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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 ..... bstance ". 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 advertising ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome to 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the ex parte order. But by that time the 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f operation of the order for a fortnight. By that time we had started hearing 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 pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abir appears to have read the book. In one part, he airily says to Pammi, "If you have read the book...." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh envelope and sealed up once again. 43. Since the appellants have not seen what we have read, although cursorily, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect name which is Blackie O Neill. He was not much of an electrician, in the book and there was not much of electricity in the times which are portrayed in that part of 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions are therefore the first things to see. 57. When we set out the purport of certain sections and sub-sections below, although we use inverted commas, the extracts are to be understood as materially 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 copyrig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in copyright cases is to determine whether one is a copy of the other or not. 65. Neither the Act of 1911, nor the Act, 1957 defines, whether inclusively or otherwise, what a copy is. Thus, what the right of a copyright is, is not defined or explained 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, situati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... villain. The Villain shoots him but makes it look like an accident. The hero defeats the machination of the Villain by bribing a beggar girl out of the streets to marry him before his death can ensue. The defendant s play The hero has inherited a fortune from his father 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 play ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racters and incidents common to the genre (lurid melodrama). Held, the defendants had not taken a substantial part of the plaintiff s play - Rees v. Melville [1911-16] MCC 168, CA." 74. We now explain what we understand of the rationale behind the basic copyright law which is, that you can borrow 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 reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifficult to answer or even to explain. The best answer is that there are no final answers yet, and there is no hope that there will be any final answers ever. These are situations of legal assessment. Just as there is no mathematical formula for finding out when it is just and convenient to appoint a receiver, similarly, although 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d after according the interview he became apprehensive that the report thereof in the papers might put him in difficulties and prejudice. He sued to obtain a restraint order alleging as one of the points that the publication of the information obtained on interview would infringe his copyright in the reports. There were points about confidentiality 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that those submissions tend to help the respondents rather than the appellants, is a matter of no importance. We shall explain this. 91. In regard to casual connection a point had been raised by the defendant that he had not copied the music consciously. It was not said that he had not ever heard the copyright work but conscious copying was denied. 92. Counsel for the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some occasion walk into Court and say that he will happily suffer a decree involving infringement; short of such an admission of liability itself, nobody s statement about adaptation or even copying, can be accepted at face value, because a copy of a copyright work is a technical thing, and quite difficult to determine. 97. The next was the case of the University of London Press, which 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n we deal with the football betting bills case, it will be found that this statement is again and again used by their Lordships, because a point arose that football betting bills, which only give the possibility or chance of betting, cannot be a subject-matter of copyright. 100. Mr. Ray gave the University of London case to emphasize before us the basic quality of copyright problems i.e. the copying of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 106. Before we leave this case we, make this remark with regard to the very last portion of Lord Reid s dictum that, in our country that would have to be read along with the 1995 amendment introduced to section 2( a ) of the Act, by which, adaptation in relation to any work has been defined to include "any use of such work involving its rearrangement or alteration". But here we are not concerned with a case of rearrangement, we are 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 cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same idea which is suggested by the copyright may be expressed by another painting or drawing which is in no sense a copy, and does not borrow its design - thus indicating that the definition is defective insofar as it states that a copy is that which comes so near to the original as to give to every person seeing it the idea created by the original ." 110. So, if a viewer of the serials gets the same idea which is created by the original, it is simply not enough. 