REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   389          OF 2008 [Arising out of Special Leave Petition (Civil) No. 15612 of 2008]

ACADEMY OF GENERAL EDU., MANIPAL  & ANR.       … APPELLANTS

Versus

B. MALINI MALLYA    … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. ‘Yakshagana’ is a form of ballet dance.  It has its own heritage.   

Indisputably, Dr. Kota Shivarama Karanth (for short, “Dr. Karanth”),

a  Jnanapeeth  awardee,  who  was  a  Novelist,  Play  Writer,  Essayist,

Encyclopediationist,  Cultural  Anthropologist,  Artist,  Writer  of  Science,

Environmentalist.  He developed a new form of ‘Yakshagana’.  He was a

Director of the appellant – institute.  On or about 18.6.1994, he executed a

Will  in  favour  of  the  respondent.   Dr.  Karanth  expired  on  9.12.1997.

Yakshagana  Ballet  dance as  developed by Dr. Karanth was performed in

New Delhi on or about 18.9.2001.  Respondent filed a suit for declaration,

injunction and damages alleging violation of the copyright in respect of the

said dance vested in her in terms of the said Will stating that Dr. Karanth

developed a new distinctive dance, drama troop or theatrical system which

was  named  by  him  as  ‘Yaksha  Ranga’  which  in  his  own  words  mean

“creative  extension  of  traditional  Yakshagana”  and,  thus,  the  appellants

infringed  the  copyright  thereof  by  performing  the  same  at  New  Delhi

without obtaining her prior permission.  It was stated that Dr. Karanth had

composed seven verses or prasangas for staging Yaksharanga Ballet apart

from bringing  in  changes  in  the  traditional  form thereof  on  its  relevant

aspects,  namely,  Raga,  Tala,  Scenic  arrangement,  Costumes  etc.  These

prasangas are: (i) Bhishma Vijaya; (ii) Nala Damayanthi; (iii) Kanakangi or

Kanakangi Kalyana; (iv) Abhimanyu or Abhimanyu Vada; (v) Chitrangadha

or Babruvahana Kalaga; (vi) Panchavati; and (vii) Ganga Charitha.  

3. Plaintiff  –  respondent  admittedly  claimed  copyright  in  respect  of

‘literary and artistic works’ in her favour in terms of clauses 11 and 12 of

the said Will dated 18.6.1994, which read as under:

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“11. Since I left the house ‘suhasa’ I have been living in a specially built house “Manasa” of Smt. Malini  Mallya,  who  has  built  it  with  borrowed money at her cost.  She had joined my service as Copyist and later, she secured an employment in Life Insurance Corporation  of India.   Ever since 1974 till now in my old age she has been serving me with exemplary devotion and sincerity.  And in this  occasion  I  must  also  acknowledge  with gratitude that she diligently cared and nursed my wife  Leela  Karanth  during  her  prolonged  illness till  her  last  day.  And she has cared and looked after me also during my illness which at times had been quite serious, enfeebling me for long period. In  recognition  of  her  devotion  and  sincere affection towards me in 1986 I have dedicated one of my novels namely, “Antida Aparanji” to her.  I have also placed on record her invaluable services to  me in  my Memoirs,  “Hunchu Mansina  Hathu Mukhagalu”  1991 Edition.   In  my opinion,  very long enduring and a signal service she has done to me  and  to  my  literary  works  is,  in  writing  a bibliography of all my books- a highly meritorious and  scholarly  work  involving  so  much  of  pains taking  research,  that  it  has  been  acclaimed  and rated as the first of its kind in Kannada and highly appreciated by Critics  and Scholars.   Apart  from this,  she  has  collected  and  edited  all  my  stray writings  from 1924  onwards  upto  date  in  eight Sumptuous volumes which are being published by Mangalore  University.   This  work  also  has brought  her  deserving  fame  and  appreciation  of Scholars.   Such  painstaking  service  in  this direction  has  brought  to  light  several  of  my hitherto untraced, forgotten and unknown writings and  thereby  giving  them  extended  or  renewed lease  of  life.   For  all  these  services,  I  hereby declare that after my death copyrights in respect of all my literary works shall vest with Smt. Malini Mallya and she alone shall  be entitled to receive royalties of all my books and she shall be entitled to  print,  publish  and  republish  and  market  the

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same.  Whatever she may earn thereby shall be her exclusive income and property.  No one else shall have any right or claims for the same.   

