Syndicate Of Press O... v. B.D. Bhandari

Mukul Mudgal, J.:— This is an application under order xxxix rules 1 & 2 of the code of civil procedure, 1908 (in short the ‘CPC’) in a suit filed by plaintiff No. 1 the Syndicate of the Press of the University of Cambridge which trades in the name of Cambridge University Press. The Edinburgh Building, United Kingdom (hereinafter referred to as the ‘Syndicate’) and its Associate in India which has published the low price edition of the book in question, M/s Foundation Books Private Ltd., i.e, the plaintiff No. 2 (hereinafter referred to as the ‘Company’). The Syndicate has averred inter alia that it is a reputed publisher with an international standing and holds all rights in respect of the publication “Advance Grammar in Use by Martin HEWINGS” (hereinafter referred to as the ‘subject work’).

2. The plaintiffs have averred in the plaint as follows:—

(a) that the aforesaid subject work has been prescribed and used in several institutions and universities all over the world and is inter alia prescribed by Guru Nanak Dev University, Amritsar (hereinafter referred to as the ‘GNDU’) in the State of Punjab for the students of Bachelor of Arts Part I, II and III commencing for the year 2004–05.

(b) that while the international price of the book is in the region of around $29, the Company underlicence from the Syndicate had produced a low price edition at the price of Rs. 95 approximately US $2.

(c) that the cause of action for approaching this Court arose as the defendant had published three books namely; MBD English Guide for BA/B.Sc B.Com Part-I (GNDU) [hereinafter referred to as the ‘first book’], MBD English Guide for BA./B.Sc/B.Com Part-II (GNDU) [hereinafter referred to as ‘the second book’] and “MBD English Guide for B.A/B.Sc/B.Com Part-Ill (GNDU)” [hereinafter referred to as the third bookl which contained a brazen copy of a reproduction of the subject work and incorporated verbatim the literary work of the subject work including the complete set of exercises and the Answer Key to the said exercises from Unit 1 to 120.

(d) that the first book contains unauthorized reproduction of the literary text from the exercises and Answer Keys given in Units 1 to 42 of the plaintiffs' subject work and the second one contains reproduction of the literary text from the exercises and answer keys given in Units 43 to 81 of the plaintiffs subject work and third one contains reproduction of the literary text from Units 82 to 120 of the plaintiffs subject work.

3. As an example, the following extracts were cited to demonstrate and substantiate the plea of the plaintiffs:—

“EXTRACTS FROM THE PLAINTIFFS' TITLE “ADVANCED ENGLISH GRAMMAR” BY MARTIN HEWINGS. PUBLISHED BY-CAMBRIDGE UNIVERSITY PRESS EXTRACTS FROM THE DEFENDANT'S TITLE ‘ENGLISH GUIDE’ PUBLISHED BY MALHOTRA BOOK DEPOT (MBD). Unit-1, Exercise 1.1, Page 3 Unit-1, Exercise 1.1, page 13 Suggest a verb to complete each sentence. Use the present simple or the present continuous. Use to add any words outside the space Suggest a verb to complete each sentence. Use the present simple or the present continuous. Use to add any words outside the space

“EXTRACTS FROM THE PLAINTIFFS' TITLE ‘ADVANCED ENGLISH GRAMMAR’ BY MARTIN HEWINGS. PUBLISHED BY-CAMBRIDGE UNIVERSITY PRESS EXTRACTS FROM THE DEFENDANT'S TITLE ‘ENGLISH GUIDE’ PUBLISHED BY MALHOTRA BOOK DEPOT (MBD).