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 reprod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guage or notation; and once it is conceded that the protection is not confined to the actual language or notation used, it must follow that what remains and is protected, consists of that collection of ideas, thoughts or information. ...However, lip service continues to be paid to what has been called the ideas/expression dichotomy. Sometimes, courts content themselves with stating the proposition and then proceeding to ignore it if inconvenient. At other times, while they say it is trite 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing should be given full weight by judicial interpretation, and we should read the Indian amendment as an exact or almost exact replica of the English amendment, not merely in form, but also as regards content and meaning. 122. We are unable to agree. This type of statutory construction is not permissible. One is not permitted to impute to our parliament both the fact of copying and the charge of copying badly. If Parliament has said something, may be following some Act somewhere else, may be unwisely, yet it is law made 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when people slightly had their suits altered to match with a slight change and necessities occasioned by the inevitable progress of life. This would be used of the word "alteration" in the sense of a slight change, or a change at the fringes. The expression "alter ego" is a Latin expression but by constant use it has almost become English. It means the other I, and alter ego would not be much different from ego, who is I myself. It would be like me and my image in the mirror, or may be like two brothers who look very much alike. This again is a meaning of slight 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stributing and selling in 1974 a hard cover and paper back edition of a book entitled. The Seven Per cent Solution, and by making and producing a feature length film of the book known by the same time. ...Here the similarity between the article and the book is limited to the idea that Sir Arthur Conan Doyle misled the reading public in the Final Problem as to the real activities of Sherlock Holmes in Central Europe, that Holmes was really addicted to cocaine at the time, and that Holmes friend, Watson, tricked Holmes into following Professor Moriarty to Vienna so that he could be cured 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfringement, not even a prima facie case of infringements, let alone the main trial. 135. The details are everything in copyright actions. It is the easiest thing in the world to take a fat book running to hundreds of pages, and to take a serial which will go into about 300 episodes, and to say in the three or four lines that these are common to both. If what is common to both, both of which are large, can be said in so few words, then the similarity so described, must be so central and so essential and so extraordinary, that like the magic quality of a very small looking nuclear bomb, it can more 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, altho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... features to make out a prima facie case for infringement. May be, the exercise is fruitless now because the serial has not yet been exhibited. Be that as it may, we say confidently that even eminent and highly prized counsel did not bother to read the book, the copyright of which was the subject-matter of this appeal, because and simply because, there are hardly any copyright actions in India, and the copyright law is very imperfectly understood, if at all, and because it is not realized commonly that infringement of copyright can be demonstrated by, and only by, the attention to details, and analysis of the similarities 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 pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s protected by the grant of a patent." 143. One notes with interest that although the learned Judge quotes authors who advocate the modern and fashionable view, that the idea/expression dichotomy is no longer acceptable to modern lawyers, yet his Lordship goes on to expound this very dichotomy of idea/expression. The manner in which his Lordship proceeds to expound this idea, is, with respect, quite striking and helpful. It is but nother block of stone or brick to the edifice which is being built and which will never be finally built, which is the law of copyright relating to idea/expression. The concept of idea/expression is a time-tested, 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 bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en refused fully on this ground and this ground alone. We are to note that his Lordship has, with his Lordship s considerable wisdom expertise, (we say this again with the greatest of respect) passed an order with which we shall ultimately find ourselves in substantial agreement; but we shall only vacate the direction for furnishing of bank guarantee. Before we can do that, we have to traverse a lot of other ground. 146. We could have come to the above conclusion here and now on the above single ground also, which is also the central point of the controversy between the parties. But there are other points of considerable importance on which a lot of emphasis 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 woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the cost of the health of the tourists. According to him, many people of the watering place would be ruined if the truth were made open. The younger brother s policy was, that the truth must be told, whatever the consequences. It was morally impermissible to permit or invite tourists to use the foul waters and allow them to ruin their health, when the fact of the waters being foul, had been found out finally. The end of the play does not find victory for the younger brother. He makes two nice statements which read roughly as follows in the Modern Library English translation, which is all that I have read. One is, that the majority is always wrong; and the second is, that one 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 scientis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o not cast away pearls and the intuition had, just this once failed