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TMI Blog2003 (7) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... ed "A Woman of Substance". The copyright in that book has been, or is likely to be, allegedly infringed. Claims for infringement are also made with regard to two sequels of the said book and the serialised television version thereof which were produced by the authoress' husband namely the 2nd appellant. 3. The complaint is against a serial called "Karishma - The Miracle of Destiny" which has been financed and is quite ready to be produced and televised by the 1st Respondent who are a public limited company. They bear the Sahara name, and under that name there are several business undertakings running in India. 4. The respondents say that they intend to televise many more than two hundred episodes, in the evenings, not covering weekends starting from 9.30 P.M. According to them, eighty episodes have been completed and are ready to be televised. They say that they have spent a lot of money over two years for this project and the expenses are to be counted in rupees tens of crores and have gone to 100 crores and more. The expected annual turnover out of the serial including advertising is expected by Rs. 75 crores. They have already taken advance of Rs. 11 crores from intending adve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amend the plaint. 10. No fresh material of any importance whatsoever could be disclosed on behalf of the appellants to us which had come to light between the 28th of April, 2003 and the rising time of the Bombay Courts on the 2nd of May, 2003. 11. The fresh material and the only material which was relied upon came into being in the evening of 2nd of May, when Pammi visited the studio of Sabir where Talat Jani, another party to the suit and a director of the T.V. serial "Karishma" was also present. 12. The plaintiff No. 1 Barbara says that she came to know of the serial and the clash with her book from a letter of one Ms. Rituparna Roy, a Calcutta based lady, written to her sometimes in the middle of April, 2003. That letter, according to it, sent newspaper clippings. But neither the letter nor the clippings are mentioned in the Bombay plaint or petition. 13. Pammi has stated in her affidavit that after obtaining the studio tape from Sabir she made a copy of that audio tape into another audio tape and sent it to Barbara. What Pammi sent was produced before the interlocutory Court but the learned Judge did not listen to it as its admissibility was in dispute. It was kept in a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12th May telecast would already have been blocked. 21. The order obtained on the 7th of May was not served on the respondents either on the 7th of May or on the 8th of May. 22. The 9th of May was a Friday. It was also the birth centenary of Rabindranath Tagore and it is quite proper that such a date should have occurred during a copyright action. The Courts were closed on the 9th of May. The next two days were the weekend. On the 12th of May Mr. Ray who presented the case of the first respondent Sahara before us mentioned the matter before the Interlocutory Court and prayed for summary vacating of the interim order on the simple and single ground of suppression of the Bombay suit. It was submitted that the party having first gone to Bombay, and not having gone back there once again, even after obtaining leave to file afresh from there, a material fact which, if pointedly brought to the notice of the Interlocutory Court, would have, in all likelihood, materially affected the way the Court used its discretion in the matter of grant of the first interlocutory order. 23. The first interlocutory order has had a very great effect. It is that order which has caused, although not direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the appeal. We felt that it was not possible, there being an injunction operative for so long, not to continue the interim order until we had a chance to dispose of the appeal, no doubt, on an expeditious basis. Thus, we ourselves continued the interim order too. The order of 7th May thus got continued by the Hon'ble Supreme Court, by the Interlocutory Court disposing of the matter on affidavits and also by us. 31. While the matter was sub judice and very probably after the Supreme Court had passed the above order, the second version of Pammi's interview came out in the Cine Blitz, which is in some parts, different from the interview annexed to the Calcutta petition. 32. The main portion where the two versions differ is where it is mentioned in Cine Blitz but not in the petition annexures that the writer of the story of Karishma is Sachin Bhowmik, who is the fourth respondent before us. In our opinion, this is a most material portion and it was not proper to give a truncated version of the interview in the petition annexures. 33. The two versions of the interviews are so important for the purpose of deciding the interlocutory matter that those have to be read and perhaps re-r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .." implying that of course he himself has read the book. 38. In Sumit Roy's affidavit filed on behalf of Sahara and also others including Sabir it is denied that Sabir has read the book. 39. There is enough internal evidence in the interview, which we shall point out hereafter, to show that Sabir has not read the book; nor, incidentally, have either Mr. Sen or Mr. Ray who respectively presented the cases of the appellants and the respondent No. 1. In the interview, Sabir first says that the Karishma serial is his conception and his baby. Then he says, the story was got written by Sachin Bhowmik (because he is a genius, which we heard on the tape). He says that he did not want to take a risk. So he based the serial on "A Woman of Substance" a tested subject, the same being the saga of a woman's life from 20 to 80. 