Bharatiya Nagarika Suraksha Sanhita, 2023

Salient Features & Major Changes from Cr.P.C.

(By Saji Koduvath, Advocate, Kottayam)

Introduction

3 New Acts of 2023

•    Bharatiya Nyaya Sanhita, 2023,

•    Bharatiya Nagarika Suraksha Sanhita, 2023,

•    Bharatiya Sakshya Adhiniyam, 2023

BNSS – Major Changes from Cr.P.C.

CHAPTER I: PRELIMINARY

CHAPTER II: CONSTITUTION OF CRIMINAL COURTS AND OFFICES (S.6 – 20)

CHAPTER III: POWER OF COURTS (Ss. 21 to 29)

CHAPTER V: ARREST OF PERSONS (S. 35 – 62)

CHAPTER VI: PROCESSES TO COMPEL APPEARANCE  (S.63 – 93)

CHAPTER VII: PROCESSES TO COMPEL THE PRODUCTION OF THINGS  (S. 94 -110)

CHAPTER X: ORDER FOR MAINTENANCE OF WIFES, CHILDREN AND PARENTS (S.144 – 147)

CHAPTER XII: PREVENTIVE ACTION OF POLICE (S.168 -172)

CHAPTER XIII: INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE (S.173 – 196)

CHAPTER XIV: JURISDICTION OF THE CRIMINAL COURTS IN INQUIRIES AND TRIALS

CHAPTER XIX – TRIAL BEFORE A COURT OF SESSION (S.248 – 260)

CHAPTER XXII – SUMMARY TRIALS (S. 283 – 288)

CHAPTER XXIII: PLEA BARGAINING (S. 289 – 300)

CHAPTER XXV: EVIDENCE IN INQUIRIES AND TRIALS (S. 307 – 336)

CHAPTER XXVI: GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS (S. 337 to 366)

CHAPTER XXIX: THE JUDGMENT (S.392 – 406)

CHAPTER XXXIX: MISCELLANEOUS (S.520 – 531)

Epitome

Major changes include –

• 1. Use of technology and electronic mode

      •  in Trials

      •  in Search and Seizure

      •  in Recording certain FIRs.

• 2. Mandates collection of forensic evidence in investigation (after effecting Notification thereof within 5 years) – for offences punishable for seven years or more.

• 3. Deadlines –

      •  Judgment within 30 days of the arguments (extendable up to 60 days);

       •  Information to the victim as to the progress of the investigation within 90 days, and

     •  Framing of charges by a sessions court within 60 days of the first hearing on                        such charges.

• 4. Trial, even in absence of a proclaimed offender.

• 5. Introduced:

•  ‘Preliminary inquiry’ before filing FIR (for offences punishable for 3 years or more but less than 7 years).

•  Concept of Zero FIR (“irrespective of the area”) and e-FIR.

•  6. Further investigation -

•  permission of magistrate is not needed after a (final) report has been forwarded.

•  But, for further investigation “during the trial” permission of the Court is needed.

•  7. “Evidence” of public servants can “be secured” through the successor officer.

•  8. Collection of Samples (including finger impressions and voice), without arrest.

•  9. Power of police to detain or remove any person.

•  10. State Government shall prepare Witness Protection Scheme

Conclusion

Doubts are seen raised, and questions are boosted –

•     Was a new enactment really required?

•     Wasn’t it proper to bring-in the changes by an amendment?

Whatever may be the answer, one thing is important –

•     Implementation of technology and electronic mode in Investigation and Trial (including that in Recording certain FIRs, Search and Seizure etc.) is ‘in tune with the times’.

In Quest of Justice

(K. Ramakumar, Sr. Advocate, High Court of Kerala)

“Sometimes, inquest of justice, we end up doing injustice.”

-- Justice Pankaj Mithal in High Court Bar Association, Allahabad v. State of U.P. (2024 (2) KLT 163 (SC) = 2024 KLT OnLine 1139 (SC) = (2024) 6 SCC 267).

The issue involved in the case is whether Asian Resurfacing of Road Agency Pvt. Ltd. (2018 (2) KLT 158 (SC) = (2018) 16 SCC 299) had crossed the limits in restricting interim orders. The Apex Court took note of the pitfalls in our legal system and the inordinate delay which has become part of it.

“In our legal system, which is facing a docket explosion, an order of remand should be made only as a last resort. The orders of remand not only result in more delays but also increase the cost of litigation. Therefore, to avoid the possibility of passing an order of remand, the grant of stay of proceedings is called for in many cases.”

The Apex Court also quoted from Abdul Rehman Antulay V. Nayak (1992 (1) KLT OnLIne 903 (SC) = (1992) 1 SCC 225 at page 268).

“But then speedy trial or other expressions conveying the said concept — are necessarily relative in nature. One may ask — speedy means, how speedy? How long a delay is too long? We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, the workload in the particular court, means of communication and several other circumstances have to be kept in mind.”

“In many cases, the accused may himself have been responsible for the delay. In such cases, he cannot be allowed to take advantage of his own wrong. In some cases, delays may occur for which neither the prosecution nor the accused can be blamed but the system itself. Such delays too cannot be treated as unjustifiable — broadly speaking. Of course, if it is a minor offence — not being an economic offence — and the delay is too long, not caused by the accused, different considerations may arise. Each case must be left to be decided on its own facts having regard to the principles enunciated hereinafter.”

This is not confined to the criminal courts. The Apex Court adds,

“There is a huge filing of regular appeals, both civil and criminal in High Courts. After all, the High Courts deal with many other important matters, such as criminal appeals against acquittal and conviction, bail petitions, writ petitions, and other proceedings that involve the issues of liberty under Article 21 of the Constitution of India. The High Courts deal with matrimonial disputes, old appeals against decrees of civil courts, and appeals against appellate decrees. There are cases where senior citizens or second or third-generation litigants are parties. The High Courts cannot be expected to decide, on a priority basis or a day-to-day basis, only those cases in which a stay of proceedings has been granted while ignoring several other categories of cases that may require more priority to be given.”

Please see further,

“The figures of pendency of cases in our trial Courts are staggering. There are different categories of cases which, by their very nature, are required to be given utmost priority, such as the cases of the accused in jail and the cases of senior citizens. For example, there are many legislations like the Hindu Marriage Act, 1955, the Protection of Women from Domestic Violence Act, 2005, the Negotiable Instruments Act, 1881 etc. which prescribe specific time limits for the disposal of cases. However, due to the huge filing and pendency, our Courts cannot conclude the trials within the time provided by the statutes. There is a provision in the Code of Criminal Procedure, 1973, in the form of Section 309, which requires criminal cases to be heard on a day-to-day basis once the recording of evidence commences. The same Section provides that in case of certain serious offences against women, the cases must be decided within two months of filing the charge sheet. Unfortunately, our Criminal Courts are not in a position to implement the said provision.”

The picture presented by the Highest Court of the Country is truly alarming. It is not for nothing that the Hon’ble Chief Justice of India recently in a speech said, “The Courts are not of the Judges, by the Judges, and for the Judges”. The Hon’ble Chief Justice of India bluntly said that the litigant has lost confidence in the system and is avoiding approaching it.

What are we to do then to enervate this enduring and eluding enigma? Numerous committees, commissions, recommendations etc. have been made in this regard besides the lament in judicial pronouncements. The High Court of Kerala, in one of the judgements confessed that it is not able to devote time to large number of pending criminal appeals where the convicts are in prison. Such is the state of affairs in almost all the High Courts.

