Chapter V

SYNOPSIS
Chapter V - Judicial Creativity of Patent and Copy Right Law
5.1 Introduction
5.2 Case laws on Patent Law
5.3 Case Laws on Copy Rights Law

Judicial Creativity of Patent and Copy Right Law

Legal intricacies pertaining to the Intellectual property issues have given rise to a

huge quantum of litigation with the radical transformation of science and

technology. To that effect, the legal pursuit of statutory framework to encompass

such myriad issues, judiciary has played a pivotal role. Being globally persistent

nature, intellectual property has broken the barriers of the municipal jurisdictions.

Thus, various issues of the Patent and Copyright with their complex nature need

to be taken care.

As rightfully quoted by, Thomas Jefferson440

440
Article 1, Section 8, Clause 8, The Founder’s Constitution, Document 12, Thomas Jefferson to Isaac
McPherson
13 Aug. 1813, Available at - http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html last seen
on 6/6/2016

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"If nature has made any one thing less susceptible than all others of exclusive

property, it is the action of the thinking power called an idea, which an individual

may exclusively possess as long as he keeps it to himself; but the moment it is

divulged, it forces itself into the possession of everyone, and the receiver cannot

dispossess himself of it. Its peculiar character, too, is that no one possesses the

less, because every other possesses the whole of it. He, who receives an idea

from me, receives instruction himself without lessening mine; as he who lights his

taper at mine, receives light without darkening me. That ideas should freely

spread from one to another over the globe, for the moral and mutual instruction

of man, and improvement of his condition, seems to have been peculiarly and

benevolently designed by nature, when she made them, like fire, expansible over

all space, without lessening their density at any point, and like the air in which we

breathe, move, and have our physical being, incapable of confinement or

exclusive appropriation. Inventions then cannot, in nature, be a subject of

property." Thus, opinion of Thomas Jefferson has been guided the policy makers

since two centuries to give effect to the utmost glorious manifestation of the

intelligence of the mankind. In most common parlance, Intellectual Property (IP)

can be loosely defined as creations of human mind.441

441
definition given by WTO, available at http://www.wto.org, last seen on 5/6/2016

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On account of the myriad complexities of patent and copyright laws in

contemporary era, the judiciary has initiated a most rationale debate and thereby

guided the law on the blending contours of patent and copyright issues across

the globe. The following are the cases which are dealt with the patent and copy

right in India through judicial activism. In the case of Hindustan Lever Limited

v. Godrej Soaps Limited, AIR 1996 Cal 367, The Court held that the plaintiff in

a patent case must show a prima facie case of infringement and further that the

balance of convenience and inconvenience is in his favour. Where the alleged

infringement is not novel and the patent has not yet been exploited there is no

question of loss of employment or fall in revenue and the damages if suffered

could be provisionally quantified. It could not be said that the balance of

convenience was definitely in favour of an interlocutory injunction. Further as

in the case of Schneider Electric Industries SA v. Telemecanique & Controls

(I) Ltd., 2000 (20) PTC 620 (Del), Delhi High Court held that an interlocutory

application in a suit for infringement of a registered patent, defendant’s plea that

patents are invalid as patented features are in the nature of obvious

improvements cannot be considered at this stage in the light of conflicting

expert evidence. The date of publication of grant of patent in the Official

Patent office journal is the date of grant for the post-grant opposition. This

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has been decided in Dr Snehlata C Gupte v Union of India and seven

others(group of petitions)W.P.(C) Nos. 3516, 3517,5422, 5423 of 2007 &

10399, 10400 & 10450 of 2009 & 1020 of 2010 (18 September 2013). However,

it may be noted that the date of patent under Section 45 for calculating the date

of expiry of the patent and for filing of infringement suits is considered to be

dated as the date on which the application for patent was filed. The Supreme

Court of India has clearly laid down the following guidelines to determine

infringement of a patent based on Biswanath Prasad Radhey Shyam v.

Hindustan Metal Industries. AIR SC 1978.

(i) Read the description and then the claims;

(ii) Find out what is the prior art;

(iii) What is the improvement over the prior art;

(iv) List the broad features of the improvement;

(v) Compare the said broad features with the defendant’s process or apparatus;

and

(vi) If the defendant’s process or apparatus is either identical or comes

within the scope of the plaintiff’s process or apparatus, there is an infringement.