40. He then said, in the end, the grand daughter gets everything and that again is Karishma. He told Pammi "... if you have read the book..." and then referred to "the electrician... Neill... Blackie". He talked about the illegitimate son of the lady of the serial. To Pammi's question, about what the empire of the lady was called, when she became rich, he answered it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we do not intend to rely upon the contents of Aparajita at all. 44. We go by what is started in Sachin Bhowmik's affidavit and by what has come to be known to me of the book. I do not lay claims to having read "A Woman of Substance" carefully myself either. 45. The respondents argued that their serials are not yet fully filmed; although the broad storyline is there, it is not immutable. Depending on the wishes of the viewers and the necessities of keeping the serial continuously popular, changes and even violent changes might have to be made to the story and to the sequences of events and the events themselves. 46. They also argued that even if the interview is taken in the most favourable light possible to the appellants, yet there remain such differences between Aparajita and "A Woman of Substance" that one cannot be said to be a copy of the other. Sachin Bhowmik has stated that he read the book "A Woman of Substance" only after he had written Aparajita. He had the idea of somebody becoming rich from poor, from a person living in London, who was initially a sewer of buttons, but became thereafter very rich supplying uniforms to the London Constabulary and many others. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the book, being the time before the First World War. Blackie O'Neill was more of an odd job man. 51. Joe, the shopowner, was not an army officer but was conscripted. He was no more an army officer than Blackie O'Neill himself who was conscripted with him and fought with him and was in the same jungle where he was killed. All these would, in our opinion, be quite novel and new to Sabir. 52. Sabir was quite wrong when he said that the grand-daughter inherits everything. Even the four children of Emma (leaving Daisy out, who was always true to her like her true love), who had plotted to kill her, each of even those four got a million pounds (may be a million dollars, we are not very sure) and four million pounds is not nothing, not even to Sabir. The other grand children of Emma than Paula also got substantial bequests as per her expressed intentions. It is only a person who knows nothing of the details who can say, in the end it is again the grand daughter who gets everything and who is also Karishma. 53. Pammi and Sabir had known each other for several years. Pammi got no response from her attempts at getting "a lovely interview" from Talat Jani; she hit, with her no doubt keen j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially substantial for all practical purposes, and not exactly identical. 58. Under section 14 copyright is explained as meaning the exclusive right to "(i) reproduce the work (ii) to issue the copies of the work (iii) to perform the work in public or (iv) to make any adaptation of the work". Under section 2 of the Act, an adaptation is explained to mean "( ii) in relation to a literary work, the conversion of the work into a dramatic work; and (v) in relation to any work, any use of such work involving its rearrangement or alteration". Under section 51 copyright in a work shall be deemed to be infringed when any person "does anything, the exclusive right to do which is conferred upon the owner of the copyright". 59. Since the authoress is the owner of the copyright, a joint reading of sections 51, 14 and 2 would show that the TV serial would be an infringement if it is an adaptation of the book or any substantial part thereof. Section 14 mentions that the copyright owner's rights extend "in respect of a work or any substantial part thereof". 60. Mr. Sen submitted that if the intended adaptation of a substantial part of the book has been made out prima facie by his clients, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned or enumerated by instances in the Act. Their Lordships gave the following guidances in paragraphs 45 and 46 of the said judgment. Several other most helpful (with respect) guidances are also mentioned. But we extract only those which are the most useful to us. "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.... ...Thus, the fundamental fact which has to be determined where a charge of violation of the copyright is made by the plaintiff against the defendant is to determine whether or not the defendant not only adopted the idea of the copyrighted work but has also adopted the manner, arrangement, situation to situation, scene to scene with minor changes or super additions or embellishment here and there.... Care, however, must be taken to see whether the defendant has merely disguised piracy or has actually reproduced the original in a different form, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er subject to the condition that he must marry before the age of 25, or else the money will go to his cousin, the villain. The villain induces him to pass his time drinking and gambling so as to forget the condition. The family lawyer finds the hero on the eve of his 25th birthday and persuades him to go home. On his way home, the hero meets a beggar girl and out of compassion gives her shelter for night. The next day the lawyer turns up with a special marriage licence and insists on immediate marriage. The hero marries the beggar girl. 68. If one were asked to decide whether the defendant's play infringes the copyright in the plaintiff's play, quite a natural reaction would be, to place emphasis on the basic theme of both the plays, that is, if a marriage does not take place within a specific time the good person loses everything and the bad person takes everything. This is the common theme of both the plays. 69. The existence of common characters cannot also be denied. Both the plays show a cousin as the Villain. In both the plays the beggar girl happens to take the morsel out of the Villain's mouth at the very last moment. In both the plays the subject-matter is inherited fort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the idea of another author, but not the expression. The understanding of the basics of copyright law 75. Why is it that the theme of a play, like the marriage of an heir contingent to a beggar girl does not create a copyright ? Why is it that the plot by itself is usually not the subject-matter of a copyright? Why is it that identical characters, like a Villain cousin and the devising ancestor wishing his legatee to marry a young, these do not create copyright? 