JUDGMENT
1. The staging of a drama ‘Ningal Are Communistakki’ (hereinafter referred to as ‘the counter drama’) written by appellant No. 1, Mr. Civic Chandran has been restrained by an interlocutory order of injunction issued by the learned Additional District Judge-I, Mavelikkara in O.S 1/1995 pending before him. The ground on which the order has been issued is that the staging of the said drama would prima facie constitute infringement of the copy right of the famous drama “Ningal Enne Communistakki” (hereinafter referred to as ‘drama’) written by late Mr. Thoppil Bhasi, one of the well known playwrights, whose legal representatives are the plaintiffs in the suit and the respondents in the appeal. Aggrieved by the order, defendants, 1, 4 and 5 have filed this appeal. The question to be considered is whether the order under challenge is legally sustainable in the facts and circumstances of the case and in the light of the legal principles required to be followed while granting interlocutory order of injunction in cases like the one on hand.
2. Briefly stated, the relevant facts are thus: ‘Ningal Enne Communistakki’ is a well known drama written in 1952 by late Thoppil Bhasi, one of the famous malayalam playwright who has received some prestigious awards for his literary skill as a playwright. According to plaintiffs, the said drama dealt with some of the buring social and political problems of those days specially espoused by the then Communist Party of India before its split. The drama had considerably aided the undivided Communist Party of India to come to power in Kerala in 1957 Assembly Elections. The realistic theme and songs of the said drama attracted and influenced large audience enormously. Some of the characters of the drama like ‘Mala’ and ‘Karumpan’ had become immortal. The drama has already been played in more than 10,000 stages and was widely appreciated throughout the State and outside and is still capable of attracting large audience. Itwas be ingstaged by the 6th defendant K.P.A.C (Kerala People's Art Club), a famous Arts Club on the basis of the permission originally given by Thoppil Bhasi and subsequently by the respondents. All the rights in publishing and staging of the drama were reserved by Thoppil Bhasi and after his death, stand vested with the plaintiffs. According to plaintiffs, the 1st defendant has ‘fabricated’ another drama ‘Ningal Are Communistakki’, styling it as a counter drama to the drama of Thoppil Bhasi and had published the same in 1995 in the annual issue of ‘India Today’ (Malayalam) which is owned by the 2nd defendant, a private company whose Executive Director, Printer and Publisher is the 3rd defendant. The 1st defendant had copied substantial portions of the drama with some comments here and there in his counter drama. The characters and dialogues in the drama are also reproduced as such in the counter drama. Such copying and reproduction are made without any bona fides and with the intention of taking undue advantage of the creative talents and labour of Thoppil Bhasi which is illegal and violative of the provisions of the Copy Right Act Further it was alleged that through the so-called counter drama, an attempt has been made by the 1st defendant to denegrade and defame Mr. Thoppil Bhasi. Defendants 4 and 5, the President and Secretary of a drama troop by name ‘Rangabhasha’ are making large scale preparations to stage the counter drama at various centres. In the circumstances, the plaintiffs have prayed for a perpetual injunction against defendants 1 to 3 restraining them from publishing the counter drama any more and a perpetual injunction against defendants 1, 4 and 5 restraining them from staging the counter drama. The plaintiffs have also prayed for damages from defendants 1 to 3 for publishing the counter drama in the literary annual edition of ‘India Today’ which is owned by the 2nd defendant, a Private Limited Company whose Executive Director, Printer and Publisher is the 3rd defendant.