Some of the Judges of the High Court of Kerala get up at 4 o’clock and sleep at 11 o’clock after a toiling day’s work. Still such hard and dedicated work do not appear to be rewarding. At the other end, there are Judges who even omit to pronounce or sign judgements before they demit office. Committed and hard-working Judges face intense health problems as well.

A litigant enters the court with a belief that he will get speedy and fair adjudication. The never ending litigation tires him out and he resorts to deviant methods. It is the common man who needs the courts more than the corporates.

The conscientious among the lawyer community have started developing a feeling that they are making unmerited money without any quid pro quo. Absent job satisfaction. The end result. All are absolutely frustrated.

Is not the Hon’ble Chief Justice, therefore,right, it may be respectfully asked, if people think that courts are only for judges and lawyers and not for the common people?

Registration of A Composite Mark : Rights and Limitations

(By Febin James, Advocate, High Court of Kerala)
e-mail : febin.james@gmail.com       Mob.: 9446764699

A registered trademark grants the exclusive right to use the trademark against others, but this right is subject to specific conditions. In the case of composite trademarks, which contain several elements, the authority to take action against an infringer is limited to instances where a mark as a whole is misused. This principle is reflected in the judgments of various courts, which have clarified the extent and limitations of trademark rights, especially concerning composite marks.

Concept of Composite Marks

The Composite marks are trademarks that consist of multiple elements, including words, designs, logos, or a combination of these. These elements can be distinctive or non-distinctive. The distinctiveness of a composite mark is often derived from the combination of its elements rather than from any single component. As such, the protection afforded to a composite mark is generally limited to the mark as a whole, and not to its individual parts unless those parts are separately registered and distinctive in their own right.

Elements of a Composite Mark

1. Distinctive Elements: These are parts of the mark that are inherently distinctive or have acquired distinctiveness through use. They play a crucial role in identifying the source of goods or services.

2. Non-distinctive Elements: These are common or descriptive parts that do not independently qualify for trademark protection. They often include generic terms, common symbols, or descriptive words.

Protection of Composite Marks

The first incidence of the registration of a composite mark is that it grants exclusive rights to use the mark as a whole. This means that the proprietor cannot claim exclusive rights over individual elements of the mark. To obtain broader protection, the proprietor must register each element separately. The Second aspect of registration of a composite mark is where the mark containing distinctive elements and non-distinctive elements,  the registration do not confer any right over the non-distinctive elements. The Section 17 of The Trademark Act, 1999 deals with the effect of registration of parts of a mark. It states:

“17. Effect of registration of parts of a mark.—

(1)When a trade mark consists of several matters, its registration shall confer on the proprietor exclusive right to the use of the trade mark taken as a whole.

(2)Notwithstanding anything contained in sub-section (1), when a trade mark—

(a)  contains any part—

(i)   which is not the subject of a separate application by the proprietor for registration as a trade mark; or

(ii)  which is not separately registered by the proprietor as a trade mark; or

(b)contains any matter which is common to the trade or is otherwise of a non-distinctive character, the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered.”

The purpose of this Section is to ensure that the proprietor of a composite mark does not claim exclusive rights over non-distinctive parts of the mark, which may be common to the trade. The Clause (1) of the Section 17 deals with a mark containing several Parts and the provision clearly states that the registration shall only confer on the proprietor exclusive right to the use of the trade mark taken as a whole. Whereas as clause (2) not merely deal with a composite mark comprising of several parts, but a composite mark containing distinctive elements as well as non-distinctive elements. From the plain reading, it is clear that no right will be conferred over the non-distinctive elements, but the question is whether any right is conferred over distinctive elements in a composite mark.  Nowhere in the Section 17, it is stated that the distinctive part in the composite mark will be independently protected.

Rights and Limitations, The Decisional Law

The Registrar of Trade Marks v. Ashok Chandra Rakhit Ltd.₁

In this case, the Supreme Court emphasized the importance of disclaimers in trademark registrations. The respondent had registered the trademark “Shree” without a disclaimer, which led to confusion as “Shree” is a common auspicious symbol in Hindu culture. The Supreme Court upheld the Registrar’s decision to insert a disclaimer, stating that the purpose of a disclaimer is to define the proprietor’s rights under the registration and to minimize the possibility of extravagant and unauthorized claims. The court ruled that the registration of a distinctive label as a whole does not confer exclusive rights to any particular word or name contained within the label. Therefore, the proprietor of the trademark “Shree” could not claim exclusive rights over the word itself.

Amritdhara Pharmacy v. Satya Deo Gupta₂

The Supreme Court held that a trademark must be judged by the overall impression created by the mark as a whole. The court emphasized that the composite mark should be viewed in its entirety and not dissected into individual elements.

Parle Products Pvt. Ltd. v. J.P. & Co. Mysore₃

The Supreme Court reiterated that the correct approach for comparing two composite marks is to consider the overall impression and to look at the essential features of the marks. The court ruled that even if the marks are not identical, if they have a similar overall impression, it could lead to confusion.

Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.₄

In this landmark case, the Supreme Court laid down several principles for determining the likelihood of confusion between trademarks, including composite marks. The court stressed the importance of considering factors such as the nature of the goods, the class of purchasers, the mode of purchase, and the overall similarity in the essential features of the marks.

M/s. Kirorimal Kashiram Marketing v. M/s. Shree Sita Chawal Udyog Mill₅

The Delhi High Court held that the composite mark must be taken as a whole and that the comparison should not be restricted to one component of the mark. The court also stated that phonetic similarity and visual similarity are important aspects to be considered in such cases.

ITC Limited v. Philip Morris Products₆

The Delhi High Court emphasized that while comparing composite trademarks, the court must consider the dominant features of the trademarks. The overall structural and phonetic similarity, as well as the idea conveyed by the marks, are crucial in determining the likelihood of confusion.

Tata Sons Ltd. v. Manoj Dodia & Ors.₇

The Delhi High Court held that for composite marks, the dominant feature plays a significant role in the determination of deceptive similarity. The court ruled that if the dominant feature of the two marks is similar, it is likely to cause confusion among the public.

Nandhini Deluxe v. Karnataka Co-operative Milk Producers Federation Ltd.₈

The Supreme Court highlighted the importance of the overall impression of composite marks, ruling that individual components should not be given undue importance. The decision emphasized the need to consider the distinctiveness and the primary impression created by the marks.

Bhole Baba Milk Food Industries v. Parul Food Specialties₉

This case involved the use of the word “Krishna” in trademarks for milk products. The Delhi High Court held that the name of the deity cannot be monopolized as it is in the public domain. The court ruled that the registration obtained by the appellant was for the distinctive form of the word “Krishna” as used in their label, and not for the word itself. The distinctiveness is limited to the registered form of the mark, and thus, the registration does not provide an exclusive statutory right to the word “Krishna”.

Super Cassettes Industries Ltd. v. Union of India & Ors.₁₀

In this case, the court dealt with the trademark “T-Series” and the opposition by TELCO over the use of the letter “T”. The court held that the marks of the two companies were structurally, stylistically, and substantially different, and there was no likelihood of confusion. The judgment highlighted that a composite mark must be compared in its entirety and that individual components cannot be monopolized unless they are distinctly registered as separate trademarks. This decision reinforces the principle that the rights conferred by the registration of a composite mark are limited to the mark as a whole.