76. The answer is two-fold. The first answer is that these characters are common, no doubt, but too common. Therefore, there is no protection given by the law to the first writer who is not really the first writer at all. The above idea of the risk of a fortune being lost to others, the other idea, of, say, two persons looking alike, are not the subject of the author's original literary work. The second reason for not giving protection in this regard is even more important. If plots and ordinary prototype characters were to be protected by the copyright law, then soon would come a time in the literary world, when no author would be able to write anything at all without infringing copyright. Fathers, mothers, revenge, lu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough at a more refined level of intellectual operation, there is no final and exact way of determining what is a copy, or what is a copy of the expression, or what is a copy of the idea, or what is a copy of the idea only. This is why copy has never been attempted to be defined in any of the copyright Acts either here or in England, or to the best of our knowledge (which is not much), anywhere else in the world. It is an exercise doomed to failure from the very beginning. It will either become too long for an Act, seeking to encompass in it all the judicial pronouncements of value of all the civilized countries in the world in all the different cases, or it would be short, simple and wrong. 80. But the situation is not totally hopeless. It is not that because copy cannot be defined, there cannot be guidances and helpful suggestions which might be usefully considered by Judges when determining whether one work is a copy of another or not. The best way of finding these guidances is in the reported decisions. Several of these decisions were cited before us and we propose to deal with each and every one of those hereafter. With the reading of every new case of copyright, one becomes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiality of information which do not concern us. 85. The case is that of Fraser v. Evans 1969 (1) Queen's Bench, 349. To the point of possible defamation by publication, the "Times" replied that the materials were going to be defamatory, but if action were taken, they would plead truth. In regard to copyright, the newspaper took up the point of protection given by fair dealing of extracts of copyright material in a newspaper, which provisions would be found in the long section 52 of our Act. 86. Later on his Lordship again said as follows : "I think the injunction which has been granted should be removed. "The Sunday Times" should be allowed to publish the Article as their risk. If they are guilty of libel or breach of confidence, or breach of copyright, that can be determined by an action hereafter and damages awarded against them. But we should not grant an interim injunction in advance of an article when we do not know in the least what it will contain." 87. The principle of this case applies strongly to ours. We do not know what the serials are going to be like. We do not know the situations which will be shown. We do not know that scenes which will be displayed. We do not k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff argued before the Court of appeal that if access to the work is admitted, and if copying is established by demonstration of substantial similarity between the two works, then and in that event, the defence of not actually copying is not available to the defendant. It was said that this is the rule in America and that England should follow suit. 93. Mr. Chatterjee was right in submitting that whatever be the language employed by the Lords Justices, their Lordships did accept that rule as good law. 94. We are of the opinion that the said law is good law in India also. There is good reason for accepting this as good law. If a person has seen something and if his work is a substantial copy of that, then it is impossible for anybody to prove that that person had actually sat down and copied the work in his own private room or by his own private efforts. If he strictly maintains that he did, however, strong might be the similarity between the two. This is why the law does not allow this defence. It is for the same reason that the law does not allow the defence of ignorance of law, as it is impossible to prove that somebody knew some item of law, if he insists upon denying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealt with copyright in question papers. It is 1916(2) Chancery 601. Mr. Justice Peterson said, "Literary work includes maps, charts, plans, tables and compilations. It may be difficult to define literary work... but it is not confined to literary work in the sense in which that phrase is applied, for instance, to Meredith's novels and the writings of Robert Louis Stevenson... the papers set by examiners are, in my opinion "literary work" within the meaning of present Act." (p. 608) His Lordship also said :- "Copyright Acts are not concerned with the originality of ideas, but with the expression of thought and, in the case of literary work, with the expression of thought in print or writing. The originality which is required relates to the expression of 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." 98. Therefore, if and when the serials are exhibited and seen, it appears to the Viewers that those have originated from people like Talat Jani and Sachin Bhowmick who allegedly brain-stormed for the dialogues, etc., then in that event, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideas and the copying of artistic expressions. The football betting case is that of Ladbroke Ltd. 1964(1) All England Reports 465 and it is a decision of the House of Lords. 