Shakespeare because, no fault of his, he had never visited India in his time. 158. That the central idea, the story, the central theme is not at all everything to the art, is sufficiently explained by these two illustrations. So, even if what Sabir says is true, and the serial is based on A Woman of Substance, and even there is a certain "commonality of characters" as the Hon ble First Judge records in his Lordship s judgment, the prima facie case of the plaintiffs still does not even begin to take off. The copyright lawyer would simply say, a common theme, common characters, all these there might be, but so what? That simple and 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, indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of transmission to the Hindi speaking public. Balancing these factors his Lordship refused to grant injunction, only directing the furnishing the bank guarantee of Rs. 25 lakhs by the respondents for protecting the plaintiff s suit. 163. We are aware that if the suit should succeed (we have already held that it has no prima facie chance of success as yet), then and in that event, Rs. 25 lakhs would perhaps not be an adequate or realistic measure of damages, in case, of course, the serial is a success. 164. Though Mr. Sen made pointed remarks about the break up of Rs. 100 crores being only Rs. 60 crores plus Rs. 40 crores, the Court cannot lose sight of the realities of the situation. 165. When a serial with circulating 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round alone. Before we come to the law, let us relate once again the details of the alleged suppression. 171. It is said that the first interim order of 7th May, 2003 was obtained wrongfully from the Court by the plaintiffs by suppressing important and vital material which should have been told to the Court and which was very likely to affect the Court s discretion, had it been brought to the Court s notice. 172. The material facts are these. On 28th April, 2003 the plaintiffs had filed an earlier suit in Bombay, of which we have spoken in the beginning. They withdrew it, with liberty to file afresh, on the 2nd of May, 2003, stating through counsel that fresh material had come to light and it would be inconvenient and cumbersome to amend the plaint. No fresh material 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 inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials upon which the infringement action is based. This statement or submission in the plaintiffs petition is absolutely inconsistent with the prayer sought for. The prayer was for stopping the telecating. The telecasting is the best material for demonstrating infringement of copyright. The reason why interim order was asked for, without giving notice, was a reason which had no legs to stand upon. 175. When the Hon ble Judge was approached by Mr. Ray for vacating of the interim order in the morning of 12th of May, 2003 the only point pressed was the point of suppression. No finding is entered whether the suppressed facts, according to his Lordship are at all material or not. All that is said, as reason for continuance of the order is (to the best of our understanding and reading 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther relief. A judgment was delivered by the Appeal Court. The Court said inter alia as follows : "Instead of filing the plaint in Bombay High Court, unfortunately the Calcutta High Court was moved without a whisper of the Bombay High Court proceedings ...The very fact that leave was obtained from Bombay High Court shows that the subsequent Suit will be on the same subject-matter, and but for that leave, the subsequent suit is barred.... The learned Judge of the First court should have vacated the ex parte ad interim order dated 7-5-2003 after his Lordship was apprised of the Bombay High Court proceeding and the order and specially when those facts were withheld from his Lordship.... Apart from anything else the conduct of the appellant as stated above disturbs conscience of this Court.... Suppression 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssibility of having any application heard immediately as was incumbent. The order of the Court dated 7th May of 2003, it was submitted, was received after 4 p.m. on May 8, 2003 and due steps were taken for service. The order and the pleadings were only despatched by courier on May 8, 2003 immediately after having the order." 184. We do not wish to place any reliance, in the interest of the plaintiffs themselves, on the submission made by learned Counsel to us, as to whether the closure of the Bombay High Court for Summer Vacation, is a matter of absolutely any consequence for obtaining an interim order from the Bombay High Court. Like all other premier and other High Courts, the Bombay High Court has a full and well geared system of appropriate and adequate number of Vacation Benches operating. The explanation given by Mr. Sen 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, in point, is, as we have said, the case of the Russian Princes case. The Russian Princess case 189. Although decided more than 80 years ago, and in England, this is still the root case in regard to grievances of suppression made by the party who has suffered an ex parte ad interim order. The case is reported in 1917 King s Bench Division 486; it was a decision of the Divisional Court affirmed by the Court of Appeal. The facts were briefly these. An American lady, who had successively married two members of the French Gentry, was taxed in England and certain assessment orders were issued. She moved for the writ of prohibition alleging that the authorities had no jurisdiction to tax her in England as she had no property there. The Divisional Court passed ad interim order of prohibition, upon the application being moved, in the absence of the 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived". (p. 495) 192. Mr. Justice Low, also of the Divisional Court said as follows : "The statements made in the affidavit on