3. Appellant No. 1 as 1st defendant in the suit (1st counter petitioner in I.A 394/95) has filed a detailed counter affidavit opposing the reliefs prayed for in the application. While admitting the fact of writing and publishing the counter drama it was pointed out that though the counter drama was published in the annual issue of ‘India Today’ in January, 1995, the plaintiffs have fifed the suit only in the month of August, 1995 just prior to the date fixed for themaiden staging of the counter drama. There was no complaint about any violation of the copy right till the filing of the suit. As such, it was contended that there is no bona fides in the claim made in the suit and the application. It was also claimed that the counter drama is a new literary innovation ‘where a play is counter-posed by using the very same theme and characters’. Late Thoppil Bhasi himself has adopted this method of writing dramas in his later play ‘Innu Innale Nale’. That play is a criticism against Bhasi himself and he refused to confront his own characters in ‘Ningal Enne Communistakki’. The counter drama has been written mainly for the purpose of criticism or critical analysis of the original drama and its characters for bringing out before the public how it failed to achieve the ultimate purpose intended to be achieved by Bhasi by writing it. Copying of certain portions of the drama in the counter drama can only be treated as ‘fair dealing’ since the purpose of reproduction was criticism of the drama. As such, it will amount to ‘fair deal ing’ and will not amount to infringement of copy right. The counter drama is an original creative work of the 1st defendant on which he has expended considerable time, energy, labour and literary skill. The passages copied from the drama was extracted only for the purpose of reciting or reading thesame from the stage as a dramatic device and such uses cannot also be treated as an infringement of copy right It was also pointed out that appellants have already spent considerable amount of time, effort and money in training the actors by conducting the rehearsal camps and making costumes and stage settings. As a result of the public debate and advertisement carried out by the appellants throughout the State, the public was eager to view the drama. If the counter drama is staged, it will have a great impact on the political developments in the State just as the drama was having when it was staged originally. If the staging of the counter drama is delayed, the time, effort and money spent already would go waste since the theme of the counter drama is closely related to contemporary political situation, the relevance of it itself will be lost considerable, if not fully. If the injunction is to continue, it will cause irreparable injury to the appellants-counter petitioners. On the other hand, even if the counter drama is permitted to be staged, nos eriousor irreparable injury orprejudice will be caused to the plaintiffs. Even if loss or injury is caused to the plaintiffs as a result of the staging of the play, the same can be compensated by awarding damages if the court ultimately finds that there is any infringement of the copy right claimed by the plaintiffs in respect of the drama. The claim was resisted on the above basis.
4. After referring to the relevant provisions of the Copy Right Act (hereinafter referred to as ‘the Act’) namely Section 14, 51 and 52 and certain judicial decisions on the point, the learned Judge considered the question whether the 1st defendant had copied or reproduced substantial portion of the drama in the counter drama and whether such copying can be treated as ‘fair dealing’. On the 1st question, the learned Judge found that the 1st defendant had extracted substantial portion of the drama. After finding so, on the question of defence plea of ‘fair dealing’, the only discussion paragraph 13 of the order is to this effect:
“Mr. Civic Chandran, the 1st defendant—counter petitioner may have some particular ideas, political or social. He has every right to express and propagate those ideas. Writing, publishing or playing of drama is an effective media for expressing or propagating such ideas. In doing so, he may criticise the views expressed by others. But he must seek to write, publish or play drama in such a way as not to infringe the copyright of the work of others. If he wanted to criticise the ideas expressed by Thoppil Bhasi in his drama, Mr. Civic Chandran could have used his own characters, dialogues and manner of presentation in the counter-drama. Even if he had extracted portions of the drama for the purpose of such criticism it would not have infringed the copy right provided that he could show that is only ‘fair dealing’. Copying down or extracting substantial portions of the drama, and using the same characters and dialogues of the drama with some comments here and there through two or three characters in the counter-drama cannotbe treated as ‘fair dealing’ for the pupose of criticism. But that is what exactly is done by Mr. Civic Chandran. In such a case he cannot claim portection U/s. 52 of the Copy Right Act.”
5. Both sides have reiterated before me their respective contentions raised before the court below while arguing the appeal. Further, Shri A.X Varghese, the learned counsel for the appellants has submitted that while granting temporary injunction, the learned Judge has not even adverted to the important aspects of irreparable injury and the balance of convenience and as such the order is unsustainable in law. It was also pointed out that there is a fair chance of the defence, plea of ‘fair dealing’ being accepted and as such no injunction should have been ordered taking note of the irreparable loss and injury likely to be caused to the appellants by the grant of temporary injunction. On the other hand, the learned counsel for the respondents Shri Achutha Kurup has submitted that being an appeal against an interim order passed in a pending suit unless it is found that the order is totally illegal or perverse, this court while exercising the appellate jurisdiction will not normally disturb the discretion exercised by the lower court while passing the impugned order restraining the staging of the counterdrama. The balance of convenience is in keeping the status quo which has continued from 22-8-1995 till the disposal of the suit by the trial court As such, there may be a direction to the trial court to dispose of the suit as early as possible keeping alive the order of injunction till the date of disposal of the suit, was the submission of the learned counsel for the respondent.