101. The point of existence of a copyright in football betting coupons arose when the appellants decided to send out coupons which closely resembled the respondents' coupons. The appellants maintained that only certain parts of the respondents' coupons are copyright. 102. The point of what can be copyright, therefore, squarely arose. Mr. Justice Peterson's above statement that what is worth copying is worth protecting is quoted by Lord Reid at page 471, by Lord Hodson at page 478 (top) and by Lord Pearce at page 481, at the very end of the judgment. 103. The above is only a matter of interest to us. What concerns us is statements on the idea - expression theme. Lord Reid extracted one of the passages quoted by us above from the judgment of Mr. Justice Peterson, where his Lordship explained that Copyright Acts are not concerned with the originality of ideas, but only with the expression of thought. Lord Evershed said as follows :- "It is not in doubt that what amounts in any case to substantial reproduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e concerned with conflicting claims of making a substantial copy and of not making any copy at all whatsoever. 107. The case of Hollinrake v. Truswell 1894 Ch. 420 was also cited to show that in mere ideas there is no copyright. This dealt with a work which enabled the cutting of the hand of a lady's dress. Lord Justice Lindley said that it was unnecessary to consider the question of infringement but still went on to say as follows :- "The defendant may have got her own idea from the plaintiff's chart, but the Defendant has not copied more than the plaintiff's method of measuring. Copyright, however, does not extend to ideas, or schemes, or systems, or methods; it is confined to their expression; and if their expression is not copied the copyright is not infringed. The case of Baker V. Selden, already referred to, illustrates this very well. It was there held that the author of a system of book-keeping was not entitled to any monopoly in the system, but was only entitled to prevent the other persons from copying his description of it. . . ." (p. 426) If this dictum is applied to our case it can be said, and we say so, the plaintiff No. 1 has no monopoly in the idea of a poor wom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh. The above statement was made with reference to pictures, but it is equally applicable, if properly understood to a book and its serialised versions in T.V. serials. 111. Mr. Sen, appearing for the appellant, relied for exposition of the copyright law, mainly on passages from text books. He cited the well known and celebrated work of Copinger & Skone James and gave us passages from the current edition. In paragraph 7 - 143, the following passage occurs:- "Dramatisation of non-dramatic works. Infringement of this kind may occur when a novel is turned into a play or a screen play for a film. In such cases, there may, of course, be sufficient copying of the language for the defendant's dramatic work to be a reproduction of the plaintiff's work, so that the defendent will have infringed simply by copying the literary work. However, when there is no language copying, but, for example, the defendant has, to a substantial extent, taken the incidents and plot from the plaintiff's novel and turned them into a dramatic work, this will amount to an infringement by the making of an adaptation." 112. The learned Owrk mentions in the footnote referred to after the above passage as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite' law that there is no copyright in ideas, they proceed to express that this refers to mere general ideas and treat the ideas-pattern as part of the expression. ...It is of course the law that something can be too abstract or too vague to be capable of copyright protection and a line must be drawn somewhere, but references to a supposed principle that copyright is confined to expression, do not assist in drawing that line." 115. In the illustrations given in paragraph 2.77, the 4th illustration mentions a case and then says :- "...the Court of Appeal held that there was no infringement in taking the plot of a play. This is not necessarily so today." Just after this illustration a footnote refers the reader to paragraph 2.86 of the said book. In paragraph 2.86 occurs the beggar girls illustration, which is no doubt an illustration of the plot being taken with impunity and there being no copyright in the mere idea of the plot. 116. In our opinion, though the text books cited by Mr. Sen appropriately warn the reader of the difficulty in applying the test, that there is no copyright in an idea but only in an expression, yet these text books cannot, and do not, do away with that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Parliament and the plain words have to be given a plain, fair and reasonable meaning. 123. In the above sub-section it is mentioned that the added definition applies in relation to any work and work is defined in section 2(i) as including a literary work. It is impossible nonetheless to accede to Mr. Ray's submission and say that the definitions given by the Indian Parliament notwithstanding, we shall assume that they have in fact copied the English Act only. We unhesitatingly reject this submission. 124. In passing, we mention, that Courts might have to interpret on a purposive approach, if the words and definitions employed by Parliament lead, on giving of a plain meaning to those words, to conclusions of ridiculousness or absurdity. In the very same section 2, sub-section (a)( ii) states that adaptation means in relation to a literary work also the conversion of the work into a dramatic work by way of performance in public. Now, sub-section 2(o) states that literary work includes computer programmes and computer databases. If one were to argue that computer works and computer databases cannot be converted into dramatic work by way of performance in public, one might have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light change. 