which the rule nise was granted were very far from being honest and candid. That being so, it seems to me that this Court, having been exposed to an attempt to mislead and deceive it, has no alternative but to discharge the rule". (p. 498) 193. Lord Justice Cozens-Hardy, Master of the Rolls said as follows: "...the general proposition which I think has been established, that on an ex parte application unerrima fides is required, and unless that can be established, if there is anything like deception practised on the Court, the Court ought not to go into the merits of the case, but 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble single Judge, although suppression was heavily pressed. His Lordship did not enter a finding that there had been no concealment or no deception or no hiding of any relevant material. The Division Bench on 12-5-2003 opined that there was serious concealment and the interim order was vacated. On an SLP being admitted, the Supreme Court set aside the Division Bench s order by consent of parties on 22-5-2003. It, however, kept the point of suppression open for argument. 202. The argument has been made before us. We have no doubt that the plaintiff s suppressed the Bombay material before the Calcutta High Court deliberately with a view to obtaining a better chance of getting an ex parte ad interim order. Thereby they failed to take the Court into full confidence and misled it. It cannot be doubted that this type of suppression should not occur in future. It is not enough merely to say, the litigant should not have done it and the 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 opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill compensate the person suffering because of the passing of the order to a reasonable degree as assessed by the Court, if and when it finally turns out that the interim order was wrongfully obtained by the applicant. 207. We propose to impose upon the plaintiffs both costs for the Court below and before us as well as damages for every week of delay of telecast which the respondents have suffered because of the wrongful order of injunction obtained by the appellants. We shall make the assessment under a separate heading. The Application Being Premature :- 208. Although this topic might overlap a little with grant of injunction, and balance of the prejudice to be suffered by the parties in case of different results of the application for injunction, yet the subject is so important that it deserves a separate mention by itself. 209. We have already said at quite some length, that the scanty materials of the plaintiffs brought to light so far, do not get the 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h in the lower Court and before us. We are of the opinion that the appellants should pay the respondents costs of Rs. 10,000 per day of hearing before the first Court and Rs. 15,000 per day of hearing before us, not counting any of the days partly or wholly occupied in delivery of judgment. As regards assessment of damages for injunction wrongfully obtained, we are of the opinion that the assessment should be made for every week of delay. We have to give certain broad outlines of how we have reached the figure, which we have calculated. It is easy to assess costs, since any realistic estimate will show that the costs which we have assessed above are, if anything, pitifully small compared to what parties have actually spent everyday for a full-fledged and contested hearing, as has taken place in this case. To assess damages, the first point to assess is the investment made by the respondents for the serial so far. They say, it is more than Rs. 100 crores. 213. Mr. Sen argues that their 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence, that even Sabir, respondent No. 2, has not read the book himself. Pammi herself called Sabir a brat, and arrogant, during the interview. 216.2 Copyright Law : The interview mentions that the serial has taken the rags to riches theme of the book. It mentions some four other characters common to the serial and the book. Sabir not having read the book, thinks that Emma of the book had an illegitimate son. She had one (or two) illegitimate daughters. The Copyright Law does not protect basic plots and stock characters. If it granted such protection, four or five writers writing 15 or 20 novels with stock characters and stock plots could stop all writers of pop literature from writing anything thenceforth. It is enough to refer in this regard to R.G. Anand s case ( supra ), paragraph 46, proposition No. 1 :- "There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression 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 int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutta hopping, it would be on far keener scrutiny, before granting drastic orders without notice. 216.6 Damages and Costs : On 12-5-2003 the plaintiffs obtained continuance of the interim order upon direction of their filing an undertaking to pay damages and costs; damages to be assessed by Court if the injunction turns out to have been wrongfully obtained. As the project is a hundred crore project, we assess damages for wrongfully obtaining injunction at the rate of Rs. 1,50,000 per week from 13-5-2003 until issuance of this dictated order, as mentioned below. Costs, on the basis of a realistic estimate of a heavy hearing, are assessed by us at Rs. 10,000 per day of hearing in the Court below and Rs. 15,000 per day of hearing before us, not counting the days occupied partly or wholly in delivery of judgment. 217. This last portion of the judgment, headed summary and order, shall be typed/xeroxed out also as a dictated order passed by us, and such dictated order shall be given out in copies to the parties, for their immediate action, upon the usual undertakings. 218. The appeal of the appellants is thus dismissed with the above order as to costs and damages. The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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