6. As already indicated, this is a case where the plaintiffs have alleged infringement of their copy right in the drama by copying or adopting substantial portions of the drama as part of the counter drama. The submission was that it amounted to literary piracy or plagearism. The fact that portions of the drama have been copied or extracted in the counter drama is not in serious dispute. There is also no case that such copying was done with the consent of the owners of the copyright. But, it is relevant to note that the drama has not been reproduced or copied in its entirety or even substantially in the counter drama. There is also no specific case that the purpose of copying is to imitate or to produce a drama similar to that of the drama with inconsequential changes here and there to mask the copying, for the purpose of conveying the same idea for a rival purpose. As against the alleged infringement of the copyright, the main defence put forward is one of ‘fair dealing’ as contemplated under Section 52(1)(a)(ii) of the Copy Right Act. The specific case put forward in substantiation of the defence set up is that copying or extracting of portions of the drama has been done only as part of the literary technique or method of writing a counter drama. It has been done specifically for the purpose of criticism of the drama, the ideals and the events dealt with therein. The scheme of criticism is to reproduce such parts of the drama which is to be criticised for the effectiveness of the criticism and not for the purpose of re-enacting the drama for a rival purpose or to cause prejudice monetary or otherwise to the author for the persons in whom the copy right is vested. Such copying or adoption will not amount to unfair appropriation of the drama was the submission on behalf of the 1st defendant It was contended that the same is the case in regard to the alleged adoption of portions of the dialogues and the names of some of the characters in the drama as part of the counter drama. It was sub-mitted that in the light of the claim made and the defence set up, the plaintiffs can be found to have established a prima facie case of infringement of the copy right only in case it is found that the defendants have failed to substantiate prima facie their statutory defence of ‘fair dealing’. This in brief is the scope and effect of the pleadings and arguments of the parties.
7. From what is discussed above, it is clearly a case where, while the plaintiffs have got a copy right in the drama and they have put forward a claim based on its alleged infringement by the 1st defendant by copying substantial portions of the drama, the defendants have put up a statutory defence of ‘fair dealing’ inanswerto the plaint claim. In the circumstances, it becomes necessary to consider what are the guiding principles to be followed and the approach to be made in the matter of granting or refusing the interim injunction prayed for in this case.
8. The law regarding copyright and its infringement in India is at present contained in the provisions of the Act and the decisions rendered prior to and subsequent to the Act by the Indian Courts and the Foreign Courts to the extent they do not go against the statutory provisions. While Section 51 of the Act deals with actions which may amount to infringement of the copyright, Section 52 deals with the acts which may not constitute an infringement of copyright. Section 52(1)(a) of the Act reads thus:
“52. Certain acts not to be infringement of Copyright. (1) The following acls 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 purposes of-
(i) Private use, including research; (ii) criticism or review, whether of that work or of any other work;”
9. The term ‘fair dealing’ has notbeen defined as such in the Act. But Section 52(1)(a) and (b) specifically refers to ‘fair dealing’ of the work and not to re-production of the work. Accordingly, it may be reasonable to hold that the re-production of the whole work or a substantial protion of it as such wil not normally be permitted and only extracts or quotations from the work will alone be permitted even as ‘fair dealing’. In the circumstances, the quantum of extracts or quotations permissible will depend upon the circumstances of each case. It may not be proper to lay down any hard and fast rules to cover all cases where infringement of copy right is alleged on the basis of extracts or quotations from the copy-righted work. In a case like the one on hand, court will have to take into consideration (1) the quantum and value of the matter taken in relation to the comments or criticism; (2) the purpose for which it is taken; (3) the likelihood of competition between the two works.