129. When, however, a ship's captain goes on an altered course of journey or voyage, he might be taking both a slightly different course, or a totally different course. A slight alteration of the course might land him at Madras instead of Bombay but an altered chartered party might take him to Tilbury instead of Haldia. This would be alteration in the sense of violent change. 130. Any reader having the time or wish to do so can think of numerous instances where the word "alter" will fit both the slight change meaning and the large change meaning. 131. In our opinion, the large change meaning cannot be ascribed to the word "alter" in section 2(a)( v) of the Copyright Act, 1957, because it renders the interpretation absurd. Minor change, slight change, not making the original something beyond recognizable possibilities, changes in some of the details, this would be the meaning that would fit the word alter in sub-section (v). In our opinion this sub-section might have a very good bearing when applied to copyrights of computer programmes and databases, but in relation to literary works, the sub-section does not bring in any very great changes in the law; one can at be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of his habit by Sigmund Freud. Even assuming the "idea" of Holme's cocaine addiction was copied by Meyer from Nusto's article without any reference to Sir Arthur Conan Doyle's earlier works, the Court finds as a matter of law that the copying involved only an "idea" and not "an expression of an idea" and therefore, is not actionable under the copyright laws." In our opinion, the case provides a good example where a similarity, of what might be thought to be an important central idea, does not tilt the balance at all in favour of the plaintiff suing for infringement. 133. He gave us the case of the Circuit Court of Appeals in Nichols v. Universal Pictures Corpn. Second Circuit, 1930; 45 F. 2d 119. This will also be found in Nimmer. The decision is of the celebrated American Judge Learned Hand when on Circuit. The illustrious Judge said as follows in different parts of the judgment. "As we think the defendant's play to unlike the plaintiff's to be an infringement, we may assume, arguendo, that in some details the defendant used the plaintiff's play, as will subsequently appear, though we do not so decide. It, therefore, becomes necessary to give an outline of the two plays. ...U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore than match the power of masses of details, i.e., messes of mundane or ordinary weapons of destruction. We are of the opinion that the admissions obtained by Pammi from Sabir are nowhere near this type of extraordinariness. They do not make out even a prima facie case that the actions, the scenes, the events, the details and the portrayed conceptions, serial by serial, would match either substantially or at all, the situations and incidents in the book. 136. This is the appropriate place to mention a very remarkable thing. Although copyright action is about the details, although copyright action is about similarities of expression, similarities of story, scene, situations, character and the entirety of the progress of the literary work, yet neither Mr. Sen who argued out the appeal nor Mr. Ray, who appeared for the respondent No. 1 nor Mr. Anindya Mitra nor Mr. Samaraditya Pal appear to have read the book "A Woman of Substance" at all. The only person who seemed to have read the book was Mr. Mitra's son Abhrajit Mitra who is, comparatively speaking, a raw junior. 137. I was at least venturesome enough to take the book home everyday and get it read by my wife; I was also suffic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the details, which are the expression, and the only copyright. 141. At the time of giving reply, Mr. Sen gave us a very interesting judgment, delivered by Mr. Justice Pritchard in the High Court of New Zealand. It is reported at [1986] Fleet Street Reports, 63. Large parts of the judgment were placed before us and we propose to extract some portions of it. The Copyright infringement was claimed in regard to pocket packs of a fruit called Kiwi fruit, which is common like the bird in New Zealand. It is now available in many parts of India although it was practically unheard of even two years ago. 142.Pritchard, J., said as follows in the judgment :- "This proposition touches on the question of the idea/expression dichotomy, which is probably the most difficult concept in the law of copyright. It is no longer universally accepted that there is no copyright in ideas. ...The concept that copyright does not protect ideas is found unacceptable by the authors of several reasoned text books - e.g., Laddie, Prescot and Viotria at pages 31-33 and Lahore on Intellectual Property in Australia (Paragraphs 1121, 1151). I think the conflict between these two philosophies is more apparent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted, solid and good concept of copyright law. We accept it as holding fully in India, as the Hon'ble Supreme Court has itself said in R.G. Anand's case (supra). We proceed now to apply this law to judge the prima facie strength of the plaintiff's case on alleged infringement of copyright. Prima facie case of infringement of copyright 144. In our opinion, the plaintiffs have, as yet no arguable case to go to trial. If Pammi's interview is taken at full value, it can only mean that the basic theme of 'A Woman of Substance' has been borrowed and there are some common characters. The Hon'ble Judge of the Interlocutory Court has also held no more than this. In our opinion, this is just an idea, the idea of rags to riches, the idea of introducing certain characters which ideas are in no way uncommon or copyright. One single incident of the heroine getting an illegitimate child is an incident so common, and therefore, of such insignificant importance, that no one would dream of stopping a project of Rs. 100 crores and much more on the allegation of copyright that the heroine of the plaintiffs' book also bore an illegitimate child. The same thing applies about an army officer even after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been laid and a lot of argument has been made. It would be just to the litigants only if we dealt with all these arguments to a reasonable extent and gave