Harjeet Kaur v. Deputy Registrar of Trade Marks₁₁

The court in this case addressed the issue of similarity between the marks “TANU” and “T.T. Industries.” It was held that composite marks should be compared as a whole and not dissected into parts. The court emphasized that a composite trademark cannot be separated into its prefix and suffix to determine similarity. The distinctiveness and overall impression of the mark should be the basis of comparison. This case underscores the importance of viewing composite trademarks in their entirety rather than focusing on individual elements.

Conclusion

The registration of a composite mark does not confer exclusive rights to its individual or non-distinctive parts. The rights provided under the Act are limited to the form in which the mark is registered. The Courts have consistently emphasized the importance of considering composite marks in their entirety and not dissecting them into individual elements. By understanding the principles and limitations of composite mark protection, businesses can better navigate the complexities of trademark registration and enforcement.

Foot Notes:

1. 1955 KLT OnLine 1063 (SC) = AIR 1955 SC 558.

2. 1962 KLT OnLine 1143 (SC) = AIR 1963 SC 449.

3.1972 KLT OnLine 1208 (SC) = AIR 1972 SC 1359.

4. 2001 (3) KLT SN 3 (C.No.4) SC = AIR 2001 SC 1952.

5.2010 (3) KLT OnLine 1134 (Del.) = 2010 (42) PTC 486 (Del.).

6. 2010 (1) KLT OnLine 1158 (Del.) = 2010 (42) PTC 572 (Del.).

7. 2011 (1) KLT OnLine 1242 (Del.).

8. 2018 (3) KLT OnLine 3038 (SC) = (2018) 9 SCC 183.

9. 2011 (4) KLT OnLine 1122 (Del.) = 2011 (48) PTC 235 (Del.).

10. 2010 (2) KLT OnLine 1128 (Del.) = 2010 SCC OnLine Del.1652.

11. 2005 (30) PTC 330 IPAB.

Speeding Up Civil Disposal : Insights from Yashpal Jain v. Sushila Devi  (2023 KLT OnLine 1884 (SC))

(By Anujus Pradeep, LLM Student, Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur)

e-mail : anujuspradeep99@gmail.com               Mob.: 9526837201 

“Even after 41 years the parties to the lis are still groping in the dark and litigating as to who should be brought on record as legal representative of the sole plaintiff”- this is the preface of the Judgement made by Honourable Justice S.Ravindra Bhat and Aravind Kumar in the case of Yashpal Jain v. Sushila Devi (2024 (1) KLT SN 3 (C.No.2) SC = 2023 KLT Online 1884 (SC)), wherein the case highlighted the situation of long pending civil suit and emphasised the relevancy and role of certain provisions such as Order V Rule 2 (Execution of summons), Order VII Rule 1 (Time limit regarding filing of written statements), Order X (Recording of admission and denials) along with Section 89 (Dispute settlement), Order XI (Discovery and Inspection) and Order XII (Admissions) in speeding up the disposal of civil cases in time bound manner. So what are these provisions, can it become an oil to the machinery and speed up the disposal of suits in civil nature?

Efficient Service of Summons for Timely Case Disposal

Order V of C.P.C. provides for Issue and service of summons , wherein Rule 1(1) clearly points out the time for issue of summons by the plaintiff for the defendant and time limit of filing of written statement, where it provides that after the institution of plaint the summons must be issued to defendant in to appear and from the date of service of the summons within 30 days the defendant has to file written statement if any, the time limit for submitting the same can be extended up to 90 days from the date of service of the summons. The proper service of summons is an essential element for the timely disposal in every case and in 77th Law Commission Report (Law Commission Report No.77, 1.Para.4.2.(13) Long delays take place in getting service effected upon the defendants. To obviate this delay, summons to the defendant should be issued both in the ordinary way for service through the process server and by registered cover acknowledgement due) it has been observed that “long delays are taking place in the effective service of summons on defendants” and the report also indicate various measures to be adopted by court for the effective service of summons and in Yashpal Jain (supra) also the Supreme Court have pointed out the need of proper service of summons by the court within time and in compliance with Order V , the judgment also mandates that the Taluk and District Court should ensure the summons is served in a time bound manner and it must be monitored by Principal District Judges and forward the findings to the committee constituted by the High Court for taking proper actions, after post pandemic scenario apart from existing postal service method of serving of summons service through whatsapp also has been recognised by the Bombay High Court in SBI Cards and Payment Services v. Rohidas Jadhav (2018 (2) KLT OnLine 3182 (Bom.) = 2018 SCC Online Bom.1262) and the Delhi High Court in Tata Sons Ltd. v. John Doe (2021) as a mode of service of to speed up the service of summons and these new modes have significance and impact in this era in case management. Strict adherence to Order V provides benefit of timely disposal of case.

Timely Filing of Written Statements under Order VIII Rule 1

As per the law the “the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence. Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons” or the maximum time limit to enter into defence and file written statement is 90 days where the time frame was 30 days before 2002 C.P.C. amendment (The Code of Civil Procedure (Amendment) Act, 2002, 9. Amendment of Order VIII) and it was amended with an expected result that time limit will provide defendant sufficient time to file written statement without excuse. But many judgements have observed that this provision is not mandatory but directional in nature and the court has power to extend time limit. In Salem Bar Association case (2005 (4) KLT SN 32 (C.No.43) (SC)) the Apex Court held that the time for filing written statement shall not be extended frequently, in Atom Technologies Ltd. v. YA Chunawala and Co. (2018 (2) KLT OnLine 3125 (SC) = AIR OnLine 2018 SC 1266)., the court pointed out that the time extension must be only provided for only in exceptional cases. The legislative intent in 2002 C.P.C. amendment (The Code of Civil Procedure (Amendment) Act, 2002, 9. Amendment of Order VIII) was clear that emphasised 90 days shall be to complied strictly with, but the language used is “shall” that is in many cases court has observed the provision is not mandatory in nature but only in form of direction and court will be having discretion to extend time limit, and finally in Yashpal Jain (supra) the Apex Court have made it clear that the time limit in Order VIII Rule 1 must be strictly to be complied with by the courts in order to ensure timely disposal and reduction of pendency of cases.

Facilitating Case Clarity and Efficiency through Order X

Order X confers power to court, at the first hearing to ascertain parties whether the parties are admitting or denying any allegations or facts against them and if they do so the court will record it , where this provision under Rule 1 provide an opportunity to court to curb out the issues in case, where if the parties admit any then the court may not have to deal with those admitted matters and would save a considerable time of the court and enhance the speed of the case. Rule 2 also provide further scope to court to ascertain matters in controversy by calling up parties and putting question upon them and it is a mandatory provision the party is obliged to appear and this provision help the court to elucidate real issue in controversy and vital matter in the suit so as to get more clarity relating to the suit, in A.Shanmugham v. Ariya Kshariya Raja Kala Vamsathu Madalaya (2012 (2) KLT SN 130 (C.No.126) SC = AIR 2012 SC 2010). the court has observed oral examination of parties by court enable court to narrow down controversy in a suit, so these provision do will have an impact on settling up of litigation fastly where the provision narrows down the things that have to be researched by the court and sae that time as well as make the suit clear as crystal so as it enable court to pass orders or judgements in light of those findings, so as the reason why in Yashpal Jain (supra) the Apex Court warranted the trial court to use Order X effectively.