As discussed above the Gujarat high court rightly pointed out that Cadila

Pharmaceuticals Ltd. v. Instacare Laboratories Pvt. Ltd., 2001(21) PTC 472

(Guj), the Gujarat High Court observed that Section 107 expressly empowered

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a defendant to defend any suit for infringement of a patent. Every ground on

which a patent could be revoked under Section 64 was available as a

ground of defense. Though the defendant had chosen not to give notice of

opposition under Section 25 of the Act or to apply for revocation under Section

64 of the Act, he still had the right to defend his action on any ground on which

the patent could be revoked under Section 64 of the Act. Interim Relief in

Patent cases: The Supreme Court of India in Wander Ltd. v. Antox India (P)

Ltd. (1990) Supp. S.C.C. 727 laid down the principles for the granting of an

interim injunction. For the grant of such ad interim and interim orders, the plaintiff

has to show that he has a prima facie case, that the balance of convenience is in

his favor, and the hardship suffered by the plaintiff would be greater if the order is

not granted. If the plaintiff is able to convince the Court of these points, then

plaintiff can obtain an ad interim and interim injunction within a couple of days of

filing of the suit. Some courts also grant ex parte injunctions if a strong case is

made.

In the matter of Time Incorporated v. Lokesh Srivastava and Anr.2005 (3)

PTC 3 (Del) the Delhi Court observed:

“This Court has no hesitation in saying that the time has come when the Courts

dealing actions for infringement of trademarks, copy rights, patents etc. should

not only grant compensatory damages but award punitive damages also with a

view to discourage and dishearten law breakers who indulge in violations with

impunity out of lust for money so that they realize that in case they are caught,

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they would be liable not only to reimburse the aggrieved party but would be liable

to pay punitive damages also, which may spell financial disaster for them.”

J. Mitra And Co. Pvt. Ltd. vs Kesar Medicaments And Anr.148 (2008) DLT

198, MIPR 2008 (2) 1, 2008 (36) PTC 568 Del, The present matter is concerned

with a claim of infringement of the patent of the plaintiff in respect of 'a device for

detection of antibodies to HepatIT is C Virus (for short, HCV) in human serum

and plasma'. The early detection of HCV is stated to be critical as there is no

vaccine for the same.

The plaintiff is stated to be a Private Limited Company engaged in the

manufacture and sale of diagnostic kits and is also stated to be a holder of

various patents, designs and trademarks in respect of its products. The plaintiff's

application (I.A. No. 11883 of 2006) under Order 39, Rules 1 and 2 and Section

151 of the Civil Procedure Code is for the issuance of a temporary injunction

restraining the defendants from infringing the plaintiff's Patent No. 194638 dated

22nd September, 2006 in a suit for permanent injunction, rendition of accounts

and damages. After hearing both sides the court held that :

“The material on record does not show prima facie that any fourth generation

product has been worked by the plaintiff prior to its patent application. The use of

patent being limited, irretrievable prejudice will be caused to the plaintiff if interim

orders are not granted. The balance of convenience lies in favor of the plaintiff as

the plaintiff's patent cannot be permitted to be infringed. Thus, the application of

the plaintiff under Order 39 Rules 1 and 2 of the said Code is allowed and the

defendants, their promoters, directors, servants, agents, dealers, distributors are

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retrained from manufacturing, selling, offering for sale or in any other manner

dealing with the impugned product SIGNAL HCV or any other product violative of

the plaintiff's patent No. 194638.”

Lee Pharma Limited vs. AstraZeneca AB, C.L.A. 1 of 2015 before the

Controller of Patents, Patents Office, Mumbai

Recently, Lee Pharma, a Hyderabad based Indian Pharma Company, filed a

Compulsory Licensing (CL) Application for selling and manufacturing the

compound on June 29, 2015 at the Patent office, Mumbai. The CL was filed

against one of the patented drug 'Saxagliptin' protected under the Patent number

206543 in the name of AstraZeneca with tile as "A CYCLOPROPYL-FUSED

PYRROLIDINE-BASED COMPOUND". As informed the 'Saxagliptin' was used

for treating Type II Diabetes Mellitus.

Section 84(1) of Patents Act 1970 states that after the expiration of three years

from the date of grant of patent any person may make an application for grant of

compulsory licence on three grounds - the reasonable requirements of the public

have not been satisfied or the patented invention is not available to the public at

an affordable price or the patented invention is not worked in the territory of

India3. According to the notice issued by the Patent office in August, 2015 the

Controller has informed that the Lee Pharma failed to make out prima facie case

for the CL application. Various reasons have been mentioned by the Controller

where the Lee Pharma has failed to be as prima facie in the said CL application.