10. According to Copinger, the learned author, “it is only when the court has determined that a substantial part has been taken that any question of fair dealing arises. Though, once this question arises, the degree of substantial ity, that is to say, the quantity and value of the matter taken, is an important factor in considering whether or not there has been a ‘fair dealing’. Further, it is thought that, even under the present law, in considering whether a dealing with a particular work was fair, it would have to be considered whether any competition was likely to existbetween the two works. Buteach case will depend on its facts, and what may be fair in one case will not necessarily be fair in another case.”
(See Copinger and Skone James on Copyright Eleventh Edn., Paragraph 461, page 196).
11. As regards the principles governing grant or refusal of injunction in copy right cases, the following passage from Halsbury's Laws of England, 4th Edn., Vol. 9, paragraph 944, is apposite and may be usefully quoted:
“An interlocutory injunction will not, however, be granted where the defendant mightsuffer irreparable injury from an injunction restraining him from publishing pending the trial and the plaintiff can be properly protected by the defendant being ordered to keep an account, nor will it normally be granted where a bona fide defence of fair dealing has been pleaded, coming to the Court or his conduct has amounted to acquiescence in the infringement or if there is any substantial doubt as to the plaintiff's right to succeed. It has been held that in considering whether to grant an interlocutory injunction the judge must look at the whole case and that the remedy by interlocutory injunction must not be made the subject of strict rules.”
12. The balancing process indicated by Lord Diplock in American Cyanamid v. Ethicon (1975) RPC 513 at pages 539-542) is relevant:
“The object of interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiffs' need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiffs' favour at the trial. The court must weigh one need against another and determine where the balance of convenience' lies.”
13. Along with the above special legal principles applicable to copy right cases, the normal factors to be established before granting or not granting interim injunction have also to be kept in view, namely the establishment of a prima facie case, the balance of convenience and the irreparable injury likely to be caused incase injunction is refused. At the same time, it has also to be borne in mind that it is not part of the court's function at the interlocutory stage of the litigation to try to resolve finally any of the points to be decided in thesuit with reference to the evidence yet to be adduced in thesuitduring trial.
14. Hubbard v. Vosper (1972 - (2) W.L.R 389) rightly relied upon by the learned District Judge was a case where a claim based on infringement of copy right was put forward on the allegation that copious quotations were made by the defendant in his book from the copy-righted work. As in this case, the defence in that case was also one of ‘fair dealing’. Of the three Judges of the Court of Appeal who heard the case, Lord Denning M.R, L.J has dealt with in detail the principle to be borne in mind while issuing interim injunction with specific reference to the defence of ‘fair dealing’. It was also a case where the trial Judge had initially granted ex-parte interim injunction which was later confirmed by him after hearing the defendant. On appeal, the Court of Appeal had vacated the order of injunction and permitted the defendant to proceed with the publication of his work without any condition whatsoever. It was held in the decision that ‘fair dealing’ is a question of fact and of impression to which factors that are relevant include the extent of quotation and its proportion to comment (which may be justifiable although the quotation of the whole work). It is relevant to quote the following passage from Vosper's case (Page 398, Denning LJ):
“It is impossible to define what is ‘fair dealing’. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel so with fair dealing in the law of copyright. The tribunal of fact must decide.”
15. In the same decision, it has been held that criticism or review may relate not only to literary style but also to the doctrine or philosophy of the author as expounded in his book. A fair criticism of the ideas and events described in the books or documents would constitute ‘fair dealing’. It is also relevant to quote the following observations of Lord Denning M.R in Hubbard v. Vosper (1972 (2) W.L.R 389):
“In considering whether to grant an interlocutory injunction the right course for a judge is to look at the whole case. He must have recalled not only the strength of the claim but also to the strength of the defence and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain status quo until the trial. At other times it is best not to impose a restriant upon the defendant to leave him free to go ahead. The reason is because the defendant if he is right is entitled to publish it and the law will not intervene to suppress freedom of speech except when it is abused.”