Promoting Alternative Dispute Resolution (ADR) under Order X Rule 1A and Section 89

This is one of the vital provision in the Code that provides for alternative dispute resolution mechanism in suits of civil in nature where Section 89 provides for settlement of disputes outside of court and the Section aims to solve disputes amicably and to reduce court burdens, where it integrates judicial and non-judicial resolution mechanisms and as per the provision the court can suggest settlements and refer the case to arbitration, conciliation, judicial settlement and mediation the provision that enacted after recommendation of Malimath Committee has a greater impact in speedy redressal of suits in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co.(P) Ltd. (2007 (1) KLT 196) The court clarified arbitration awards and settlements have the same binding effects as court decrees. After Salem Bar Association case (2005 (4) KLT SN 32 (C.No.43) (SC), the Supreme Court mandated Mediation must be made compulsory and Mediation centres must be set up in district levels under the supervision of respective High Courts, as a result the mediation centres are available at every court where family and small scale disputes are settled amicably in a shorter span of time, but there exist a number of hurdles in efficiently operating this mechanism such as reluctance from bar associations, lack of motivation and awareness in parties to the suit, infrastructure limitations, lack of experts and training. So ADR must be made more viable and measures have to be taken for it such as creating awareness among parties, changing the mind-set of lawyers on ADR and the myth that ADR declines revenue and the Government has to facilitate resources to support the new changes. Order IA, IB and IC provides for procedure to be followed by parties and court relating to ADR and it mandates that court shall direct the parties to opt for mode of settlement outside the court and fix a date for it.

Efficient Discovery and Interrogatories under Order XI of C.P.C.

Section 30 of C.P.C. provides that as prescribed in Order XI enable the court in suo motu order the delivery and answering of interrogatories , discovery, inspection and production of documents or other articles that amounts to evidence and court can use this provision to narrow down the controversy and save expense and time of parties along with shortening of trial in cases where number of documents relied upon by the parties are large and it may take long time in proving the facts and documents , the court as per Order XI Rule 1 with the leave of the court the parties can ask the opposite one to deliver interrogatory and the same must be answered by party in affidavit within span of 10 days as provided under Rule 8 and if party omits to answer any the court can ask the other party to answer in affidavit or via viva voice examination. Order XI also allow parties to discover the documents which are or have been in possession of any party which is related to matter in question to the suit and the same can be asked to be produced by party by using Rule 14 if such document production don’t injure the party having such document or not relating to title or evidence to his own case and as per Rule 15 the parties can inspect the document , except production of document under Rule 14 other forms are mandatory and non-compliance with them will be having consequences as such. Order XI is not widely used in practice nor no instruction or guidance has been provided on relevancy of the order, in Kishorilal v. Ramlal (2014 (1) KLT OnLine 1103 (Bom.-Auran.) = AIR 2014 Bom.19). honourable court observed that “……..The interrogatories are for the purpose of seeking admissions on facts and also in respect of the documents which are disclosed or produced by the other side. By putting questions to the other party, these admissions are sought to destroy a case of the respondent. This helps a party to reduce length of cross-examination and to shape its case more precise and it enables the Court also to have correct grasp of the nature and scope of cross-examination of the parties………..” the discovery by interrogatory can streamline the information gathering and reduce the need for extensive cross examination in Union of India v. Ibrahim Uddin & Anr. (2012 (3) KLT SN 73 (C.No.79) SC = (2012) 8 SCC 148). the Supreme Court has observed. “Order XI CPC contains certain provisions with the object to save expense by obtaining information as to material facts and to obtain admission of any fact which he has to prove on any issue.”

Speedy Resolution through Admissions under Order XII of C.P.C.

C.P.C. does not define the expression Admission but as per Evidence Act admission is a statement made in the oral, documentary or electronic form suggesting an inference to a fact-in-issue or relevant fact and as per the Act admitted fact need not to be proved, in the case of Smt.Sudesh Madhok v. Paam Antibiotics Ltd. & Anr. (2010 (4) KLT OnLine 1036 (Del.) = 174 (2010) DLT 594). The court has observed that when the claim has been admitted by the parties the court will be having power under Rule 6 to enter a judgement and to pass decree based on it where the court further observed the intent of the Order XII is to obtain speedy judgement in case based on admissions. It is not mandatory to pass the judgements solely based on admissions, as per the provision under Rule 1,2 and 2A any party to the suit can issue a notice to the opposite party to admit documents and unless it is denied in a reasonable manner it is deemed to be admitted and court has its own discretion to call upon party to admit documents even no notice is given under above rule where it’s not mandatory to admit the same as per Rule 7 even affidavit of pleader or clerk is sufficient to admit document or facts. The intent of framers is clear from the above provision that Order XII aims at speedy disposal of suit and provides a mechanism that is admissions to add fuel to it, whereas court is also entrusted with power to bring out parties with admissions so as to avoid admitted facts while deciding rest of the matter in suit, this is an interesting provision where court is having power to draw up judgement without moving into further aspects of suit, even court can pass judgement in pleading where the party does not disclose any of material particulars or plea is vague and unsubstantiated Rajeev Tandon v. Rashmi Tandon (2019 (1) KLT OnLine 3407 (Del.) = 2019 SCC Online 7336), proper grasping of Order XII may equip parties and courts valuable technique in handling case, this can be also effectively used by legal professionals to curb minor issues and get attention of court into major issues. In Yashpal Jain (supra) Supreme Court advices the courts to use this provision effectively to reduce the delay of deciding suits.

Way forward

Honourable Justices S Ravindra Bhat and Aravind Kumar in Yashpal Jain (supra) accentuates the critical need for strict adherence to procedural provisions of C.P.C. to expedite resolution of cases based on the key provisions discussed above. The issue pertaining in the realm of civil case pendency is still a significant concern and affect the credibility of the system, the highlighted judgment emphasise the necessity for strict adherence to procedural provisions with the Civil Procedure Code to expel the delay in judicial process. The practicality of most of the above mentioned provision is still a question when coming into reality but the bar and bench coordination and effective monitoring mechanism along with proper training can bring out significant change in the mind-set of legal fraternity. As Warren E Burger said “A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people. And three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value.”

A Bird’s Eye View of Some Landmark Judgments in the
Copyright Landscape

(By Dr. Raju Narayana Swamy, IAS)
E-mail : narayanan5@ias.nic.in       Mob. 9447010602
1.Amar Nath Sehgal v. Union of India & Anr.(2005 (1) KLT OnLine 1181 (Del.) = (2005) 117 DLT 717 = 2005 (30) PTC 253 (Del.) (Case No.CS (OS) 2074 of 1992).

The Delhi High Court through this case set a precedent by aiming towards expanding the scope and ambit of moral rights existing under Section 57 of the Copyright Act, 1957.

The facts of the case were as follows:- The plaintiff, a well-renowned sculptor, was commissioned by the Government of India to create a bronze mural sculpture for the lobby of Vigyan Bhawan. The sculpture took five years to finish and was placed on the wall of the lobby. The cause of action arose when the Government of India arbitrarily took down the sculpture in 1979 and consigned it to the store room. Though the plaintiff made representations, they were left unheard. As a last recourse, he moved the Delhi High Court. The suit was filed in 1992 and an interim injunction was issued. However the case was heard for 13 years before a single bench decision on February 21, 2005 put an end to the proceedings.

The defendant argued that on being given assignment of the mural, the defendant was at liberty to decide the fate of the mural. The defendant had obtained assignment of the mural in exchange of a consideration which had divested the plaintiff of his rights over the same. The plaintiff on the other hand argued that he had the right to preserve the mutilated work as well and sought for a decree to direct the defendant to return the mural to him as well as bear the cost of restoration of the same.