12. From time to time I have distributed among my  children  all  gold  and  silver  jewels  and ornaments and other valuables, which were gifted to  me by my friends  and admirers.   And I  have distributed  all  copper  and  bronze  vessels  and utensils  among  my  children  while  leaving  my former home “Suhasa” keeping only bare essential and  necessary  things  and  articles.   Whatever movable  properties,  books,  fittings,  furniture, utensils  etc.  belonging  to  me  into  this  house ‘Manasa’  and  my Car  and  cash  money  in  hand after my death shall go to Smt. Malini Malya only. No one else shall have any claim or right over the same.   Any  outstanding  due  to  me  and  Bank Deposits  and  whatever  assets  or  properties  not mentioned above, that is, residuary after my death shall belong to Smt. Malini Mallya alone.”

4. Plaintiff- Respondent, inter alia, prayed for passing a judgment and

decree against the defendants – appellants granting the following reliefs:

“1. A  declaration  that  the  plaintiff  is  the exclusive  copyright  holder  in  respect  of Yaksharanga  ballets,  namely,  Bhishma Vijaya,  Kanakangi,  Nala  Damayanthi, Panchavati,  Gaya  Charitha,  Chitrangadha, Abhimanyu  Vadha,  and  for  consequential permanent  injunction  restraining  the Defendants,  their  agents,  employees  etc. from staging or performing any of the above said  7  ballets  or  Prasangas  or  any  parts thereof.

1,000-00

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2. Directing  the  Defendants  to  pay  to  the plaintiff  damages  of  Rs.15,000/-  towards infringement of her copyright on account of stating or performing Abhimanyu Vadha on 18-9-2001 at New Delhi.

15,000-00

3. Directing  the  Defendants  to  pay  to  the plaintiff interest on Rs.15,000/- at 15% p.a. from 18-9-2001 till now which is  

95-00

4. Directing  the  Defendants  to  pay  future interest  on  Rs.15,000/-  at  15%  p.a.  till payment of the entire amount.

5. ……………………………..

6. ……………………………….”

5. Appellants in their written statement, however, denied and disputed

any copyright of the said dance in Dr. Karanth alleging that whatever work

he  had  done  was  in  the  capacity  of  a  Director  of  the  Kendra  with  the

assistance,  finance  and  staff  provided  by  the  Organization  of  Mahatma

Gandhi  Memorial  College  Trust  in  respect  whereof  a  Committee  was

formed under him by the Board of Trustees.  It was furthermore contended

that Dr. Karanth was appointed as the President of the Executive Committee

of Yakshagana Kendra for a period of three years by the appellant and while

holding the said post only he expired.

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6. By reason of a judgment and decree dated 14.11.2003, the District

Judge, Udupi decreed the said suit declaring the plaintiff - respondent as a

person having the exclusive copyright  in respect  of seven Prasangas and

that she had acquired the same by reason of a Will as a residuary legatee and

the defendants  –  appellants  or their  employees or  agents  were restrained

from performing the said seven ballets or Prasangas or any parts thereof in

any manner as evolved distinctively by Dr. Karanth.   

7. Appellants aggrieved thereby and dissatisfied therewith preferred an

appeal before the Karnataka High Court which was marked as R.F.A. No.

271  of  2004.   By  reason  of  the  impugned  judgment  and  order  dated

5.12.2007, the said appeal has been dismissed.   

8. Appellants are, thus, before us.

9. Dr.  Rajiv  Dhavan,  learned  Senior  Counsel  appearing  on  behalf  of

appellants in his usual fairness conceded:

i. The copyright in the literary work has been assigned by reason

of the said Will in favour of the respondent in terms of clause

12 of the Will.

ii. Dr.  Karanth  has  made  substantial  changes  in  the  original

traditional form of the Yakshagana dance. Additions made in

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the form of the said dance including the Prasangas fell within

the purview of ‘originality’ in respect whereof copyright could

be claimed.   

It was, however, urged:

i. Keeping in view of the findings of the learned trial  judge, it

ought to have been held that no cause of action arose against

the appellants in this case as the Institution had performed the

said dance at New Delhi in the memory of Dr. Karanth without

charging any fees.   

ii. The form of copyright as regards dramatic work as has been

held by the High Court  stating  the same to  be a part  of  the

literary work is not correct as they connote two different things.

iii. The  form of  injunction  granted  in  favour  of  the  plaintiff  –

respondent is not in terms of the provisions of the Copyright

Act,  1957  as  the  appellant  as  an  institution  or  otherwise  is

entitled to use the same in terms of clauses (a), (i) and (l) of

sub-Section (1) of Section 52 thereof.