16. As regards the decisions of our Supreme Court and the High courts referred to by the counsel on both sides, it has to be noted that none of them are cases where a defence of ‘fair dealing’ was put forward directly as a defence. The Supreme Court in R.G Anand v. Delux Films ((1978) 4 SCC 118 : A.I.R 1978 S.C 1613) which was a case where literary piracy or plagiarism was put forward and denied has held thus:
“One of the surest and the safest test to determine where or not there has been violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the work is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.”
17. It has also been clearly laid down in the above decision that “there can be no copyright in an idea, subject-matter, themes, plots or historical or legendry 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.”
18. Keeping in mind the above principles of law and the facts and circumstances of the case, it is necessary to consider whether the plaintiffs have succeeded in establishing a prima facie case of infringement of the copyright to get an order of interim injunction as granted by the learned District Judge in this case.
19. For a proper consideration of the above question, it may be useful to have at least a broad idea about the theme, events, characters and certain other important features of the drama and the counter drama.
20. It was in 1952 that the drama was written by Thoppil Bhasi. At that time, Bhasi was an active worker of the Communist Party of India and in fact he wrote itwhile he was living in political hiding. The main theme or story of the drama is the touching story of the oppressed and depressed classes of the contemporary society in Kerala consisting mainly of agricultural and all other kinds of workers who have turned out to be revolutionaries attracted and guided by the new political ideology of the undivided Communist Party of India. It was the most popular drama of that period. The main purpose intended to be achieved by writing the drama was to organise the oppressed classes or common people of the lowest strata of the society to fight against social evils and to have a social, political and cultural revolution in the contemporary society so as to set up a new social order where the workers will be the rulers. The clarion call of the party to its followers was to unite, revolt and fight against poverty, dpprerssion, exploitation and all other kinds of social and political evils and to sacrifice everything for the success of the cause for which they were fighting. The promise made by the party to its followers and the public was that they can hope for a better tomorrow and the establishment of a new system in which they will be the rulers and can live a life worthy of living. The characters in the drama fall mainly into two or three groups. They represent a) landlords and others belonging to rich upper classes who lead a life full of pleasures exploiting the poor uneducated and socially backward classes of the society; b) social and educationally backward classes of the society who are mainly agricultural and other kinds of workers toiling day in and day out and still living in poverty and miseries of all kinds; and c) dedicated workers and leaders of the Communist Party. Valiya Veettil Kesavan Nair is the representative of the landlord class bent upon exploiting and harassing the working class in all respects for safeguarding their self interest Paramupilla, Velussar and Kallyani Amma are characters representing upper middle class people who cling on to their past glory even while struggling for existence as a result of new land legislations and other social and political changes. Mala, Karampan, Sumam, Gopalan, Mathew and Pappu are all political workers and leaders of the party. Of them, Mala and Karampan are representatives of the most depressed class of people in the society. Sumam, Gopalan and Mathew hail from upper or upper middle classes. Mala, a pulaya lady, considered as the most important character of the story has been characterised as an ardent party worker who have sacrificed everything for the success of the cause for which the party herself and her people were fighting. Though Gopalan and Mala were close to each other for a long time and were in love with each other, Gopalan ultimately falls in love with Sumam, an upper class party worker who is also the daughter of Valiya Veettil Kesavan Nair. Kesavan Nair representing the exploiting classes of the society becomes a desperate man at the end of the drama when he found that even his own daughter has turned out to be an ardent Communist Party worker and that she has fallen in love with Gopalan whom he hates top to bottom. Though desperate, Kesavan Nair still declares that he had not been defeated so far and he is not going to be defeated hereafter also. At the end of the drama, Paramupilla, father of Gopalan who at the beginning of the drama strongly resisted and protested against all the activities of workers and leaders of the party gets transformed as a Communist slowly but steadily and joins with Mala, Karampan and other party workers and leaders in participating in Jadhas and raising the red flag. The drama ends when Paramupilla in an inspired mood gets the red flag held by Mala from her and declares that he wanted to hold it and hold it aloft with both hands. The drama consists of 14 scenes.