It needs to be observed in this regard that Section 57 of the Act defines two basic moral rights -- right of paternity and right of integrity. While discussing moral rights the Court made a deliberate attempt to widen the scope of these rights and included protection of cultural heritage within its ambit. The Court acknowledged the author’s work of art as a part of the national culture. While widening the scope of moral rights and author’s special rights, the Court relied upon international conventions such as the Berne convention and The convention on the Means of Prohibiting and Preventing the lllicit Import, Export and Transfer on Ownership of Cultural Property to bridge the gap between international obligations and domestic laws. To promote this consistency, the Court relied upon Vishaha & Ors. v. State of Rajasthan & Ors._[i] which observed that in the absence of domestic law, international conventions can be read into domestic laws provided that they are not inconsistent with domestic laws. The plaintiff has the right to recreate his work and therefore has the right to receive the broken down mural. As a result of this the Court passed a mandatory injunction against the defendant directing it to return the mural to the plaintiff. The court also granted damages worth INR 5 lakhs. It was also ordered that prior permission should always be taken before taking any such action.

Thus the decision recognizes moral rights as the heart of copyright law. It demons-trates that the status of moral rights is unrivalled and unavoidable. However, it needs to be mentioned that as against the remedy of INR 50 lakhs claimed by the plaintiff, the Court awarded him a remedy of only INR 5 lakhs. This begs the question of how monetary damages for moral rights are determined. In fact, there is a need to formulate a set of guidelines for computing the damages in case of infringement of moral rights. This is all the more relevant as the question essentially is ‘How can you quantify something which does not exist objectively?’

2.Raj Rewal v. Union of India & Ors. (2019 (2) KLT OnLine 3103 (Del.) = 2019 VI AD (Del.) 267).

This case decided by the Delhi High Court on May 28, 2019 examines the differences in how copyright law applies to architectural works. The dispute arose from the overlap between the landowner’s right to free use of his property and the architect’s copyright over his creation. To be specific, Mr. Raj Rewal, the appellant, was a well known Indian architect. Respondent no.2 the ITPO (Indian Trade Promotion Organization) had planned and received approval to demolish two buildings built by Mr.Rewal - the Hall of Nations and the Nehru Pavilion. The plaintiff filed a law suit against the respondents under Section 57 of the Copyright Act seeking a mandatory injunction and compensation by recreating the work of architecture in the Hall of Nations and the Nehru Pavilion at the same place or at any other equally significant location in Delhi. According to him, the demolition act violated the claimant’s exclusive rights u/S.57. He alluded to the dicta of Amar Nath Sehgal v. Union of India (2005 (1) KLT OnLine 1181 (Del.). The author’s right against distortion, mutilation or modifi-cationis safeguarded if his reputation or honour is jeopardized. It was argued that the author’s right to maintain the integrity of the work in respect of the nation’s cultural heritage, included measures to protect the work’s integrity. The plaintiff’s counsel argued that an architectural work is an artistic work and that copyright does not distinguish between the media on which the work is created. Consequently the artistic work would exist even of the medium was another’s land. Because a work of architecture is a practical design, it is not ineligible for copyright protection._[ii]  By relying on George Hensher Ltd v. Restawile Upholstery (Lanes) Ltd. (1974 AC 64) it was argued that copyright exists whether or not the work has artistic merit and quality. Moreover the architect owns the building’s design.

The respondents argued that Section 57(b) of the Copyright Act only grants rights to the work’s distortion, mutilation or modification and not to its utter destruction when the work ceases to subsist and is no longer perceptible. It was also argued that the Amar Nath Sehgal dictum does not apply in this case.

The Court came to a conclusion that the writer’s right u/S.57 to prevent distortion does not extend to preventing his work from being destroyed. The plaintiff in this instance would not be able to stop the defendant from demolishing the property because it would be a violation of the defendant’s right to govern his property and land under Article 300A.
Recognizing that the Copyright Act must be read in tandem, the Court ruled that Section 57could not consider the right to object to a building’s demolition. The case thus highlights the contrast between complete and partial annihilation of a work -- a subject that has never been addressed before in the history of Indian Copyright Law.

3.Sajeev Pillai v. Venu Kunnapalli & Anr. (2020 (1) KLT 530 = FAO No.191 of 2019).

This is a case decided by the High Court of Kerala on December 11, 2019. The appellant had prepared a script for a film based on “Mamankam’-a magnificent festival celebrated once in 12 years on the banks of the Bharatapuzha between 14th to 19th centuries. He contacted the first respondent who was interested in making a film and they signed a MoU in 2017. It was found that the appellant’s script was mutilated, distorted and modified throughout the film’s production. He challenged the order passed by the Additional District Court of Ernakulam dismissing his request for an interim injunction against the respondents from releasing, publishing and distributing the film “Mamankam” by any mode of dissemination to public and issuing pre-release publicity without providing adequate authorship credit to the plaintiff. The respondents argued that the MoU is valid until deemed invalid by a Court of law. It was also stated that the appellant sold his authorship for `3,00,000/- and so the appellant is not entitled to get credit for the film’s story, screenplay etc. Arguments were raised that as the appellant assigned the copyright for a substantial consideration, he is not permitted to claim authorship of his creation or to prevent distribution of such a high-budget film. No rights including those listed in Copyright Act belong to the petitioner.

The Court after a deep analysis of Section 57 of the Copyright Act, concluded that the author has legal right over his IP even after submission of the assignment. The screenplay was the original hard work of the appellant and he thus has legal protection mainly u/S.57(b) which consists of two components. The first part would entitle the author to restrain the opposite party from making any distortion, mutilation or modification or any other act prejudicial to his honour or reputation. The second part was that the author is entitled to claim damages in respect of any distortion.

With regard to the imminent date of release of the movie, the Court had a balanced attitude by permitting it if conditions that favoured the appellant such as no mention of screenwriter’s name on any public display of the movie were agreed to.

4. Burrow-Giles Lithographic Co. v. Sarony (Supreme Court of United States) 111 US 53 (1884).

In this case, the Court recognized that photograph is an original work of art when it is a product of intellectual invention of which the photographer is the author. It is one of the earliest cases in which the Court firmly resolved the issue of extension given by the US congress to photographs under the Copyright Act of 1865.

The brief facts of the case were as follows: Sarony was America’s most famous portrait photographer and had photographed Oscar Wilde. A retail store in New York City commissioned Burrow – Giles Lithographic Co. to print an advertisement for hats, in which it used the photo. The publishers were sued by the photographer u/S.4952 of the Copyright Act of 1865 which extended copyright protection to photographs. He claimed that the picture was entirely from his original mental conception to which he gave visible form by posing with Oscar Wilde. He selected and arranged the costume, draperies and other accessories in the said photograph. It was an original work of art, the product of his intellectual invention and therefore he is the author. As Section 4952 protected photographs, among other things, he had secured the sole privilege of reprinting, publishing, copying and vending the same.

The company on the other side argued that in the language of Article 1 of the US Constitution, the photographer was not the “author” of the “writing” and thus the statute was constitutionally inadmissible. Burrow--Giles also argued that photography was merely a mechanical process rather than an art and could not embody an author’s “idea” or artistic expression.

