of the book was published in the year 1980. The book had become very po pular and had run into 13 Editions, all of which were published by M/s Nagin Pra kashan. Opposite parties Nos. 3 and 4 wrote a Physics book named 'new Pattern Gagan Guide' and opposite party No. 2 published the same. This book contained in parts exactly the same questions, the same language and figures etc. , as his Publication 'high School Bhautiki'. The work 'new Pattern Gagan Guide' was complete infringement of his copyright in the book- High School Bhqutiki. The complainant: also added that the publication of the pirated bock had re duced the sales of his own bock and put him to heavy losses. He added that the accused (opposite parties 2 to 4) had thus, committed offences under Section 420, I. P. C. and Sec tion 63 of the Copyright Act (briefly the Act ). The Magistrate recorded the statement of the complainant Nagin Chand. There after he directed the police to investigate and report. Sub-Inspector Mahesh Kumar Sharma submitted his report. He was also examined as a witness. After considering, the statement of the complainant and the result of investigation, the Magistrate came to the conclusion that there was no sufficient ground for proceeding against the accused for two reasons. First that the complainant had not proved assignment of the copyright of the original authors in his favour and, therefore, he had no locus stand to file a complaint. Second that a consideration of the external and internal features of the two books indicated that they were quite different. The Magistrate, therefore, dis missed the complaint under Section 203, Cr. P. C. It appears that copies of the book New Pattern Gagan Guide' were also seiz ed by the police. The Magistrate also dir ected release of those books but the books could not be actually returned to opposite parties 2 to 4 because of 'the stay order dated July 6, 1981 passed by this Court. The complainant filed criminal revision No. 173/81. The learned II Additional Dis trict and Sessions Judge, summarily dismissed the revision. Being dissatisfied, the complainant has filed this Petition XX under Section 482, Cr. P. C. He has prayed that the Magistrate be directed to summon the accused and proceed further. The first contention of the learned coun sel for the petitioner is that assignment of the copyright in favour of the complainant is not a condition precedent to the filing of a complaint. No such restriction is to be found in Section 63 of the Act which creates an offence on account of infringement of copyright. He has urged that it is suffici ent, for the maintainability of complaint, that it may be shown prima facie, that there has been infringement of copyright. This submission has been disputed on be half of opposite parties 2 to 4 and their learned counsel has contended that no one except the first owner of the copyright can file a complainant under Section 63 of the Act unless he proves assignment of the copy right or a grant of a licence in respect of it in his favour. In this connection, the learn ed counsel has placed reliance on two decisions namely A. Susiah v. S. Muniswamy A. I. R. 1966 Mad. 175, and D. S. G. Siddhanti v. Venkataswara Publishing House Andhra Weekly Reporter 323. In Susiah's case one of the two joint authors had initiated criminal action for infringement of copyright. The question arose whether the criminal case was maintainable without joining the other co-au thor. It was held that one of the authors, who is aggrieved, is entitled to maintain a criminal action for the offence. The ques tion whether a third party could maintain a criminal action for infringement of copy right of the rightful owner, did not arise for consideration in that case. In Siddhanti's case, copyright was claimed in several yearly almanacs and certain civil relied including rendition of accounts, were claimed. One of the questions which arose for consideration was, whether there was as signment of copyright claimed by Siddhanti in the almanacs. The question whether a third party who did not have assignment of the copyright in his favour, could not maintain a criminal action for infringe ment of the copyright, did not arise for consideration in that case. Thus, these authori ties are of little help on the question which has been raised before me by the learned counsel for the petitioner. On a consideration of the scheme of the Act I am clearly of the view that the contention raised by the learned counsel for the petitioner must be answered in the negative. Copyright in a literary or other work is a creature of statute namely the Copyright Act and it is to be enjoyed by virtue of and sub ject to the provisions of the Act. The au thor of the work is the first owner of the copyright therein as provided there under Section 17 of the Act. This copyright can be assigned by the author, the mode of as signment is mentioned in Section 19 of the Act. The assignment is to be in writing signed by the assignor or by his duly au thorised Agent. The Act also provides for grant of licence by the owner of copyright. Section 14 of the Act defines the meaning of copyright. Thus, it is the owner or assignee of licensee of a copyright who can feel ag grieved on account of the infringement of