21. It is in 1995 about 4 decades after the drama was written that the counter drama was written and published for the first time. It contains 9 scences together with a short introductory scene. All the characters who appear in the introductory scene are characters of the drama. Mala with a red flag, Karampan, Mathew, Pappu and Gopalan appear together in the background of a burial ground with a martyr's memorial building therein. They appear on a lower part of the stage. On the upper part of the stage, Paramu Pillai & Kesavan Nair of the drama also appear simultaneously. Dialogue spoken to by the characters in the introductory scene relate to red flag, the war that was waged by Mala and others who united under the Red flag, the failure of the war waged by them. Paramupilla, a conservative upper middle class Nair small land holder harassed by the rich landlord Kesavan Nair and helped in many ways by party workers saying that he will hereafter live as a Communist and will be in the forefront of political agitations and processions. He expresses his desire to hold the red flag aloft. Kesavan Nair declares that he is not going to admit defeat and is determined to live changing himself in terms with the changed political and social set up. The scene ends with Thoppil Bhasi's appearance on the scene saying that he has come there to see the real condition in which Mala is at present. The curtain falls with an announcement to the following effect; “Ningal Are Communistakki—Counter drama—In the theatre a political dialogue— Ningal Are Communistakki”. In the first scene the actors are the watchman of the burial ground, an old man who is a character in another drama written by Bhasi, and Bharathi the adopted daughter of Mala. Bharathi and the old man have come to the burial ground with the dead body of Mala to be buried there. The day happens to be the day prior to the date fixed for swearing-in the new Chief Minister elect who is none other than Gopalan, the leader with whom Mala and others have waged their struggle against oppression and feudal domination. Through the dialogue between the characters of the counter drama what is sought to be conveyed is that When ultimately the party has won the elections and come to power and Gopalan who had by then married Sumam the daughter of Kesavan Nair after foresaking Mala and her love is going to be sworn-in as Chief Minister, Mala who represented the toiling masses of the depressed and oppressed class of the society had to die with a broken heart in the same old pitiable condition with shattered aspirations and hopes of a better tomorrow promised by her party and its leaders leaving her only daughter (adopted) in a hapless condition. The dialogue in the scene in its entirety is about the drama, its characters, their life, about its author and the K.P.A.C who staged the drama. Bharathi addresses the deadbody of her mother Mala and says; Mother, tell these audience who have already seen the drama on more than 5000 stages, as to what has happend? What has been hidden by Thoppil Bhasi, K.P.A.C and the Communist Party? How Mala's red flag was snatched away and handed over to Paramupilla and Kesavan Nair by Gopalan and Mathew? How they held it aloft? How they have santached the leader ship jumping over Mala and Karampan who were in the front raw of all agitations. How Mala and Karampan were again contemptuously drivan away far apart 64 feet away? As indicated at the end of the introductory scene, what is contained in scene one is a discussion and a critical assessment about the theme and events of the drama in the changed set up. The second scene of the counter drama is a repetition of scene No. 8 of the drama. It has been stated so at the beginning of the scene itself. AH the characters and the dialogue are the same as in scene No. 8 of the drama. The comments made by Bharathi at the end of the scene alone is the addition made by the author of the counter drama and that is to this effect: “This is how Gopalan made Sumavali Amma the heroine of his own life and that of the party kicking the heart of Mala.”