1. Even though Sarah says she's feeling better, I think she is still losing weight. 1. Even though Sarah says she's feeling better, I think she is still losing weight. 2. Frank,…stamps in his spare time. It's his hobby. 2. Frank, stamps in his spare time. It's his hobby. 3. The airline currently……….half price ticket to Japan, but for one month only. 3. The airline currently……………half price ticket to Japan, but for one month only. windows before she goes to bed. windows before she goes to bed. 5. Because of the present threat of war, the best' qualified people…the country. 5. Because of the present threat of war, the best qualified people……………the country. 6. Both ancient and recent records show 6. Both ancient and recent records show that farmers long hours. 7. She has an important project to finish by next week, so she in the evening at present. 7. She has an important project to finish by next week, so she in the evening at present. 8. Philip is an excellent linguist. 8. Philip is an excellent linguist. 9. How are you getting on with the book?' At the moment I chapter four'. 9. How are you getting on with the book?' At the moment I chapter four'. 10. Here we are in Switzerland again. We in a very comfortable small hotel 10. Here we are in Switzerland again. We in a very comfortable small hotel. Key to exercises-Unit 1, 1.1, page 289 Answers, Exercise-1.1-page 14

“EXTRACTS FROM THE PLAINTIFFS' TITLE ‘ADVANCED ENGLISH GRAMMAR’ BY MARTIN HEWLNGS. PUBLISHED BY-CAMBRIDGE UNIVERSITY PRESS EXTRACTS FROM THE DEFENDANT'S TITLE ‘ENGLISH GUIDE’ PUBLISHED BY MALHOTRA BOOK DEPOT (MBD). Some possible verbs are given 2. collects 2. Collects 3. is (or are) currently offering/selling 3. is currently selling 4. locks/shuts 4. shuts

5. are leaving/deserting 5. are leaving 6. work 6. work 7. is working 7. is working 8. speaks 8. speaks 9. I'm reading/writing 9. reading 10. are staying 10. are staying’

(e) That the defendant had also copied the scheme of the exercise, answers, and placement of topics. Thus, the violation of the plaintiffs' copyright in the subject work as contemplated by Section 51 of the Copyright Act has taken place which disregards the skill labour and ingenuity of the original author Hewings in creating, designing and making a world class user friendly work for advanced English learning.

(f) that as compared to the price of Rs. 95 prescribed by the Company for the entire subject work for the 3 year course, the defendant's infringing books are sold at the rate of Rs. 210-220 for each part thus aggregating Rs. 630-660 for three years course of the Bachelor of Arts Course.

4. An ex-parte order of ad-interim injunction was passed in favour of the plaintiff on 10th November, 2004 wherein the defendants were restrained from utilizing and incorporating the verbatim text taken from the plaintiffs' subject matter titled ‘Advanced Grammar by Martin Hewings’ in any of their publications. The defendant appeared after notice and contended inter alia that printing and publishing of a guide and reproduction of a matter essentially required from the point of view of examination from the prescribed book by the University in the syllabi does not amount to infringement of copyright.

5. It was averred by the defendant as follows:

(a) that it publishes approved books by various universities including GNDU as well as guide books and has previously published guide books for the students appearing in the B.A and other examinations of the GNDU, Amritsar.

(b) that the guide covers the complete English Paper and gives detailed instructions alongwith questions and answers and completely elucidates and clarifies the English Paper in such a manner as to make the students understand the English subject as per the syllabus prescribed to the students appearing for graduation in the GNDU.

(c) that more students hail from rural areas and are conversant with Punjabi and Hindi and this guide helps them to understand English in a simple way.

(d) that the plaintiffs book is in one volume whereas the defendant's book is in three volumes, dealing with the entire syllabus.

(e) that the “Advanced English Grammar” carries a question worth of ten marks and rest of the 90% of the syllabus is covered by the other prescribed books as per the syllabus issued by the GNDU.

(f) that the guide books are distinguishable from the plaintiff No. 1's book as they explain and elucidate the English Grammar in detail.

(g) that on the legal position the plaintiffs' case falls within the exception of Section 52 of the Copyright Act which reads as follows:—

“52(1)(h): The reproduction of a literary, dramatic, musical or artistic work—

(i) by a teacher or a pupil in the course of instruction:—

(ii) as part of the questions to be answered in an examination; or

(iii) in answers, to such questions;”

(h) that the publishing of the guide by the defendant for the benefit of the students falls under the public domain and the guide has been duly authorised by the experienced teachers in the field of English and is in the nature of research work/review.

(i) that the plaintiffs' entire book “ADVANCE GRAMMER IN USE BY MARTIN HASTINGS” consists of a total of 1,71,000 words whereas the defendants work, i.e, guide book consists of 36,000 words.