our conclusions thereon. It is also necessary to do so for the additional but important aspect of assessing costs and damages for obtaining injunction wrongfully. These are also important matters in a litigation of this magnitude involving financial stakes of Rs. 100 crores and more. Two Further Illustrations 147. Before we pass on to the other topics, we would like to add two more illustrations to explain the idea/expression dichotomy a little further. The purpose of giving these illustrations is this. The law protects originally of expression but not originality of the central idea, not merely because of the balancing of two conflicting policies. Those policies are as follows. The first is that the law must protect originality of artistic work, thereby allowing artists to reap the fruits of their labour and stopping unscrupulous pirates from enjoying those fruits. The second policy is that the protection must not become an over protection, thus, curbing down future artistic activity. If mere plots and character were to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is never stronger than when fighting alone. 152. In the film "Ganashatru', the prosperity of the place is owed to a temple which is very popular and constantly visited. Its 'Charanamrita' meaning the waters which are obtained by washing the feet of the Deity, were found by the scientist to be foul and likely to cause disease of the Stomach. 153. A similar conflict as in The enemy of the people arose. The film ends on the note that the people, especially some students, prepare to support the scientist, who had quite given up hopes of obtaining any public support. 154. A superficial examiner would say from a comparison of the play and the movie, that the film has been copied. That might be the reaction of the layman, no doubt. But it is not a copy, according to the copyright lawyer. Although the central theme is the same, it is but an idea. The idea is novel and no doubt the idea is central to the creation of a dramatic conflict. Once the idea of this conflict is conceived by a dramatist, it becomes much easier for a future dramatist to write a play on the same theme. 155. But the point is, that this is permitted by the copyright law. The theme can be borrowed. The originality in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... single question would finish of all prima facie case of the plaintiffs and cause them to fail on this primary ground alone. We go on to the other topics now. Injunction now, or damages in the suit, later on 159. The learned Judge found that even if there is a prima facie case made out by the plaintiffs they should fail because the balance of convenience, and the likely prejudice to be caused to the two sides on the two possibilities of grant or refusal of injunction, indicated that way. 160. His Lordship placed emphasis on the fact that Rs. 100 crores had been invested and Rs. 11 crores already taken from advertisers who relied on the serials being broadcast. The names of the advertisers are given. Mr. Sen made very pointed remarks about the break up of the 100 crores being simply Rs. 60 crore for production and Rs. 40 crores for publicity. He also said that no contracts with any of the advertisers are annexed. He argued that the first plaintiff might well be a bubble company, which would never have any means of meeting a decree for damages even if damages should follow in the end after the trial of the suit. He also said that computation of damages in such cases as these prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Bombay actors and actresses is made with a view to turning it into 280 episodes, the project costs money. Advertisements in between the serials also cost money and the marketing wings of wealthy commercial establishments spend a lot of money in this. It is not un-reasonable or fanciful to estimate, even without details of fact or figures, the rough cost of a project of the nature of Karishma to be of the order of rupees hundred crores. 166. We do not dispute the propositions of law made out by Mr. Sen or the authorities cited in that regard. It is true that if there is a good or reasonable prima facie case of infringement, injunction should be granted, because a person cannot be allowed (in breach of the 8th commandment, as his Lordship quotes and says) to steal another's property, even if it is only intellectual property, and enrich oneself by such theft. But if there is no such prima facie case, no question of grant of such injunction arises. 167. On the point of balance of convenience, we are in respectful agreement with the Hon'ble Single Judge that much the greater prejudice would be caused to Sahara by killing their whole project altogether, than by allowing exhibitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial had come to light then. The fresh material and the only material of the plaintiffs is Pammi's interview, in which she sneaked out the plaintiffs' material, from the creative director-cum-producer, Akashdeep Sabir, in the evening of 2nd May, 2003. After obtaining of the interview, the plaintiff No. 1 did not go back to the Bombay High Court from which leave was obtained to file afresh. They came to Calcutta instead. It is mentioned clearly in paragraph 31 of the Bombay plaint that the whole of the cause of action has arisen in Bombay. Pammi's interview also had taken place in Bombay. Contrary to these allegations, parts of the cause of action are alleged in the Calcutta plaint to have arisen within the territorial limits of the Ordinary Original Civil Jurisdiction of this Court. Counsel had made no attempt on the 2nd May, 2003 to ask for any interim order from the Bombay High Court, although a petition had been filed for obtaining of interlocutory orders from the Bombay High Court; with the withdrawal of the suit, the petition had no further ground to stand upon. 173. It was pointedly submitted that if these facts were brought to the notice of the Court in the above sequence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of his Lordship's order) as follows :- "However, after hearing the parties it appears to me that it would be proper for me to continue with the order on the undertaking of Mr. Sen which is submitted on instruction of his Advocate on Record. The interim order is modified to the extent that the Receiver shall only make inventory. Mr. Sen's client is directed to file an undertaking by way of an affidavit to the extent that if any damages or prejudice is being caused to the respondent, his client shall undertake to pay such damages and cost for the same to have this interim order in their favour, in the event the petitioner fails to succeed in this application. Such affidavit to be filed within one week from date." The affidavit filed by the plaintiffs is not in accordance with the undertaking but that is a separate topic to be dealt with by us later. 