22. Scene 3 is specifically indicated as a continuation of scene 2. Bharathi, old man and the watchman are the only characters who appear in scene 3 also. Characters are involved in a keen discussion about the conduct of party leaders like Gopalan and others in the drama at the time of discussion, how Mala was foresaken and betrayed by Gopalan and about certain political developments of general importance which took place subsequent to the writing and staging of the drama concerning the leaders of the party and the cultural revolutipn which followed the staging of the drama. In scene 4 also, the characters are Bharathi, old man and the watchman. Bharathi and the old man are engaged in an animated discussion about all that has happened to Bharathi, the adopted daughter of Mala, Mala, the heroine of the drama and a frontline worker of the party, Karampan, Mala's father and to their hopes for a better tomorrow. Certain political and social developments both current and past are the topics discussed by the characters. In the discussion, well-known political and social leaders like Sir C.P, Iyyankali and Com. Krishna Pillai are being referred to incidentally. It also refers to the fall of the Communist party in Eastern Europe. A reference is even made to the famous story in Mahabharatha where Kauravas attempted to kill the Pandavas and their mother Kunthi trapping them in a building built of wax and setting fire to it. Though Pandavas getting information about the treacherous plan of the Kauravas escape from the wax building timely through an underground path, Bhirria who sets fire to the wax building sees that a Nishadha woman and her five childern who were given food by Kunthi get perished inside the building so as to make it appear to the Kauravas that Pandavas have really perished in the fire. The suggestion made by referring to the epic story is that the intelligent and clever upper class always escapes or succeeds whereas the depressed and oppressed class always fails or gets cheated and perished at the hands of the upper class. The entire dialogue between Bharathi and the old man is clearly a criticism of the various actions which the party had taken during the time when the drama was written and thereafter till date. In scene 5, the characters are Karampan, Sumam, Gopalan and the old man. In fact, a portion of scene 7 of the drama has been made part of scene 5 of the counter drama. Copying has been specifically acknowledged at the very beginning of the scene itself. The only addition to the extracted portion of the drama is the comment made by the old man at the end bf the scene. Scene 6 is stated to be a continuation of scene 5. In scene 6 again, the old man, Bharathi and the watchman are engaged in an animated discussion and criticism of the different ways in which the followers of the depressed classes and the upper classes within the party have behaved during the time of the political and cultural revolution and thereafter. There is even a comparison between the work done by personalities like Iyyankali and Sreenarayana Guru and that done by party and its leaders for the oppressed and depressed classes with a view to show that how insincere was the party and its leaders towards the oppressed and depressed classes for whose upliftment and welfare the party was supposed to have been built up. The suggestion is that the party and its upper class leaders were cheating the depressed and oppressed section of its followers and were betraying them for their own personal benefit As such, the old man suggests that they should have poets, leaders, artists, singers and philosophers from their own class and not from the tipper classes who cannot at all be believed. This in short is the critical assessment made by Bharathi and old man during their dialogue in scene 6. Scene 7 again incorporates a portion of scene 13 of the drama though a very small portion. As scene 3 and 6 were continuation of scenes 2 and 5, scene 8 is also stated to be a continuation of scene 7. In scene 8 again there is a heated discussion among Bharathi, old man and the watchman about certain events and developments which took place in the past and about matters to happen hereafter as well. It again is a critical analysis of the social and political chanages taking place in Kerala and in the world. Mainly what is suggested in the discussion is that persons with vested interest always try to comer power and to continue in power whatever be the changes which may happen in the social and political set up. The old man declares that success is always that of ‘Valiyaveetans’. They become Congress when Congress rules, they become Communist when Communist comes into power, they would become nexalites when nexalites come into power. Com. Gopalan, the Chief Minister elect and Valiya Veettil Kesavan Nair his father-in-law comes to pay their respects by placing wreaths infront of the Martyr's memorial building. Kesavan Nair was accompanying Gopalan to be honoured by conferring the title of Padmasree by Gopalan on that day itself. As soon as they enter the scene, Bharathi and the old man rush to the scene with the covered dead body of Mala and then slowly removes the cloth from her face. Mala begins to speak slowly in a low voice to the effect that in the war we failed, failed, failed. Then the old man just like a magician makes Mala stand up as if she was only sleeping till then. Thereafter in the stage a trial goes on in which Mala takes the role of, a Judge. At the time when the trial was about to begin, Thoppil Bhasi enters saying to Mala that I have come again to see you and to see the real condition in which you are. At the end of the scene, the old man makes a declaration to the following effect: “But Mala, can we be satisfied with this old red flag even now? Should we not begin from where the Soviets and Communes have failed? Should it not be necessary forus to read Gandhi and Lohya at least now? Is there not before us the path, Neyogi, Amte and Medha are now treading upon? Yes. We should have a new concept of freedom. A new relationship between society and nature.” There is a further note to the effect that from here a dialogue begins.