(j) that the defendants have acknowledged the authorship of the textbook from which defendant's work has been fairly taken which is in strict compliance with Section 52 of the Copyright Act, 1957.

(k) that the defendant's guides based on subject work of the plaintiffs, containing the alleged infringing work of the plaintiff are in market since July 2004. The plaintiffs have had the knowledge of this fact since the beginning and have filed the present suit only on 9th November, 2004. Thus, the plaintiffs have waived their copyright, if any.

6. Reliance has been placed on the following Judgments by the defendant in support of their case:—

(i) In Ramesh Chaudhary v. Ali Mohd., AIR 1965 J & K 101, it was held as follows—

“Once the original authors of the books allowed the university to publish it in their syllabus and the university published it as a part of the syllabus prescribed for its students, the matter went into the hands of the general public and no copyright in the strict sense of the term remained with the original authors. Having been published by the university, it became more or less public property. Any member of the public could publish a review or a criticism, or a guide to this book………”

“The notes are in the nature of a review of the original book meant as a sort of a guide to the students in order to appreciate the contents of the books prescribed by the university. The acts of preparing or publishing notes on books prescribed by the university is no colourable imitation of the original and these acts do not amount to infringement copyright as contemplated by Section 51. Such a case falls within exceptions to section 52(a)(ii) under the guise of a copyright the authors cannot ask the Court to close all the doors of research and scholarship and all frontiers of human knowledge.”

(ii) In Mohammad Jalil v. Ram Dayal, AIR 1916 All 216 it was held as follows:—

“We think that when the plaintiff as a member of the Board of Studies laid the results of his skill and experience before the board he placed the results of his labours unreservedly at the disposal of the university authorities. But when the university authorities published their syllabus they surrendered any copyright which may or may not have existed owing to the skill, experience and labour on the preparation of these lists of passages from standard authors, unreservedly into the hands of the general public they were of the opinion, that the interests of the public, and of the general body of the students would best be served by allowing free competition in this matter.”

(iii) In V. Ramaiah v. K. Lakshmaiah, 1989 PTC 137, it was held as follows:—/

“The mere use of language couched in the text book does not necessarily mean that the respondent pirated the words particularly when the guide was written to help the students to understand the meaning, significance and the answers that have to be written for the questions. The respondents having acknowledged the authorship of the text book, the respondents conduct does not come within the meaning of infringement………”

(iv) In EM. Forster v. A.N Parsuram, AIR 1964 Madras 331 (DB), it was held as follows:—

“That taking the two works together and considering them as a whole, there was no infringement of copyright. There was no copyright in the title. The purchasers, whether of the original work or of the guide, were most unlikely to be illiterate, or unacquainted with English. It would be perfectly clear to them, from the words enclosed in brackets as a sub-title, that they were acquiring, not the original work, but “guide for university students.”

(v) In Mc Milan & Co. Ltd. v. K & J Cooper, AIR 1924 PC 75 it was held as follows:

“To constitute a true and equitable abridgment, the entire work must be preserved in its precise import and exact meaning and then the act of abridgment is an exertion of the individuality employed in moulding and transfusing a large work into a small compass, thus rendering it less expensive and more convenient both to the time and use of the reader. Independent labour must be apparent, and the reduction of the size and work by copying some of its parts and omitting others confers no title to authorship, and the result will not be an abridgment entitled to protection. To abridge in the legal sense of the word is to preserve the substance, the essence of the work in language suited to such a purpose, language substantially different from that of the original. To make such an abridgment requires the exercise of mind, labour, skill and Judgment brought into play, and the result is not merely copying.”