10. Mr. G.V. Chandrashekhar, learned counsel appearing on behalf of the

respondent, on the other hand, would support the impugned judgment.  

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11. The Copyright Act, 1957 (for short, “the Act”) was enacted to amend

and consolidate the law relating to copyright.   

Section 2 is the interpretation section.   

Section 2(c) defines ‘artistic work’ to mean (i) a painting, a sculpture,

a  drawing  (including  a  diagram,  map,  chart  or  plan),  an  engraving  or  a

photograph, whether or not any such work possesses artistic quality; (ii) a

work of architecture; and (iii) any other work of artistic craftsmanship.   

The word ‘author’ is defined in Section 2(d) to mean, (i) in relation to

a  literary or  dramatic  work,  the  author  of  the  work;  (ii)  in  relation  to  a

musical work, the composer; (iii) in relation to an artistic work other than a

photograph, the artist; (iv) in relation to a photograph, the person taking the

photograph; (v) in relation to a cinematograph film or sound recording, the

producer; and (vi) in relation to any literary, dramatic, musical or artistic

work which is computer-generated, the person who causes the work to be

created.   

The term “communication to the public” as defined in Section 2(ff)

reads as under:

“(ff) “communication  to  the  public”  means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means  of  display or  diffusion  other  than  by

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issuing copies of such work regardless of whether any member of  the pubic  actually sees,  hears  or otherwise enjoys the work so made available.

Explanation.-  For  the  purposes  of  this  clause, communication  through  satellite  or  cable  or  any other  means  of  simultaneous  communication  to more  than  one  household  or  place  of  residence including residential rooms of any hotel or hostel shall  be  deemed  to  be  communication  to  the public”

Section 2 (ffa) defines the word “composer”, in relation to a musical

work, to mean the person who composes the music regardless of whether he

records it in any form of graphical notation.  Section 2(h) defines “dramatic

work”  to  include  any  piece  of  recitation,  choreographic  work  or

entertainment  in  dumb show,  the  scenic  arrangement  or  acting,  form of

which is fixed in writing or otherwise but does not include a cinematograph

film.   

Section 2(o) defines “literary work” to include computer programmes,

tables  and  compilations  including  computer  databases.   Section  2(qq)

defines “performer” to include an actor, singer, musician, dancer, acrobat,

juggler, conjurer, snake charmer, a person delivering a lecture or any other

person who makes a performance.  

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Section  2(y)  defines  “work”  to  mean  any of  the  following  works,

namely:-  (i)  a  literary,  dramatic,  musical  or  artistic  work;  (ii)  a

cinematograph film; (iii) a sound recording.

Section  13  which  occurs  in  Chapter  III  of  the  Act  provides  that

subject to the provisions thereof and the other provisions of the said Act,

copyright shall subsists throughout India in the following classes of works,

that is to say,-

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and  

(c) sound recording.

Section 17 of the Act deals with “First owner of copyright”, in terms

whereof, subject to the provisions of the Act, the author of a work shall be

the owner of the copyright therein. Proviso (d) appended thereto states that

in the case of a Government work, Government shall, in the absence of any

agreement to the contrary, be the first owner of the copyright therein.

Sections 22, 23 and 52(1)(a), (i) and (l) of the Act, which are relevant

for our purpose read as under:

“22.  Term of  copyright  in  published  literary, dramatic, musical and artistic works.- Except as

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otherwise  hereinafter  provided,  copyright  shall subsist in any literary, dramatic, musical or artistic work (other  than a photograph) published within the life time of the author until fifty years from the beginning of the calendar year following the year in which the author dies.

Explanation- In this  section,  the  reference to the author  shall  in  the  case  of  a  work  of  joint authorship,  be  construed  as  a  reference  to  the author who dies last.  

23  -  Term  of  copyright  in  anonymous  and pseudonymous  works.-  (1)  In  the  case  of  a literary, dramatic,  musical  or  artistic work (other than  a  photograph),  which  is  published anonymously or pseudonymously, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the work is first published:

Provided  that  where  the  identity  of  the author  is  disclosed  before  the  expiry  of  the said period,  copyright  shall  subsist  until  sixty  years from the beginning of the calendar year following the year in which the author dies.

(2) In sub-section (1), references to the author shall, in the case of an anonymous work of joint authorship, be construed,--

(a) where  the  identity  of  the  authors  is disclosed, as references to that author;

(b) where  the  identity  of  more  authors than one is disclosed, as references to

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the author who dies last from amongst such authors.