that right in a particular work. Section 63 of the Act is intended to safeguard the right and interest of such author, assignee or licensee. It is open to these persons to ig nore infringement of their copyright in a work. Though Section 63 of the Act does not contain any word suggesting that only the author or assignee or licensee of the copyright can take criminal action for in fringement of copyright, this section should be read to imply that the pirating person shall be liable to punishment for infringe ment only if such author or assignee or licensee seeks to claim protection of law. If such a person, notwithstanding the infringe ment does not choose to take any action for the infringement there is no harm caused to any one else. The in fringement of copyright is not to be regarded as an offence against the society at large, for which any one may move the machinery of criminal law. In fact, the infringement of copyright in a work sug gests that the infringed work is of value to the society. Dissemination of parts of such a work by pirating the same by another au thor, can hardly have an adverse effect on the society. Piracy of a work can adverse ly affect the financial interests of the au thor or assignee or licensee and, therefore, he should alone be held entitled to claim the protection of criminal law it must therefore be held that only the author or assignee or licensee of a work can maintain criminal action under Section 63 of the Act for pro tection of his copyright in that work. The next contention of the learned coun sel for the petitioner is that the copyright in the work "high School Bhautiki' had been assigned by the authors to MS Nagin Prakashan Meerut in the year 1968, and had not been revoked till the time of the filing of the complaint. The Income-Tax Authorities had made a raid in April 1981 and had re moved all the papers including the assign ment and, therefore, the same could not be produced before the magistrate. A copy of the agreement assignment of April 1977 which was in the Income Tax Office was pro duced before the magistrate and he was in formed that the original would be summoned at the time of the trial but the magistrate did not accept the same and wrongly took the view that the complainant had failed to pro duce the written assignment. The magistrate went to the length of not placing on the record, the copy of the agreement assignment of April 1977. The learned counsel has submitted that the copy of the agreement/ assignment of the year 1977 should have been accepted by the magistrate and on its basis he should have taken the view that the complainant was assignee of the copyright and as such entitled to maintain the complaint under Section 63 of the Act. The applicant had filed a letter dated 'november 30, 1980 which was written by one of the authors of the book 'high School Bhautiki' to M/s Nagin Prakashan asking the latter for taking action against the pre sent opposite parties Nos. 2 to 4 for infringement of the copyright in the said work. This letter was proved before the magistrate and marked Ex. 5 on December 2, 1980. A copy of this letter has been filed with the petition as Annexure 'k5. Since this letter did not amount to assignment of the copyright, the learned magistrate was right in not taking it into consideration. It seems that it was for the first time on June 23, 1981 that the complainant made an application seeking permission to file a copy of assignment|agreement dated April 1977 to show assignment of the copyright in the book High School Bhautiki' in his favour. The magistrate rejected it on the ground that that was no stage for filing a copy of the assignment which was not asked for by him. Perhaps this observation also implied that the complainant was required to file the original. Though the insistence of the magistrate for production of the original was not illegal, in the circumstances of the case, he should have accepted even a true copy or asked the complainant to obtain at least a certified copy of the same from the Income Tax Department in whose custody the original was. The rejection on the ground that on June 23, 1981 there was no stage for filing a copy of the assignment was in my opinion not correct. It is true that the evidence had closed on May 29, 1981 and thereafter some dates had been fixed for argument but on June 23, 1981 which was the date for argument, some reasonable time could be allow ed for producing the assignment or its cer tified copy. This was essential because it was being pressed by the accused who had put in appearance that the complainant had no locus stand to institute the complaint in the absence of assignment of the copyright. The order of rejection dated June 23, 1981 cannot, therefore, be taken to be a correct and proper order. The learned counsel for the petitioner had next submitted that the learned magistrate had not understood the meaning of copy right and had on a superficial consideration held that the two books were quite different. The magistrate had not cared to go into the contents of the two books to find out if there was piracy of the subject matter of the bock 'high School Bhautiki' and if so, to what extent and of what nature and whether ii amounted to an infringement of the