Earlier in the year 2014 Lee pharma has requested the AstraZeneca for license

of the patented drug 'Saxagliptin'. The AstraZeneca then replied in response to

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the Lee pharma letter and provide the clarification for not giving any license along

with the details of the availability of said drug. Further for not receiving the

appropriate reply from the Astra Zeneca, despite of the fact that AstraZeneca has

send the email reply to Lee and Lee pharma was in fact that no reply has been

received from AstraZeneca, the Lee pharma send many reminders to

AstraZeneca and later approached to the Patent office for seeking the grant of

compulsory license.

As per the Controller's decision in holding the application, the first request for

license made by the Lee pharma to the AstraZeneca, was more than 13 months

prior to the filing of the application at the Patent office. As per the time frame

mentioned in section 84(4) of the Patents Act, 1970 is 06 months which has

elapsed in the subject case without any efforts being successful. This is the first

reason for holding the CL application of Lee pharma and denied the request.

In a recent patent infringement case Teva Api India Pvt. Ltd. & Anr. v. Merck

Sharp & Dohme Corp & Anr.FAO (OS) (COMM) 34/2016, the Division Bench of

the Delhi High Court vide its order dated May 30, 2016 dealt with the issue of

expeditious hearing and disposal of applications seeking vacation of ex-parte ad

interim injunctions within 30 days, as stipulated by the Indian Code of Civil

Procedure, 1908

The respondents originally sued the appellants alleging infringement of their

rights flowing from Indian Patent No. 209816 concerning a molecule having an

International No-proprietary Name, SITAGLIPTIN. It was the case of the

respondents that the combination of Sitagliptin and another drug known as

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Metformin HCL is sold under the trademark JANUMET, while stand-alone

Sitagliptin was sold under the trademark JANUVIA. The respondents alleged that

the appellants are manufacturing and selling its patented product.

DECISION OF THE DIVISION BENCH OF THE DELHI HIGH COURT

That the learned Single Judge ought to have made an attempt to decide the

interim applications expeditiously, especially keeping in mind that an ex-parte ad-

interim order was issued. The applications filed by the appellants simply stated

that the offending goods were exported, not by way of a commercial sale, but to

obtain regulatory approval in the countries abroad, and this aspect of the matter

only required a short and a crisp hearing not lasting beyond 15-20 minutes. It

was held that the learned Single Judge had only to see the documents presented

by the two groups. That the continuation of the injunction granted is not causing

any injuries to the appellants because the marketing authorization which they

require would at best take 2-3 years, and the respondents' patent would lapse in

the year 2022. That since the appellants have not even filed their written

statement, and adjudication of the injunction application requires a perusal of the

documents filed by the parties, within a week the appellants shall file their written

submission along with the documents relied upon. Within three weeks thereafter,

the respondents shall file the replication along with such further documents which

the respondents desire.

In the case of Symed Labs Ltd. vs Glenmark Pharmaceuticals Ltd. CS (OS)

NO. 678/ 2013 in the HC of Delhi, On 17 July 2015in the very recent decision,

the Delhi High Court has ordered that Glenmark shall use its process which is

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virtually identical to the Ujohn process as indicated in the expert report of Prof.

Steven W. Baldwin (filed by Glenmark). The Court noted that the expert report

indicates that the appellant (Glenmark) process and the Uphohn process are

different from the process of preparation of Linezolid, which is employed by the

respondent (Symed). It has been agreed by both the parties that the appellant

(Glenmark) shall manufacture Lineolid through its process indicated in the expert

report which does not infringe upon the patented process of Symed as indicated

in the report. Further Telefonktiebolaget Lm Ericsson(Publ) Vs. Lava

International Limited Cs (Os) 764/2015, In The Hc Of Delhi, The most recent

litigation involves a case against Lava International Limited, where Ericsson once

again claimed its SEPs relating to AMR, GSM and EDGE technologies. At the

first couple of hearings, Lava International claimed that Ericsson refused to

reveal information about its agreements with other parties. While the suit is still at

its initial stage, the parties have been directed to make efforts towards resolving

their dispute but have failed to do so and thus the matter is now scheduled to be

taken up on merits.