(3) In sub-section (1), references to the author shall, in the case of a pseudonymous work of joint authorship, be construed,--

(a) where the names of one or more (but not  all)  of  the  authors  arc pseudonymous  and  his  or  their identity is not disclosed, as references to  the  author  whose  name  is  not  a pseudonym, or, if the names of two or more  of  the  authors  are  not pseudonyms, as references to such of those authors who dies last;

(b) where the names of one or more (but not all) of the authors arc pseudonyms and  the  identity  of  one  or  more  of them is disclosed, as references to the author who dies last from amongst the authors  whose  names  arc  not pseudonyms  and  the  authors  whose names  are  pseudonyms  and  are disclosed; and

(c) where the names of all the authors arc pseudonyms and the identity of one of them is disclosed, as references to the author whose identity is disclosed or if the identity of two or more of such authors is disclosed, as references to such of those authors who dies last.

Explanation.—For  the  purposes  of  this section, the identity of an author shall be deemed to have been disclosed, if either the identity of the

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author is disclosed publicly by both the author and the  publisher  or  is  otherwise  established  to  the satisfaction of the Copyright Board by that author.

52.  Certain  acts  not  to  be  infringement  of copyright.-  (1)  The  following  acts  shall  not constitute an infringement of copyright, namely:-

(a) a  fair  dealing  with  a  literary, dramatic, musical or artistic work not being a computer programme for the purpose of— (i) Private use including research; (ii) criticism  or  review,  whether  of  that work or of any other work;

xxx xxx xxx

(i) the performance, in the course of the activities of an educational institution, of a literary,  dramatic  or  musical  work  by  the staff  and student  of the institution,  or of a cinematograph film or a sound recording, if the  audience  is  limited  to  such  staff  and students,  the  parents  and  guardians  of  the students  and  persons  directly  connected with  the activities  of  the  institution or  the communication  to  such  an  audience  of  a cinematograph film or sound recording.

xxx xxx xxx

(l) the  performance  of  a  literary, dramatic  or  musical  work  by  an  amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution.”

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12. Before adverting to the submissions made by the learned counsel for

the parties, we may notice the issues framed in the suit, which are:

“i. Does  plaintiff  prove  that  late  Dr. Shivaramaji  Karanth  had  acquired copyright  in  respect  of  seven Yakshagana  Prasangas  and  also  in respect  of  Yakshagana  dramatic  or theatrical  form i.e.,  Bhishma Vijaya, Nala  Damayanthi,  Kanakaangti  or Kanakangi  Kalyana,  Abhimanyu  or Abhimanyu  Vadha,  Chitrangadha  or Babruvahana  Kalaga,  Panchavati Chritha followed in the plaint?

ii. Has  the  plaintiff  became  entitled  to the  said  right  under  the  Registered Will dated 18.06.1994?

iii. Does the plaintiff prove that her right under the said Will was infringed by the defendants?”

13. Indisputably, in view of the submissions made at the bar, respondent

had acquired copyright in respect of seven Yakshagana Prasangas as also in

respect of Yakshagana dramatic or theatrical form as a residuary legatee in

terms of clause 12 of the Will dated 18.6.1994.

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However, we may notice that whereas the trial court has proceeded on

the basis that clause 12 of the Will shall apply in the instant case, the High

Court opined that clause 11 thereof is attracted, stating:

“…..No doubt, by reading para-12 of the ‘Will’ in  isolation,  one  can  certainly  arrive  at  the conclusion that the bequest made in favour of the plaintiff  is  in  the  nature  of  residuary  bequest. But, that is not all, in the ‘Will’-Ex. P-1.  I have already  referred  to  para  No.  11  of  the  ‘Will’ while dealing with the topic dramatic works vis- à-vis literary work and therefore if the ‘Will’ is read in its entirety and if we take into account, the benefits that flow from the bequest made by Dr. Karanth in favour of the plaintiff, it is not as if  the  plaintiff  received  the  bequest  only  in respect of the things which form the residuary as mentioned  in  para-12  of  the  ‘Will’  but  the plaintiff also was given the copyrights in respect of  literary  works  and  all  books  as  well  as  the right to print, republished and mark the literary works as well as the books.”

Referring to the new Encyclopaedia Britannica and Halsbury’s Laws

of England, that a literary work with dramatic elements in it would also be

literary work, the High Court observed:

“Dramatic  works  also  could  contain  in  its, passages of  great  literary taste,  as in the case of great plays of William Shakespear. Therefore, the main classification as literary work and dramatic work cannot  be construed to  mean that  dramatic

15

work has nothing to do with literary work.  The only difference I see in them is that the dramatic work  (Plays)  forms  the  text  upon  which  the performance of the plays rests whereas a ‘literary work’  enables  one  to  read  the  printed  words. Neither  of  the  two  can  be produced without  the imaginative skill of the author.”