The Court disagreed with the company’s narrow interpretation of the word ‘writings’.
The argument that photography was a mechanical process that showed no artistic expression was rejected. The Court accepted that this may be true of ordinary photographs, but this was not the case of Sarony’s image of Oscar Wilde. The control that Sarony had exercised over the subject matter in the view of the Court showed that he was the author of an original work of art and thus written the class of things for which the Constitution intended Congress to grant him exclusive rights under the copyright laws.

The case has been used as a precedent to extend copyright protection to photographs in India.

5. Eastern Book Company & Ors. v. D.B.Modak & Anr. (2007 (4) KLT OnLine 1235 (SC) = AIR 2008 SC 809 = (2008) 1 SCC 1 (Civil Appeal No.6472 of 2004)).

This case was decided on December 12, 2007 by the Supreme Court of India. The appellants -- Eastern Book Company -- are a publishing house involved in the publication of a compilation of various Supreme Court cases. It so happened that the defendants-Spectrum Business Support Ltd and Regent Datatech Pvt Ltd – launched a software package called “The Laws” via CD-ROMs that contained the same material.

The appellants contended that the judgments were given a different form all-together by them making it very different and unique from the original draft of the Supreme Court. The project was a result of hard labour and skills of trained professionals making it eligible to be copyrighted u/S.13 of the Copyright Act. The work is neither negligible nor trivial in its scope and nature and is an outcome of creativity of the author.

The defendant argued that as publication of judgments of the Supreme Court does not lead to copyright infringement u/S.52(1)(q)(iv) of the Copyright Act, the act of the defendant could not be categorized as copyright infringement. The appellant’s work was also claimed to be a law journal (listing judgments verbatim with some inputs) as opposed to a law report (author record of the judgments in his own words) and hence would fail to seek rights for copyright. It was also stated by the defendants that some minimum level of creativity is a pre-requisite for copyright which the appellant’s content lacked.

The Court ruled in favour of the appealing party, giving them sole rights in their content and forbidding the defendants from using it. The judgment laid down the premise that derivative work should be considered more than just a copy of the original work. Inserting paragraph numbering and indicating the concurring and differing opinion of the judges in a case requires legal skills and acumen. This activity and production, according to the Court, exhibit a minimum level of inventiveness needed for the work to be subject to copyright.

6.Krishika Lulla & Ors v. Shyam Vithalrao Devkatta & Ors. (2015 (4) KLT Suppl.32 (SC) = 2016(157) AIC 56 = (2016) 2SCC 521 = (2015) 10 SCALE 718)

The case dealt with claim of copyright in film titles. The petitioner contended that according to an agreement dated September 2009, Milap Zaveri wrote the story for the film ‘Desi Boyz’ and was duly compensated. He asserted that copyright does not exist in a film’s title and that aside from that, the film’s story had no resemblance to that of the respondent (Mr.Devkatta) in terms of characters, scenes and settings. Devkatta’s counsel on the other hand contended that the title was protected by copyright as it was the soul of his story which took away everything from his story.

The Supreme Court examined Section 13 of the Copyright Act pursuant to which copyright is protected in original literary, dramatic, musical, and artistic works as well as cinematograph films and sound recordings. The Court then assessed whether the title of Devkatta’s story qualified as ‘original literary work’. Legal precedents that addressed this issue in depth were considered. For example in Hogg v. Maxwell,_[iii]   the question was whether the title of a monthly magazine called ‘Belgravia’ was copyrightable. In that instance the Court concluded that the “copyright intended by the Act must be in some terms in the shape of a volume or part of a volume which is conveyed to the public, by which the public is benefited and in exchange for which the author of the work is provided a certain protection”. The Court also cited the Oxford English Dictionary which describes literary as “concerning the writing, study or content of literature especially the land valued for its form quality”. As a result, simply using every day terms does not qualify as “literary”. In Francis Day and Hunter Ltd v. Twentieth century Fox Corporation Limited & Ors._[iv]   the Privy Council made a similar decision. When deciding whether using the title of a song as the name of a movie constitutes copyright infringement, they ruled that “a title normally does not include literary production and is not sufficiently substantial to sustain the claim to protection. Moreover the Madras High Court in R.RadhaKrishnan v. Mr.A.R.Murugadoss & Ors._[v] rejected copyright protection in the film’s title ‘Raja Rani’ ruling that the terms were used in everyday conversation.

The Supreme Court finally ruled that Mr.Devkatta lacked copyright in the term “Desi Boyz” and hence could not sue the film makers for copyright infringement. The mere use of every day words, such as these employed here, does not qualify as “literary”.

7. Star India Pvt.Ltd v. Moviestrunk.Com & Ors (2020 (1) KLT OnLine 1226 (Del.) = Cs (COMM) 408 of 2019, IA 10601 of 2019 & IA 13684 of 2019) (Delhi High Court)

The lawsuit involved the cinematographic film ‘Mission Mangal’ which was set to release on over 2500 screens across India on Aug 25, 2019. It was brought against the defendants who ran various internet streaming services for illegally streaming the plaintiff’s film, which constituted copyright infringement. According to the plaintiff, the defendants are ‘rogue websites’ written the meaning of the judgment in UTV Software Communication Ltd. & Ors. v. 1337x. to & Ors._[vi]as their principal activity involves reproduction, publication and communication of infringing material through the internet. In fact, the anonymous nature of these websites makes it impossible to identify, them effectively. Photographs of the defendant’s websites were included in the evidence provided to the Court confirming that the plaintiff’s film was made accessible for download and streaming on defendant’s websites before the official release date of the film. An affidavit of the plaintiff’s investigator Mr.Gaurav Ray and electronic records of proof showing unlawful acts being performed by the defendants were among the evidence submitted by the plaintiff. Notices were sent to the defendant websites to take down infringing content from their pages, but no responses to the same were received.

The counsel for the plaintiff referred to the judgment in Satya Infrastructure Ltd & Ors. v. Satys Infra & Estates Pvt.Ltd.._[vii] where it was ruled that in an unopposed litigation of this sort, it is not required to compel the plaintiff to present proof. The Commercial Courts Act, 2015 provides appropriate assistance in the form of a statement of truth and declaration.

The Court held that the plaintiff has succeeded in showing that the defendants were primarily engaged in committing and facilitating copyright infringement. The plaintiff’s right to exclusive exploitation and dissemination of the copyrighted content was likewise acknowledged by the Court under the Copyright Act of 1957. Defendant’s refusal to respond
to the plaintiff’s notifications or to enter attendance according to the summons demonstrates a complete disregard for the plaintiff’s IPRs. As a result, the Court issued an injunction as well as appropriate damages. The Court also directed the internet service providers that were providing service to the defendant’s websites to block access and the appropriate authority to suspend the web addresses of the defendants.

8. Music Choice India (P) Ltd. v. Phonographic Performance Ltd. (2010 (1) KLT OnLine 1157 (Bom.) = 2010 (44) PTC 171 (Bom.) = (2010) 112 (1) Bom.LR 0470) (Bombay High Court).

The case deals with the question of jurisdiction and is concerned with the issue relating to broadcasting sound recording and non-grant of license. The plaintiff-a sound recording broadcaster – sought licensing from the defendant to broadcast as the latter was a holder of copyright in sound recordings. However the defendant rejected the offer of the plaintiff that came with particular conditions. The plaintiff’s prayer to the Court sought a proclamation that the plaintiff was obligated to a license to telecast the defendant’s sound recordings in return for money to the defendant subject to the terms and conditions set forth by the Copyright Board on the plaintiff’s proposal for grant of compulsory license u/S.31(1)(b)
of the Act which was filed in 2007. The plaintiff also sought an injunction against the defendant restricting them from meddling with the telecast of sound recordings.