Telefonktiebolaget Lm Ericsson(Publ) Vs. Gionee communication

equipment Co. Ltd. And Anr.Cs (Os) No. 2010 Of 2013, In The Hc Of Delhi,

The third “Standard Essential Patents” litigation yet again involves the suit filed

by Ericsson against Gionee and claiming infringement of the same SEPs over

which Micromax was sued earlier. In October 2013, the Delhi High Court ordered

Gionee to make interim royalty payments for its sales in India. The royalty rates

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were set on the basis of the interim royalty rates awarded to Ericsson in March

2013 in the patent infringement suit against Micromax.

The next judicial opinion for the judicial activism is that the cases relating to

COPYRIGHTS-

In Kartar Singh Giani v. Ladha Singh & Others AIR 1934 Lah 777, Copyright

is a right given by the law to creators of literary, dramatic, musical and artistic

works and producers of cinematograph films and sound recordings. In fact, it is a

bundle of rights including, inter alia, rights of reproduction, communication to the

public, adaptation and translation of the work. It means the sole right to produce

or reproduce the work or any substantial part thereof in any material form

whatsoever.

In consonance with this, in Hawkins Cookers Ltd. v. Magicook Appliances

Co., 00(2002) DLT698 the judicial activism can be seen as , the main objective

of the Act involved in this case was to give protection to the owner of the

copyright from the dishonest manufacturers, who try to confuse public and

make them believe that the infringed products are the products of the owner.

Further, it wants to discourage the dishonest manufacturers from enchasing the

goodwill of the owner of the copyright, who has established itself in the market

with its own efforts.

Similarly in M/s Mishra Bandhu Karyalaya & Others v. Shivaratanlal

Koshal AIR 1970 MP 261, it has been held that the laws of copyright do not

protect ideas, but they deal with the particular expression of ideas. It is always

possible to arrive at the same result from independent sources. The rule

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appears to be settled that the compiler of a work in which absolute

originality is of necessary excluded is entitled, without exposing himself to

a charge of piracy, to make use of preceding works upon the subject,

where he bestows such mental labour upon what he has taken, and

subjects it to such revision and correction as to produce an original result.

In relation with this, the issues as to whether one book is a copy of the other or

not, it was held in S K Dutt. V. Law Book Co. & Others AIR 1954 All 57, in

deciding the question whether one book is a copy of the other or not the Court

has, in one view, to keep in mind the two features of the two books, namely, the

external and the internal features. By external features means the get-up and the

‘overall’ scope of the publication. By internal features means 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.

In furtherance to this, in Macmillan and Company Limited v. K. and J. Cooper,

AIR 1924 PC 75, it was held that the word ‘original’ does not mean that the work

must be the expression of original or inventive thought. Copyright Acts are not

concerned with the origin 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 the expression of the thought; but the Act

does not require that the expression must be in an original or novel form,

but that the work must not be copied from another work—that it should

originate from the author.

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The judicial activism has taken its stance in Camlin Private Limited v.

National Pencil Industries, (2002) Del, decided by Delhi High Court,

wherein it was held that copyright subsists only in an original literary work. But

it is not necessary that the work should be the expression of the original or

inventive thought, for Copyright Act are not concerned with the originality

of ideas, but with the expression of thought, and in the case of a literary

work, with the expression of Thought in print or writing. Originality for the

purpose of copyright law relates to the expression of thought, but such

expression need not be original or novel. The essential requirement is that

the work must not be copied from another work but must originate from the

author.

Similarly, in an important case of Associated Publishers (Madras) Ltd. v. K.

Bashyam alias ‘Arya’ & Another AIR 1961 Mad. 114 (1962) 1 Mad LJ 258,

the word “artistic” is merely used as a generic term to include the different

processes of creating works set out in the definition section and that provides

that a work produced by one such processes, and that its creation

involved some skill or labour on the part of the artist, it is protected.

In furtherance with this, in the case of Challenger Knitting Mills v. Kothari

Hosery Factory 2002 PTC (24) 756 Del. (Reg.) the judiciary has laid down that,

what is required for copyright protection in an artistic work is ‘originality’. It

is not originality of idea or the theme behind the work but the expression of the

work which requires being original. The originality required as per the Act is a

minimum amount of originality. What is prevented under the Copyright Act is

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making of copies without permission of the author. A copy is one which is either a

reproduction of the original or a work which closely resembles the original.