176. What is important to note, at this stage, is that the only point urged by Mr. Ray was turned down by the Court only on the ground that acceding to the submission did not appear to his Lordship to be proper. 177. The finding of his Lordship is extremely important. As we have said before, if suppression is alleged before the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of these facts amounts to a gross suppression of a very material fact and we are of the prima facie view that a litigant who indulges in such a practice virtually acts in abuse of the process of the Court.... We make it clear that subject to this, the order Court should not be construed as staying the hearing of the injunction petition before the learned Judge of the First Court." Their Lordships also noted paragraph 31 of the plaint in the Bombay suit (which mentions that the whole of the cause of action is there) and the said paragraph can be found at page 117 read with page 210 of the petition cum paper-book before us. The order of the Court of Appeal dated 12-5-2003 has not survived. On 22-5-2003 the said order was set aside practically by consent of the parties. The Supreme Court said:- "...we make it clear that we have not expressed any opinion on the issues arising in these appeals because the appeals are being disposed of by consent." 181. Their Lordships also clarified that the matter was being remitted to the Single Judge to dispose of the interlocutory application after hearing the parties and considering all the arguments of the learned Counsel. It was also said th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n before the Interlocutory Court is, therefore, thoroughly unacceptable to us. 185. No adequate explanation came before us why the whole of the cause of action from Bombay came, by reason of the events between 2-5-2003 and 7-5-2003, to Calcutta also. We have found no adequate reason whatsoever explaining the plaintiffs' choosing one High Court instead of another, although that other High Court had been first approached by the plaintiffs, on their own free choice. 186. There is no finding by any Court yet that the suppression made by the plaintiffs is not suppression of a material fact at all. On the other hand, one Division Bench has already held that these are material facts. We have no hesitation in re-entering the same finding. If I were sitting in the Interlocutory Court and if I were told that just the other way a Bombay suit had been filed, and withdrawn with liberty to file afresh, I would have surely flet myself put on inquiry, as to why the parties had travelled in such a brief space of time from Bombay to Calcutta. Interlocutory matter depend a lot on facts and common sense. Thus, inquiries by Court compel counsel to reveal materials which put the case on facts in its p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revenue. The matter being returnable before Court thereafter, the revenue argued that the Princess had suppressed serious material before the Court. She did have property in England, and her brother's flat in London was really hers and her brother was only her nominee. The source of purchases money of the flat and other details of the monies involved in that regard left no manner of doubt about her real ownership. The Divisional Court, on this ground of obtaining of an interim order on suppressed material, dismissed the application of the Princess altogether. The appeal of the Princess to the Court of Appeal failed. The name of the case is King v. General Commissioners, ex parte Princess Edmond De Polignac; the case has been jocularly known in the Bar Library Club at Calcutta at the Russian Princess' case because there was nothing Russian in the case, and it was the territory of the only one of the allied powers, which was not to be found in the case. I am not aware whether it was called as the Russian Princess' case (supra) in Calcutta between the first war and the second, but from the time I came to know of the case for the first time (in or about 1970, from Mr. Amiya Nath Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut simply say 'We will not listen to your application because of what you have done'." (p. 505) 194. Lord Justice Scrutton stated at page 513 in the beginning of the judgment that the Princess Edmond De Polignac was an American lady who had married a French subject. His Lordship went on to conclude as follows:- "It may be that the result of our decision is that the applicant loses her remedy. If so, she has herself and her legal adviser to thank for it." (p. 519) 195. The effect of this case, in the light of order 39 rule 4, is material in this regard. It is not necessary to set out the provisions as the code is easily available. 