It was furthermore held:

“I am of the considered opinion that all the above changes brought about by Dr. Karanth in respect of  Yakshagana  Ballet  leads  to  the inference that the imaginative faculties of Dr. Karanth permeated the entire Yakshagana Prasangas and thus a new look  was  given  to  the  Yakshagana  Ballets.   I, therefore,  hold  that  the  bequest  of  copyright  in literary works and books in favour of the plaintiff by  Dr.  Karanth,  will  have  to  be  treated  as  the bequest covering the dramatic works also since I have also drawn the conclusion that the dramatic works  is  also  a  form  of  literature.   Therefore, necessity  of  mentioning  copyright  separately  in respect  of  dramatic  works  does  not  arise.   The plaintiff, therefore, is entitled to copyright even in respect  of  the  dramatic  works  namely the  seven prasangas, by virtue of bequest made in her favour in respect of copyrights and books.”

14. Broadly speaking, a dramatic work may also come within the purview

of literary work being a part of dramatic literature.  The new Encyclopaedia

Britannica (Vol-IV) 15th Edition, provides the following information about

“Dramatic Literature.  

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“Dramatic Literature: the texts of plays that can be read, as distinct from being seen and heard in performance.”

We  must,  however,  notice  that  the  provisions  the  Act  make  a

distinction  between the ‘literary work’ and ‘dramatic  work’.   Keeping in

view the statutory provisions,  there cannot be any doubt  whatsoever that

copyright in respect of performance of ‘dance’ would not come within the

purview of  the literary work  but  would  come within  the  purview of  the

definition of ‘dramatic work’. We, however, do not mean to suggest that any

act of literary work will be outside the purview of the Will dated 18.6.1994.

Our  exercise  in  this  behalf  was  only  for  the  purpose  of  clarifying  the

provisions of the Act with reference to the findings arrived at by the High

Court.   

15. For  the  aforementioned  reasons,  we  agree  with  Dr.  Dhavan  that

paragraph 12 of the Will, namely, residuary clause shall apply in the instant

case apart from the areas which are otherwise covered by paragraph 11 of

the Will.  The residuary clause will apply because it is well settled that no

part of the stay lies in limbo.  It was also not a case where respondent in any

manner whatsoever waived her right.  

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16. The learned trial judge on issue No. 4 opined that plaintiff had not

been able to prove actual loss or damage particularly having regard to the

fact that Dr. Karanth had associated himself with the appellants for a long

time.  The learned trial judge recognized the equitable interest vested in the

plaintiff – respondent.  A declaratory decree, therefore, was passed.  

17. We may notice at this stage that the form of injunction granted both

by  the  learned  trial  judge  as  also  by  the  High  Court  in  favour  of  the

plaintiff–respondent.  The operative part of the judgment of the trial court

reads as under:

“Defendants  or  their  employees  or  agents  are restrained  from  performing  the  above  said  7 ballets  or  Prasangas  or  in  parts  thereof  in  any manner as evolved distinctively by Dr. Karanth by way of permanent injunction.”

The High Court, however, directed:

“(iii) As far as the restraint  order passed by the Trial  Court  by granting  permanent  injunction  to the plaintiff is concerned, the same is modified by ordering that if the appellants desire to stage any of the seven Yakshagana prasangas in the manner and  form  as  conceived  in  all  respects  viz., costumes,  choreography  and  direction  by  Dr. Karanth,  the  appellants  can  do  so  only  in accordance with the provisions of the Copyrights Act, 1957 in view of copyright in seven prasangas vesting with the plaintiff.”

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18. Decree for injunction is an equitable relief. The courts while passing

a decree for permanent injunction would avoid multiplicity of proceedings.

The court while passing such a decree, is obligated to consider the statutory

provisions governing the same.  For the said purpose, it must be noticed as

to  what  is  a  copyright  and in  respect  of  the matters  the same cannot  be

claimed  or  otherwise  the  same  is  lodged  by  conditions  and  subject  to

statutory limitation.     

19. In R.G. Anand vs. M/s Delux Films & ors. [(1978) 4 SCC 118], this

Court held:

“46. Thus,  on  a  careful  consideration  and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:

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.