The expression “cinematograph film” in Section 2(f) of the Copyright Act, 1957

includes video film also which has been recorded in VCR. Entertaining

Enterprises& Others v. State of Tamil Nadu & Another AIR 1984 Mad.

278

In an instant case by the Bombay High Court in Fortune Films International v.

Dev Anand & Another AIR 1979 Bom.17, has held that in view of the definitions

of “artistic work”, “dramatic work” and cinematograph film”, it would appear that

the Copyright Act, 1957 does not recognize the performance of an actor as ‘work’

which is protected by the Copyright Act.

Similarly, the scope of the powers of the Copyright Board has been explained in

the case of Shri Urmila Charan Gupta v. Shri Charushila Sharan Gupta

and Sumitra Nandand Gupta 1983 PTC 84. In this case it has been

held that if the Board, in its powers, thinks fit or agrees to dispose of the

matter of all the 38 books on a single application, no one else is given the

right to question its propriety.

Whilst emphasizing the judicial scrutiny, the judiciary in case of Khemraj

Shrikrishnadass v. M/s Garg & Co. and Another AIR 1975 Del 130, focused

on consideration of Sections 17 and 18 of the Copyright Act, 1957 which

show where the copyright vests. If a work is done by an author for a

consideration for a publisher, the copyright in it would normally vest in the

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publisher subject to any contract to the contrary, as is provided by Section 17 of

the said Act. It can be legitimately said that this Section has been inserted in the

Act of 1957, but the rule of law has been same even prior to this statutory

provision. Secondly as provided by Section 18, the copyright could be assigned,

and if it is so done it would be vested in the purchaser.

Similarly, in Setty v. Dr. Suryakantha U. Kamath K.A. Venugopala Setty v.

Dr. Suryakantha U. Kamath AIR 1992 Kar 1 the Section 19 of the Act provides

that an assignment of copyright should be in writing signed by the owner of the

copyright. Mere acceptance of remuneration or delivery of manuscript does not

constitute an assignment of copyright. Oral assignment is invalid and it is

impermissible in law.

Similarly in, Srimagal and Co. v. Books (India) Pvt. Ltd. & Others AIR

1973 Mad 49: (1972) 2 Mad LJ 610 the Section 19 requires that the assignment

should be in writing signed by the assignor or by his duly authorized agent if the

assignment appears from any document and it is signed by the assignor or

by his authorized agent the statutory requirement is fulfilled.

In consonance with this, Chapter X of the Act containing Sections 44 to 50A deal

with various aspects of registration of copyright. The mechanism for registration

of copyright has been contemplated under Section 44 of the Act. It is evident

from the provisions of the aforesaid section that registration of the work under the

Copyright Act is not compulsory and is not a condition precedent for

maintaining a suit for damages, if somebody infringes the copyright.

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Registration is not a prerequisite for acquisition of a copyright (Nav Sahitya

Prakash & Others v. Anan Kumar & Others AIR 1981 All 200).

In consonance with this under R. Madhavan v. S K Nayar AIR 1988 Ker

39, the Sections 44 and 45 of the Act is only an enabling provision and the

provisions contained therein do not affect common law right to sue for

infringement of the copyright, therefore, registration of the work under the Act is

not compulsory and that registration is not a condition precedent for

maintaining a suit for damages for infringement of copyright

Similarly, Satsang and Another v. Kiron Chandra Mukhopadhyay & Others

AIR 1972 Cal 533 wherein, there is no section in the Copyright Act, 1957, to

the effect that the author can have no right or remedy unless the work is

registered.

In Jayanthilal M. Munoth and Ors. v. M. Durairajan, [2006] 132 Com Cases

797(Mad) where a petition was filed for infringement of copyright and the same

was challenged by the respondents on the ground that that there was no

registration of copyright. The Court held that registration of copyright was

not a pre-condition for filing a suit or for launching prosecution for violation of

copyright.

Whereas, In Penguin Books Ltd., England v. M/s India Book Distributors &

Others AIR 1985 Del. 29, it was observed that whenever there is

misappropriation of intellectual property of which the primary beneficiary is

the copyright owner there is infringement of copyright. Copyright is a

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property right. Throughout the world it is regarded as a form of property

worthy of special protection in the ultimate public interest. The law starts from the

premise that protection would be as long and as broad as possible and

should provide only those exceptions and limitations which are essential in the

public interest.