196. Mr. Sen argued on the basis of the express words, that the code enjoins, that upon suppression being pointed out and established by the other side, the Court will merely vacate the interim order already obtained. Mr. Sen, submitted that the code does not go so far further as to say, that the application itself will be dismissed and no affidavits at all need be called for. 197. In our opinion, this point is very simply answered. As the case of the Princess demonstrates, the power to dismiss for deception or concealment practised upon the Court is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court does not want the litigants to do it in future. People who suppress and conceal only understand adverse effect and punishment. The adverse effect according to law is a dismissal of the application. This is the appropriate result. In our opinion, even apart from the plaintiffs' having no case on merits whatsoever as on date, their application should be dismissed even without consideration of the merits for concealment practised upon the Court by deliberately suppressing relevant and important materials for the purpose of obtaining an ad interim order behind the back of the adversaries who were hereby seriously affected. The Undertaking for Obtaining of the Interim Order : 203. On the 12th of May, 2003 when the Hon'ble Single Judge maintained the order of 7-5-2003 in the face of the point of suppression being pressed, his Lordship said as follows :- "Mr. Sen's client is directed to file an undertaking by way of an affidavit to the extent that if damages or prejudice is being caused to the respondent, his client shall undertake to pay such damages and costs for the same to have this interim order in their favour, in the event the petitioner failed to succeed in this applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of infringement of copyright off the ground even one millimetre. This is because the plaintiffs have no copyright over the central theme of a woman rising to power, or there being characters about her, like an old and sticking friend, Blackie O'Neill, a lover from the house where she was working, an Army husband and some other person whom she might have married or might have fallen in love with at sometime. These ideas and characters are too stock and too common to confer copyright. Events and incidents surrounding these characters which build up the story of the drama, these are the meat of copyright. Establishment of copyright infringement is an exercise in detail. No such exercise could be undertaken by any of the parties. How lacking in details the case is, can be no better exposed, than by saying that neither leading Counsel engaged in the case of infringement of copyright of the authoress' book "A Woman of Substance", had read the book or a substantial part of it. How can anybody establish infringement in copyright of a book when he has not read the book at all? 210. This brings us to the point of the application being hopelessly premature. That somebody has not read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements are sadly lacking in details, the break up of Rs, 100 crores is only Rs. 60 crores production and Rs. 40 crores publicity. The criticism is well-founded, but just as, if one buys a new ordinary car in India, the cost is somewhere near Rs. 3 to 8 lakhs, be it a little more or less, so also, if a party makes a T.V. Serial intended to run to some 300 episodes, and has already filmed 80 episodes starring at least one leading Bombay film actress, the cost can justly be claimed to be of the order of Rs. 100 crores, even if it is not proved exactly. We are not passing a decree on this calculation. We are only assessing damages, on the basis of the undertaking to be given by the plaintiffs for payment to the respondents on account of wrongful obtaining of the order of injunction, and which damages are in any event at once payable. For this purpose the above assessment is reasonable and just in our opinion. 214. Only a percentage of this will be earned as profit per week. Again, because the profit has not been earned for the last three months or so, does not mean that the profits will not be earned ever. Damages for wrongful injunction are, therefore, limited to the delay in ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pression of the idea by the author of the copyrighted work". (p. 140) 216.3 Prima facie case : Respondent No. 2, who granted to his woman friend journalist the interview, admitted to borrowing only the plot and some characters. Copyright infringement cannot be established on this alone. There is no prima facie case at all yet. Infringement can be established only by comparing and showing similarity of details, events, situations, expressions of language and imagination. Learned leading counsel of both sides had not even read the book. How can infringement be established when even the book had not been read ? 216.4 Balance of Convenience : The respondents say they have spent over a hundred crore and taken eleven crore from advertisers. If the injunction continues, on this scanty material, their project will be finished. The interlocutory application is premature. If 15-20 episodes are shown, then details of similarity can be established; the plaintiffs might, we say might, have a prima facie case then ; they have none now. If 15 or 20 out of 300 episodes are shown, the plaintiffs will hardly suffer any loss of value of their book ; if an injunction is obtained after 15/20 episodes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the usual undertakings. 218. The appeal of the appellants is thus dismissed with the above order as to costs and damages. The learned first Judge had also refused to continue injunction on the ground of inconvenience and prejudice. His Lordship directed, however, furnishing of Rs. 25 lakhs Bank Guarantee by the respondents. We allow the respondents' cross-objections in this regard. The obligation to furnish Bank Guarantee is hereby lifted. 219. There will be no protective interim order in aid of the suit henceforth; the interlocutory application of the plaintiffs is dismissed as above. The telecast of the serials can start this evening, so far as orders of Court are concerned. 220. Stay of operation of our order is prayed for by Mr. Bachawat for the appellants. Since the materials of the plaintiffs are prima facie zero, as yet, since they suppressed relevant material and obtained an interim order, since the stopping of the serials at this stage can only be a result of TV Channel disputes and not a bona fide fear that the copyright in the book will be infringed (nobody having yet seen a substantial number of episodes), the prayer for stay is unhesitatingly and emphatically t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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