The defendant claimed that the complaint could not be maintained in the Civil Court because of Section 9 of the Civil Procedure Code, 1908. If the parties are not in agreement regarding the amount of compensation, in compliance with the procedure laid down under S.31(1)(b), only the Copyright Board can determine it.

The Court ordered that Civil Court will not have any jurisdictional power to grant the final remedy in the suit as it is enforceable only before the Copyright Board. It also lacks the jurisdictionary power to render injunctive relief to restrict meddling with the telecast by the plaintiff. When a copyright holder or his transferee refuses a broadcaster’s offer to broadcast any sound recording intended for public communication on conditions that the broadcaster considers rational, the Copyright Board is mandated by law to investigate and assess after receiving a complaint brought before it. The case was dismissed on account of jurisdictional conundrum.

9. Najma Heptulla v. Orient Longman Ltd. (1988 (2) KLT OnLine 1154 (Del.) = AIR 1989 Del.63 = 1989 (1) Crimes 597 = 36 (1988) DLT 31 = 1988 (15) DRJ 22) (Delhi High Court).

This case pertains to the concept of joint authorship in the backdrop of a copyrighted work. It is pertinent to mention in this context that Section 2(z) of the Copyright Act of 1957 defines “work of joint authorship” as “a work produced by the collaboration of two or more authors in which one author’s contribution is not distinguishable from the contribution of the other author or authors”.

The brief facts of the case were as follows:- The release of the book ‘India wins Freedom’ by Maulana Abdul Kalam Azad was scheduled in November 1957. But due to a stroke, Maulana Azad – the author of the book – passed away before the text could be published. Professor Humayun Kabir, a close associate of the author, later signed a contract with Orient Longman Limited for the publication of the book (except the first 30 pages which it was stated expressly in the introduction to be locked and released after 30 years) and it was determined that the royalties would be split between the Indian Council of Cultural Relations and the author’s legal heirs -- Fatima Begum (grandmother of Najma Heptulla) and Nooruddin Ahmed. In the agreement, Professor Kabir was identified as the book’s composer. It was also agreed that after the seals were broken on February 22, 1988, the publishing business would have rights to publish the entire book.

The plaintiff, Najma Heptulla, submitted a notification on February 13,1988 claiming that she was not in favour of publishing the complete book. A complaint for “rendition of accounts” was brought and an order was issued against Orient Longman Limited preventing them from publishing the complete book. It was contended by the plaintiff that the book’s publication rights belong only to Maulana’s heirs and that Professor Kabir lacked the power to make such a deal. The defendant on the other hand argued that though Maulana possessed ownership in the work, he had consented to Professor Kabir’s arrangement. Professor Kabir is thus the only author of the work and has authority to sign the contract.

The Court considered the word ‘author’ as defined by Sections 2(d) and 55(2) of the Copyright Act,1957. It is indisputable that the author of the book is Maulana, but the prologue implies that Professor Kabir is also a joint author. It was because Maulana only gave thoughts in Urdu and Professor Kabir took notes based on that which were later published as a book. The Court cited Dononghue v. Allied Newspapers Ltd._[viii] in which the racing secrets of Steve Donoghue were not copyrightable as the expression had been listed down by the journalist. In Walter v. Lane._[ix] the Court decided that when a reporter publishes about a hearing, he not only writes down what will be published, but also organises it and therefore report preparation necessitates more than mechanical ability.

As a result, Professor Kabir was considered the only author because he did all of the translating and editing. However he stated in his agreement with the defendant that he would transfer 50% of the royalties to Maulana’s legal heirs and therefore he did not consider himself the sole author. Thus both of them were joint authors. When there is joint authorship and one of them is no more, the consent of the legal representatives of the deceased is necessary. Here Fatima Begum ratified the agreement and the publication of book, according to evidence. The Court also discussed the Promissory and Equitable Estoppel Principle. In the present case, she was aware of the arrangement and receiving the royalty. As a result because the plaintiff had reaped the benefit of royalty, the rule of estoppel will apply. Furthermore the plaintiff suffered no irreversible loss or injury. Hence the injunction was denied. However the defendant was ordered to pay INR one lakh as security.

10. Delhi University Photocopy Case (The Chancellor, Master and Scholar of the University of Oxford & Ors v. Rameshwari Photocopying Services & Anr.) 2016 (4) KLT OnLine 2352 (Del.) = 233 (2016) DLT 279 = (2017) 69 PTC 123 (Civil Appeal No.25 of 1995).

This case originated when a couple of publishers lodged a complaint against a photocopying shop on the campus of Delhi University. The point of contention was that the shop compiled the resource materials from their books into one ‘course pack’. The plaintiffs claimed that this was a copyright infringement of their IP. Republishing sizable amounts of excerpts from their work and making a compendium makes them accountable under Sections 14 & 51 of the Copyright Act. It was also maintained by the plaintiffs that the defendants ought to be issued a licence under the IRRO (Indian Reprographic Rights Organisation). They asserted that the defendants ought not take defence u/S.52(1)(i) as there was no form of instruction by a teacher. It was also maintained that there was a commercial intent and that people will become more inclined to buy course packs at a lower price and out of convenience and that as a result actual publications will face deterrence in their worth.

The defence counsel took the defence of fair trade u/S.52(a) and (h). They claimed that their course packs had no major impact on the business and that this only helps the students. The defendants also contended that ‘instruction’ in Section 52 goes beyond classroom education. It was also maintained that since there is no copyright infringement, licensing under IRRO is immaterial. Arguments were put forth that 55 authors were cited, but 34 of them did not make any opposition to the suit. The number of excerpts borrowed were not in a sizable amount.

The Court was of the opinion that the claimants are in no competition with ‘course packs’. Even if these compilations were not made, the students would borrow the books from the library at no cost. Hence there is no direct threat to the IP of the plaintiffs. It is immaterial if an act holds an exclusive right to copyright, if touched upon in S.52, it will not entail copyright infringement. While discussing S.52(1)(i), it was felt that reproduction is not only constricted to a stereotypical teacher -- student discussion. The phrase ‘in course of instruction’ refers to the entire process rather than merely that carried out in the lecture. On IRRO licenses, the Court maintained that it is unnecessary as all acts of the defendants are in conformity with Section 52(1)(i) . Since the student’s action of photocopy of resource material does not amount to infringement, the act of photocopying by the university for their students also will not be considered infringement. Moreover it is immaterial if the machine is installed inside the library or outside or is done by a student or by a person employed or a contractor.

It is also worth mentioning that an appeal which surfaced before a Division Bench was later dropped and the case trial was restarted to establish if the course packs were truly adequate. The Court determined that expert testimony was needed. It was required of the photocopier to keep track of course packages copied, deliver it to pupils and then present the same in Court every six months.

A highlight of the judgment is that it ascertains that copyright law is not a natural law but a statutory law. Thus it has strayed away from the usual fair-trade test.