In furtherance with this, the concept of honest and concurrent user found in

Section 12(3) of the 1958 Act for securing concurrent registration is totally

irrelevant as defence in a suit for infringement and copyright arising out of

a different Act, namely, 1957 Act, as held in M/s Power Control Appliances &

Others v. Sumeet Machines Pvt. Ltd. (1994) 2 SCC 448).

In Ushodaya Enterprises Ltd v T.V. Venugopal, 2001 PTC 727, the

division bench of the Andhra Pradesh High Court held that even though the

defendant has registered the carton under the Trademark Act, that may not come

to the aid of the defendant as the case of the plaintiff is that it owns a copyright of

the artistic work under the Copyright Act and no registration is required for the

same. Thus the court held that the plaintiff was justified in alleging infringement

of his artistic work.

As rightly pointed out by the Copyright Board that there can be no copyright

in the word or words, but the right can only be in the artistic manner in which the

same is written, and in this case the works were totally dissimilar.

[Associated Electronic& Electrical Industries (Bangalore) Pvt. Ltd. v. M/s

Sharp Tools AIR 1991 Kar 406].

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As rightly pointed out in, M/s. Video Master& another v. M/s. Nishi

Productions& others, 1998(3) Bom. CR 782 the given case examined the

circumstances under which the exhibition of film by various modes infringed

copy rights. The plaintiff was assigned video playback and cable T.V rights and

he objected to the defendants being given the satellite broadcasting rights. The

Court observed that there were various modes of communication to public and

each one was separate and divisible. It was held that each of the modes of

communication could exist in different persons at the same time without infringing

copy right of the other.

Similarly, the Bombay High Court in Hindustan Lever Ltd., v. Nirma Private

Limited, Ahmedabad, AIR 1991 held that the dissimilarities were totally

inadequate to wipe out general impression of the unwary purchaser. Thus,

there was prima facie infringement of copyright. The case dealt with the

infringement of the copyright in the label when there were only few changes

made in the colourable imitation of label.

In furtherance with this, in Eastern Book Company & Others v. Navin J.

Desai & Another 2001 PTC (21) 57 Del., Delhi High Court has held: Copyright

is a limited monopoly having its origin in protection. There cannot be any

monopoly in the subject matter which the author has borrowed from public

domain. Others are at liberty to use the same material. Material in which

no one has a copyright is available to all. Every man can take what is

useful from the, improve, add and give to the public the whole comprising

the original work with his additions and improvements. Under the guise of the

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copyright, the plaintiffs cannot ask the Court to restrain the defendants from

making this material available to public. Judgements/orders published by

the plaintiffs in their law reports ‘Supreme Court Cases’ is not their original

literary work but has been composed of, complied and prepared from and

reproduction of the judgements of the Supreme Court of India, open to all.

Merely by correcting certain typographical or grammatical mistakes in the raw

source and by adding commas, full stops and by giving paragraph numbers to

the judgement will not their work as the original literary work entitled to protection

under the Copyright Act. Plaintiffs, therefore, have no copyright in the

judgements published in their law reports. There being no copyright in the

plaintiffs, there is no question of the defendant infringing any alleged

copyright. Plaintiffs have failed to make out any prima facie case in their

favour and are, therefore, not entitled to any relief in the application.

Wherein, under Godrej Soaps (P) Ltd. v. Dora Cosmetics Co.2001 PTC (21)

407 Del it was held that the Delhi High Court held that where the carton was

designed for valuable consideration by a person in the course of his

employment for and on behalf of the plaintiff and the defendant had led no

evidence in his favour, the plaintiff is the assignee and the legal owner of

copyright in the carton including the logo.

Similarly, in Zee Telefilm Limited v. Aalia Productions& Others 2000

PTC 382 Bom.there was a dispute relating to transfer of copyright in TV

serial ‘India’s Most Wanted’. It was held that in the absence of any specific rights

assigned by the defendants in respect of concept/script/story/synopsis/structure

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and/or format of programme, the plaintiffs cannot seek injunction against the

defendant. The assignment agreement executed between the plaintiff and the

defendants as regards structure, format, concept, synopsis and script vague and

uncertain, the plaintiffs are not entitled to any interim relief.

In consonance with this, under the case of Hawkins Cookers Ltd. v.