copy- right. He has added that the decisions S. K. Dutt v. Law Book Co. and others A. I. R. 1954 Alld. 570, and R. G. Anand v. M/s. Delux Films and others A. I. R. 1978 S. C. 1613, were cited before the learned magis trate to show as to what tests should be ap plied to find out if one work has infringed the copyright of another; but the magistrate conveniently ignored those decisions and chose to take into consideration only some unimportant and inconsequential external and internal features of the two books. He has further contended that on a comparison of the two books it would have been amply clear to the learned magistrate that the book 'new Pattern Gagan Guide' contained a large quantity of the material, to be found in the book 'high School Bhautiki. The learned counsel has referred to pages 465, 666. 534, 676 to 680 of the book 'high School Bhautiki' and said that the matter on those pages ver batim tallies with the matter to be found on pages 305, 306, 342, 343 and additional pages 37 to 41 of the pirating book. In R. G. Anand's case (supra) the Sup reme Court considered a number of decisions and then indicated the principles and tests which should be applied for determining whether there has been violatio of copy, right of a work. The Supreme Court held that an idea, principle, theme or subject mat ter or historical or legendry facts being common property cannot, be the subject mat ter of copyright of a particular person. It is always open to any person to choose an idea, principle, theme or subject matter and develop it in his own manner. The viola tion of the copyright in such cases is confin ed to the form, manner and arrangement and expression of the idea, principle, theme or subject matter by the author of the copy righted work. Where two writers write on the same subject similarities are bound to occur because the central idea of both is the same and in such a case the similarities or coincidences by themselves cannot lead to an irresistable inference of plaginism or piracy. In such a case the courts should de termine whether or not the similarities are en fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal limitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. S. K. Dutt's case (supra) was also notic ed by the Supreme Court in K. G. Anand's case. In S. K. Dutt's case the learned Single Judge observed thus:- "in deciding the question whether one book is a copy of the other or not the court has to keep in mind the two features of the two books namely, the external and the internal features. By external features is meant, the get-up and the ''overall scope of the publication. By internal features is meant the general lay out of the subject-matter, the manner of the treatment of the subject-matter and the amount of material contained in the book. " The principles enunciated by the Sup reme Court are general in nature and while applying these principles to a particular case of violation of copyright, the nature of the subject-matter dealt with in the book and the class of readers and the purpose for which it is meant, should also be taken Into consideration, It is obvious that no person can claim copyright in the principles, theo ries, definitions, formulae and signs to be dealt with in a Science Book meant for use of students preparing for a particular exa mination having a definite syllabus. Such books written by two different writers, are bound to have similarities not only in res pect of the treatment of the scientific prin ciples, theories, definitions, formulae and signs but also in regard to diagrams and model questions to be set on various aspects of the subject matter. Even the language employed is bound to be similar. In such books there is great need to express various ideas and problems in a language which is precise and concise as well as, simple of comprehension. A book on Physics or Che mistry subject, on account of the special na ture of the subject and the class of readers and purpose for which it is meant, would leave very little room for a personalised treatment of the subject as regards form, manner, arrangement or expression. A writer dealing with a Biology subject, can have greater freedom in these matters but the same cannot be indulged in by a writer on Physics or Chemistry subject, while wilting a book for use of students of a parti cular educational level. These considera tions should be borne in mind while consi dering the question of violation of copyright in a Physics book by the writer of another Physics book. Dealing with the question whether the book of opposite parties Nos. 2 to 4 had violated the copyright of the book of the complainant, the learned magistrate observed, thus: "in deciding whether a book is a copy of another the external and internal fea tures of the books should be considered. The name of the books in question on the title cover is altogether different. The colour of the title cover is also different. New Pattern Gagan Guide contains 394 plus 84 pages while High School Bhautiki contains 692 pages which shows that New Pattern Gagan Guide is much smaller in size than High School Bhautiki New Pattern Gagan Guide is written in the form of questions and answers just to help the students to prepare for examination while the High