(a) In Ramesh Chaudhary case (supra) it has been laid down that no copyright in the strict sense of the term remains with the original authors of the book once they permit the university to publish it in their syllabus. After being published by the university it becomes a part of the public domain and any person can publish a review, criticism or a guide to the book. However, a review, a criticism or a guide acknowledges the original authors of the work that they deal with. A review may summarize the original work and present it for perusal to a third person to that such person may get an idea about the work. A criticism may discuss the merits and demerits of the work. A guide may seek to enable students of the original work to better understand it from the point of view of examinations. Consequently, it cannot be said that the books published by M/s Malhotra Book Depot the Defendants are in any way a review, criticism or a guide of the original work. Verbatim lifting of the text to the extent of copying the complete set of exercise and the key to such exercises can in no manner be termed as a review, criticism or a guide to the original work. Furthermore, this Court has not granted an injunction against the publication of the entire book of the defendant but has only restrained the incorporation and utilization of the verbatim text taken from the plaintiff's publications. Therefore, this Judgment of J & K High Court in Ramesh Chaudhary has no bearing on the matter in dispute.

(b) Insofar as the ratio of Mohd. Jalil's case (supra) is concerned, it is not applicable as this case does not relate to a violation of the syllabus prescribed by the university but in fact relates to an alleged lifting of text from a book prescribed in the syllabus by the university.

(c) Insofar as reliance on V. Ramaiah's raise (supra) is concerned, merely because the authorship of the parent work is acknowledged that in itself does not ipso facto give a right to appropriate the copyright of the original author. Accordingly in my view the above judgment even if taken to be an authority for the proposition that acknowledgment of the authorship gives more leeway to the subsequent author, being a judgment of the Andra Pradesh High Court is at best of persuasive value. I am with respect unable to concur with the position of law said to be laid down in the said judgment.

(d) In-EM Forster's case (supra) it was laid down that the guide book was a kind of commentary based on the original work to enable students to give effective answers to questions set in examinations. The guide book remained the original creation of the respondent even if it were regarded as part abridgment and part commentary upon the original work. But the book published by the defendants cannot be termed as a commentary on the original because a commentary is actually an expression of opinion or a set of explanatory notes on a text. Neither does the defendant's work express any opinion about the original text nor does it provide any notes with reference to the original. In fact, it merely reproduces material from the original in a mechanical manner. Even if it is assumed that the defendant's work could have enabled students to give effective answers in examinations, such a situation cannot permit purloining verbatim texts of the original work. An author cannot lift and copy entire portions of the original text and then call it a commentary. Therefore, the judgment in E.M Foresters case has no bearing in this matter.

(e) In McMillan & Co. Ltd. v. K & J Cooper, AIR 1924 PC 75 it was held that to constitute a true and equitable abridgment, the entire work must be preserved in its precise import and exact meaning.

7. While the universal nature of knowledge and its dissemination freely is a laudatory concept but it must not transgress rights of an author guaranteed by the Copyright Act. Those who possess the ability to create also possess the right to assert that their creation be recognized and identified with them. They have the right to proclaim, that no other person infringes upon their claim of originality and the right to limit the use and prevent the abuse of their creation.

8. According to Section 52(1)(h) of the Copyright Act, 1957, the reproduction of a literary, dramatic, musical or artistic work as part of the questions be answered in an examination or in answers to such questions shall not constitute infringement of copyright. Section 52(1)(h) reads as follows:—

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

(h) The reproduction of a literary, dramatic, musical or artistic work-(i) by a teacher or a pupil in the course of instruction; or

(ii) as part of the questions to be answered in an examination; or (iii) in answers, to such questions.”

9. The literary work in question here is the original work of the plaintiff. It is note worthy that this exception would be applicable only when material from the original is reproduced as a part of the questions to be answered in an examination or in answers to such questions. This exception would not be applicable because the reproduction is not made as a part of the questions and answers; rather the complete set of questions and answer keys is copied from the original work.

10. It has also been contended by the defendant that the exceptions given in section 52(a)(i) and section 52(a)(ii) are also attracted. As already mentioned in para) above, the defendant's book cannot be termed as a criticism or a review. Therefore, section 52(a)(ii) is not applicable. The ex-parte interim injunction dated 10th November, 2004 is accordingly confirmed.

CS(OS) No. 1274/04

11. List the rnatter before the appropriate Court in accordance with the roster on 13th July, 2005, subject to the orders of the Hon'ble the Chief Justice and thereafter Judge-in-Charge (Original Side).