Magicook Appliances Co., 100(2002) DLT698 discussed the grant of

permanent injunction to the plaintiff for restraining the defendant from

using a label for pressure cookers, which was deceptively similar to the

registered trade mark ‘HAWKINS’ of the plaintiff – On non-appearance of the

plaintiff, an ex-parte order was passed and it was ruled that, the unjust

enrichment by the infringing party, was a mischief and the plaintiff was to

be protected from it as per Section 55 of the Copyright Act, 1957. Hence

permanent injunction was granted.

Similarly under Section 54 defines the term owner of copyright. In Rupendra

Kashyap v. Jiwan Publishing House 1996 PTC (16) 439 Del., it was held

that CBSE is a public undertaking; examination papers are literary work

made under the direction and control of CBSE and applicability of Section

17(dd) of Copyright Act is squarely attracted to the facts of the case. CBSE is

the first owner of the copyright in the examination papers on which examinations

are conducted by it.

In another case Allahabad high Court has held that the copyright in the

question papers set for the High School and Intermediate examinations

belongs to the paper-setters and since this copyright neither belonged to nor has

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been assigned to the Board, the notification which declares that ‘copyright of the

question papers set at the examinations conducted by Board shall vest in

the Board’ is clearly bad. Simply by issuing a notification under the

Intermediate Education Act, the State Government could not arrogate to itself or

to the Board a right which neither of them possessed under the law relating to

copyright, embodied in the Copyright Act of 1957 (Agarwala Publishing House

v. Board of High School and Intermediate Education & Another AIR 91:

1996 All LJ 550).

Besides traditional remedies the non-traditional forms of remedies like,

Anton Piller Order, interlocutory injunction, etc, have assumed more popularity

nowadays. The first use of such order was made by Templeman J, in EMI v.

Pandit, (1975) 1All E R 418, to protect the offending evidences from being

destroyed. However, it was only after the case of Anton Piller KG v.

Manufacturing Process,(1976) 1All E R 779.418, that it gained recognition and

popularity.

The orders in line of Anton Piller order are made under the head of civil

remedies. The application of Anton Piller order in India is still in a nascent

stage. There is not much case-laws debating over the aspects of Anton

Piller order. One of the earliest case that dealt with the concept of Anton Piller

order, though cursorily was National Garments v. National Apparels,(1990)

PTC98.

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In Bucyrus Europe Ltd. v. Vulcan Industries Engineering Co. Pvt. Ltd.,

2005(30) PTC 279, the court observed that an Anton Piller order can be passed

in the following situations:

• Where the plaintiff has an extremely strongly prima facie case;

• Where the actual or potential damage to the plaintiff is very serious.

• Where it was clear that the defendant possessed vital evidence; and

• There was a real possibility that the defendant might destroy or dispose of such

material so as to defeat the ends of justice.

In, R G ANAND v M/S DELUX FILMS 1978 AIR 1613 [India]

Thus, the position appears to be that an idea, principle, theme, or subject matter

or historical or legendary facts being common property cannot be the subject

matter of copyright of a particular person. 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. Where two writers

write on the same subject similarities are bound to occur because the central

idea of both are the single but the similarities or coincidences by themselves

cannot lead to an irresistible inference of plagiarism or piracy. Take for instance

the great poet and dramatist Shakespeare most of whose plays are based on

Greek-Roman and British mythology or legendary stories like Merchant of

Venice, Hamlet, Romeo Juliet, Julius Caesar etc. But the treatment of the

subject by Shakespeare in each of his dramas is so fresh, so different, so full of

poetic exuberance, elegance and erudition and so novel in character as a result

of which the end product becomes an original in itself. In fact, the power and
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passion of his expression, the uniqueness, eloquence and excellence of his style

and pathos and bathos of the dramas become peculiar to Shakespeare and

leaves precious little of the original theme adopted by him. It will thus be

preposterous to level a charge of plagiarism against the great playwright. In fact,

throughout his original thinking, ability and incessant labor Shakespeare has

converted an old idea into a new one, so that each of the dramas constitutes a

master-piece of English literature. It has been rightly said that “every drama of

Shakespeare is an extended metaphor”.

In furtherance with this under the case of AMAR NATH SEHGAL v UNION OF

INDIA 2005 (30) PTC 253 [India] it was held that, in the material world, laws are

geared to protect the right to equitable remuneration. But life is beyond the

material. It is temporal as well. Many of us believe in the soul. Moral rights of

the author are the soul of his works. The author has a right to preserve, protect

and nurture his creations through his moral rights.

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