School Bhautiki is a text book. The external and internal features of boil the books are quite different. No offence under Section 420 I. P. C. has also been made out. " Besides this, in the beginning of his or der the learned magistrate said that he had considered the statement of the complainant and the result of the investigation made un der Section 202 Cr. P. C. and was of the opi nion that there was no sufficient ground for proceeding against the accused. The above quoted paragraphs of the or der of the magistrate no doubt give the impression that the magistrate had considered only four things namely:- (1) The names of the two books are altogether different. (2) The colour of the title covers of the two books are different. (3) The number of pages in the High School Bhautiki is 92 while in the other book it is 394 plus 84 pages, and thus, the other book is much smaller in size-- (4) High Srhool Bhautiki is Text-Book while the other book in written in the form of questions and answers to help the students to prepare for examination. But the observation in the first para graph of the order shows that the learned magistrate had also considered the result of investigation made by the police under his direction which was given under Section 202 Cr. P. C. The entire record of the investiga tion was submitted by Sub-Inspector Mahesh Kumar to the Magistrate. Though the magistrate has not discussed the result of investigation in his order at length, it can not, in these circumstances he said that the Magistrate had not considered this material in coming to his conclusion that the two books are quite different. The finding that the two books are quite different and, there fore, there is no question of the infringe ment of copyright of the complainant, is a finding of fact. In proceedings under Section 482, Cr. P. C. ordinarily the material con cerning a finding of fact is not to be review ed and reappraised. In the instant case too, I do not propose to go into a detailed dis cussion of that material to examine the pro priety and correctness of the finding of the learned Magistrate. However, I would like to make a few observations, since the Magistrate did not choose to discuss the ma terial which came on record as a result of the investigation carried out by the police. It is noteworthy that in the complaint the complainant asserted that the accused had in parts stolen exactly the same questions, the same language, the same figures etc. , from his book. It was also said that the stolen portions were to be found in Chapters 1 and 7 and 41 and 42 of the book published by the accused. In the statement under Section 200, Cr. P. C. the complainant said that the pirated material was to be found in Chapters 1 to 7 and 41 and 42 of the book published by the accused. Each of the two books contains 42 Chapters and the arrangement of the Chapters is the same. The report of the Sub- Inspector shows that perhaps the number of Chapters and the arrangement of the subject-matter of each Chapter is to be the same in each book on the subject in view of certain guide lines laid down by the U. P. Board. Chap ters 1 to 7 cover 110 pages and Chapters 41 and 42 cover 26 pages of the book of the complainant, while these Chapters of the other book cover only 91 and 19 pages res pectively. These pages contain a number of diagrams, questions and answers. Some of the questions are those which were set in previous formulae. No doubt at places the language employed in the two books in these parts is identical but on account of all these similarities it cannot be said that there has been piracy of a substantial am ount of the material of the book of the complainant by the accused. Here it will not be out of place to point out that the Sub-Inspector took pains to compare the book of the complainant with a third book written by Messrs. Garg and Goyal and he found that a large number of diagrams and some illustrations and questions in the two books were similar. When the Sub-Inspec tor Mahesh Kumar was examined as a wit ness by the complainant under Section 202, Cr. P. C. in reply to a question he said that about 60% material in the two books was similar. This was a general statement and covered diagrams, questions answers and discussion of the various scientific principles, theories, definitions and formulae. Hence the statement of this witness regarding 60% similarity of the material is not to be taken literally. Having regard to the nature of the subject dealt with in the two books and the limitations under which the writer has to work, it cannot be said that the offending book namely 'new Pattern: Gagan Guide' is a substantial imitation of the "high School Bhautiki' and amounts to the violation of the copyright in that work. Hence the finding of the learned Magistrate that the two books were quite different was correct, he was right in taking the view that no offence under Section 420, Cr. P. C. was also made out. He was right in dismissing the complaint under Section 203, Cr. P. C. In view of the forge going discussion I hold that the impugned order does not suf fer from any infirmity and this petition has no merit. Accordingly the petition is dismissed. The order staying, release of the seized books is hereby vacated. .