2. Where the same idea is being developed in a different  manner,  it  is  manifest  that  the source  being  common,  similarities  are bound  to  occur.  In  such  a  case  the  courts should  determine  whether  or  not  the similarities  are  on  fundamental  or substantial  aspects  of  the  mode  of expression adopted in the copyrighted work. If  the  defendant’s  work  is  nothing  but  a literal  imitation  of  the  copyrighted  work with some variations here and there it would amount  to  violation  of  the  copyright.  In other  words,  in  order  to  be  actionable  the

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copy must be a substantial and material one which at  once leads  to the conclusion that the defendant is guilty of an act of piracy.

3. One  of  the  surest  and  the  safest  test  to determine whether or not  there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and  gets  an  unmistakable  impression  that the subsequent work appears to be a copy of the original.

4. Where  the  theme  is  the  same  but  is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.

5. Where however  apart  from the  similarities appearing  in  the  two works  there  are  also material  and  broad  dissimilarities  which negative  the intention  to  copy the original and the coincidences  appearing in  the  two works are clearly incidental no infringement of the copyright comes into existence.

6. As a violation of  copyright  amounts  to  an act of piracy it must be proved by clear and cogent  evidence after  applying  the  various tests  laid  down  by  the  case-law discussed above.

7. Where  however  the  question  is  of  the violation of the copyright of stage play by a film producer or  a director  the task of  the plaintiff  becomes  more  difficult  to  prove piracy. It is manifest that unlike a stage play a  film  has  a  much  broader  prospective, wider field and a bigger background where the defendants can by introducing a variety of incidents  give a colour and complexion different  from  the  manner  in  which  the copyrighted  work  has  expressed  the  idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by  and  large  a  copy  of  the  original  play, violation of the copyright may be said to be proved.”

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Yet again in  Eastern Book Company & ors.  vs.  D.B. Modak & Anr.

[(2008) 1 SCC 1], this Court held:

“57. The Copyright Act is not concerned with the original  idea but  with the expression of thought. Copyright  has  nothing  to  do  with  originality  or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment  of  capital,  maybe  it  is  a  derivative work  which  gives  a  flavour  of  creativity.  The copyright work which comes into being should be original  in  the  sense  that  by virtue  of  selection, coordination  or  arrangement  of  pre-existing  data contained in the work, a work somewhat different in character is produced by the author. On the face of the provisions of the Copyright Act, 1957, we think that the principle laid down by the Canadian Court  would  be  applicable  in  copyright  of  the judgments  of  the  Apex Court.  We make it  clear that the decision of ours would be confined to the judgments  of  the  courts  which  are  in  the  public domain as by virtue of Section 52 of the Act there is  no  copyright  in  the  original  text  of  the judgments.  To claim copyright  in  a  compilation, the author must produce the material with exercise of  his  skill  and  judgment  which  may  not  be creativity  in  the  sense  that  it  is  novel  or  non- obvious, but at the same time it is not a product of merely  labour  and  capital.  The  derivative  work produced  by  the  author  must  have  some distinguishable features and flavour to raw text of the judgments  delivered by the court.  The trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author.”

20. The  High  Court,  in  our  opinion,  should  have  clarified  that  the

appellants can also take the statutory benefit of the provisions contained in

clauses (a), (i) and (l) of sub-section (1) of Section 52 of the Act.   

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Section  52  of  the  Act  provides  for  certain  acts  which  would  not

constitute an infringement of copyright.  When a fair dealing is made, inter

alia, of a literary or dramatic work for the purpose of private use including

research and criticism or review, whether of that work or of any other work,

the right in terms of the provisions of the said Act cannot be claimed.  Thus,

if some performance or dance is carried out within the purview of the said

clause, the order of injunction shall not be applicable.  Similarly, appellant

being  an  educational  institution,  if  the  dance  is  performed  within  the

meaning of provisions of clause (i) of sub-section (1) of Section 52 of the

Act strictly, the order of injunction shall not apply thereto also.  Yet again,

if  such  performance  is  conducted  before  a  non-paying  audience  by  the

appellant, which is an institution if it comes within the purview of amateur

club or society, the same would not constitute any violation of the said order

of injunction.

21. With the aforementioned modification in the order of injunction, this

appeal is dismissed.  However, in the facts and circumstances of the case,

there shall be no order as to costs.  

.……………….…..………….J. [S.B. Sinha]

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..………………..……………J. [Lokeshwar  Singh  Panta]

……………….…..………….J. [B. Sudershan Reddy]

New Delhi; January 23, 2009

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