11. Academy of General Education, Manipal v. B.Malini Mallya (2009 (2) KLT Suppl.80 (SC) = AIR 2009 SC 1982 = (2009) 4 SCC 256) (Civil Appeal No.389/2008)

This is a landmark case wherein the Supreme Court clarified the scope of fair use. The case decided on January 23, 2009 involved a conflict between the Academy of General Education, Manipal and Ms.Malini Mallya over violation of a copyright owned by the latter. The subject of copyright was the work of Jnanapeeth awardee Dr.Shivarma Karanth and the work in question was a derivative of Yakshagana called as Yaksharanga. It qualified as an ‘original work’ because Dr.Karanth had written seven poems (known as ‘prasangas’) for performing Yaksharanga and altered the traditional dance style. After his death, the rights over Yaksharanga were given to Ms.Malini Mallya as per a will signed by Dr.Karanth prior to his death (which occurred in 1997). In 2001 the Academy of General Education performed Yaksharanga without seeking permission from Ms.Malini. The District Court of Udupi ruled favourably for Ms. Malini and passed a decree in 2003 restraining the Academy from performing the seven prasangas. The High Court on appeal agreed with the verdict of the District Court. Following this, the Academy approached the Supreme Court submitting that the dance performance fell within the purview of “fair use” because the dance form was not exploited for commercial gain as no fees was charged from the audience. It was also contended that the injunction issued is not in accordance with the requirements of the Copyright Act 1957 as the appellant is allowed to utilise the same in accordance with Section 52(1) thereof.

The Court settled the fact that sub-categories of dance forms do indeed fall under the scope of “artistic works” u/S.2(c) and are hence copyrightable. It was also made clear that not all kinds of usages of copyrighted works qualify as copyright infringement. It was held that “ in a case that involves fair use of a literary or theatrical work for private use (including research, criticism or review) the author or his legal successors cannot claim exclusive right under the Act.” So if a performance or dance is within the realm of fair use, no injunction can be issued. The Academy being an educational institution, any performance within the meaning of Section 52(1)(i) is subject to the fair use doctrine. As an amateur organisation or association, the Academy would also be immune from responsibility for any such performance before a non-paying audience.

12. ESPN Star Sports v. Global Broadcast New Ltd & Ors 2008 (3) KLT OnLine 1176 (Del.) = (2008) 38 PTC 477 (Del.) Delhi High Court (RFA (OS) No 25/2008).

This judgement differentiates between the broadcasters right and copyright and talks about the interpretation of the exception of fair dealing in the light of freedom of speech and expression – an oft claimed defense of news channels. The facts of the case were as follows:- CA(Cricket Australia) issued an exclusive license in favour of the appellant ESPN star sports for broadcasting rights of the India-Australia cricket series. The respondents are some parent companies of various news channels who ran shows on their new prime time which had short footages of the cricket match going on between the teams. The appellant alleged that the respondents commercially exploited the footage and ran them for more than the prescribed time on the pretext of broadcasting news prime time.

The appellant claimed that broadcasters right u/S.37 of the Act was distinct from copyright. The respondents on the other hand claimed that broadcasters right and copyright must be treated at par. Hence the appeal should be dismissed because of non-joinder of a necessary party (i.e.) the copyright owner (viz) CA. The respondents also argued that fair dealing cannot be pre-judged and can only be decided on a case-to-case basis. There is no law that lays down any limit on the length of footage that may be used by broadcasting organizations covering any sporting event. The respondents also pleaded that there is no basis for the plantiff’s argument that the respondent cannot utilize footage in excess of 30 seconds per bulletin and a total of 2 minutes per day.

The first Court of instance held that copyright and broadcast rights are to be considered at par and held that due to non joinder the suit is liable to be dismissed. After an appeal, the Court formed a two-judge bench and held that broadcasters right and copyright are two separate rights. Reasons given by the Court were:

(a) Inclusion of a separate definition of ‘broadcast’ in Section 2(dd) of the Act and not including it within the definition of ‘work’ (defined under Section 2(y)) that would be the subject matter of copyright protection u/S.13 of the Act.

(b) Copyright infringement being dealt with u/S.51 whereas infringement of broadcastingrights being dealt with u/S.37(3).

The Court also held that there were separate rights held by the appellant in the telecast which can be classified into two parts.

1. Live matches broadcast by the appellant as exclusive licensee of CA can be con-sidered broadcasters exclusive right.

2. Post-match and pre-match show, commentary by famous cricketers etc., must be considered as copyright owned by the broadcasters. Hence the fact that the appellant broadcasters have filed for injunction and infringement against the respondents must be considered a case of violation of their own copyright and hence the suit is not barred by Section 61 (owner of copyright to be party to proceeding) as the copyright owner is the broadcaster itself in this case.

The Court however could not pass an order of injunction because the event had already finished, but made observations favourable to the appellant and held that the defense of fair pleading cannot be attributed to the respondents.

The Court referenced the conditions laid down in Media Works NZ Limited & Anr. v. Sky Television Network Limited._[x] wherein it was observed that “fair dealing meant that the extract must be brief and should be considered in light of the length of the recording.” Based on the above judgment the Court held that since the respondents overran the show multiple times and had advertisements placed on the special shows, the main intent was commercial exploitation and it cannot be done under the garb of freedom of speech and expression of news channels.

Conclusion

      “In depths of soul, creativity blooms

      A tapestry woven with passion looms

      With words and brush, visions take flight

      Imagination’s spark, a beacon of light,

      In each creation, a glimpse of four worth,

      In each creation, a glimpse of our worth,

      Humanity’s art, an endless rebirth.”

The above lines have a deceptive similarity with Robert Frost’s poems. But his die-hard fans can recognize that it is the creation of ChatGPT based on a one-line prompt. Despite the evolution of copyright law, it must be admitted that jurisprudence is still in its nascent stage when it comes to generative AI- be it ChatGPT or Bard. In the backdrop of this technological setting, this article has attempted to outline a few landmark judgements in the field - the list being illustrative and by no means exhaustive. For instance, the seminal decision of the Apex Court in R.G.Anand v. Delux films (1978 KLT OnLine 1077 (SC)) which laid down the basic principles of idea-expression dichotomy does not figure in the dozen judgements enlisted in the article. Such is the case also of the decision rendered by the Allahabad High Court in Gopal Das v. Jagannath Prasad which considered two books written on the same theme and the judgement of the Kerala High Court in the Civic Chandran case (Civic Chandran v. Ammani Amma - 1996 (1) KLT 608) where an original drama was criticized by performing a counter drama.

Copyright law being the most versatile among all forms of IP law has been curated by the judiciary to suit the context -- whether it be social, economic or cultural. From the test of originality and remedies for violations to fair dealing provisions, jurisprudence has struck a fine balance. Transformative use has been recognized and clear commercial use unprotected while it has been stipulated that fair dealing has to be within the four corners of bona fide use, reasonableness, noncommerciality and de minimis provisions. Criticism and review have to be genuine and not merely a charade. As Courts rise up to the challenges posed by technology, the multifaceted jurisprudence on copyrights is expected to evolve amalgamating hitherto unknown terrains in a manner befitting the Cindrella of the IP family.

Foot Notes:

[i]    1997 (2) KLT SN 72 (C.No.72) (SC) : AIR 1997 SC 3011: (1997) 5 SCALE 453.

[ii]   Lucas film Ltd v. Ainswowrth (2011) UKSC 39.

[iii]  (1866-67) LR2 Ch App 307.

[iv]  AIR 1940 PC 55:1940 AC 112.

[v]   AIR 2014 Mad.25: 2013 (5) LW 429.

[vi]  2019(78) PTC 375 (Del) [CS(COMM:) 724/2017].

[vii] 2013 (54) PTC 419 (Del.) (CS(OS) 1213 (2011)).

[viii] (1937) 3 ALL ER 503.

[ix]  (1900) AC 539.

[x]   74 IPR 205.