23. From the above broad comparative analysis of the drama and the counter drama, it is evident that copyingor re-production of the portions of the drama was obviously not for the purpose of re-producing the drama either as a whole or in a substantial manner to convey the same idea which the author of the drama wanted to convey. The purpose was also not to imitate the drama or to produce a drama similar to the drama misappropriating the theme, the form of presentation, the characters, the dialogues and the technique adopted in writing the drama. Except in the scenes where expressly portions of scenes from the drama are adopted or incorporated as part of the counter drama all other scenes are scenes written without copying any of the features of the drama. The theme, the ideology intended to be propagated, the events discussed and the dialogue used and the technique adopted in writing the counter drama are entirely different from that of the drama except in the portione adopted from the drama. In fact, it is more or less evident that the purpose of writing counter drama is to criticise the idea propagated by the drama and to expose to the public that the drama has failed to achieve the real object intended to be achieved by writing the same. What is intended to be conveyed through the counter drama is that though the party has succeeded in coming to political power, it has foresaken or forgotten the depressed classes who have fought mainly for its success and lost everything in that process including the lives of large number of them. As in the case of drama, in the counter drama also, there is a message to be conveyed to its readers and viewers. The message is the one which the old man has declared in the last scene which has already been referred to earlier. The finding of a new path to establish a new social order removing the inequalities and evils now existing in the present system is the object to be achieved. The dialogue spoken to by the characters of the counter drama are mainly criticism of the drama and the contemporary social and political developments taking place in Kerala and outside in Kerala. Often references are made to well-known social and political leaders and historical incidents which are considered as milestones in the progress of society in Kerala. It may be extremely difficult to hold at least at this stage of the case that there are no new thoughts or new ideas in the counter drama and no labour and skill of his own was used by the 1st defendant in writing the counter drama and that it is a mere reproduction or imitation of the drama with inconsequential changes effected here and there merely to escape from the charge of plagearism or literary piracy. That apart, even in respect of the 3 or 4 scenes where portions of the drama have been adopted as such, there is prima facie force in the submission that it was for the purpose of recapitulating the important events in the drama that they were copied as such in the counter drama. Technique used is to reproduce or re-enact part of the drama from a raised portion of the stage and in the succeeding scene staged in a lower part of the stage as a continuation of the scene, make criticism of the important events directly dealt with in the drama in the light of the subsequent developments through the dialogue spoken to by the characters in the counter drama. Prima facie, I am inclined to take the view that the attempt was not to reproduce either a scene or part of a scene in its entirety with a single comment made at the end of the quotation for conveying the same idea for a rival purpose, namely to reproduce the drama itself or part of it for monetary benefit causing loss to the owners of the copyright. The comment made at the end of the reproduction seems to be not one used only as a cover to mask the copying. It used to be discussed at length in the succeeding scene in the own language of the author of the counter drama without borrowing anything from the drama. In fact, such discussion used to be severe criticism of the theme and the ideology and philosophy of the author of the drama and the party and other connected matters. Whether such criticisms are fully justifiable or well-founded or bona fide is a matter to be decided after the entire evidence is adduced and duly considered in the case. The only point to be noted is that appropriation of part of drama as part of the counter drama was not for the same purpose for which the drama was written and was for the purpose of criticism of the theme, events and the ideology of the book and its author. At any rate, it was not for the purpose of imitating or reproducing drama like the copyrighted drama or to produce the same drama with some insignificant changes here and there. By no stretch of imagination one can come to such a conclusion in this case. There is every reason at least prima facie to think as contended on behalf of the appellants that the portions of the drama were made part of the drama only to make the criticism of the drama and the events discussed in the drama more effective and dramatic. The counter drama is a criticism of the drama only in part. It is not a work in which the drama and its author alone are criticized. Substantial portion of the counter drama is intended also to criticize various political and social developments of current importance and to bring about a new political and social system curing those defects on account of which the movement led by the party and the characters in the drama failed according to the author of the counter drama or the characters in it. If, as a matter of fact, and as contended by the appellants, the drama, its ideas, events and its author are sought to be criticized in the counter drama along with various other contemporary developments in the political and social fields, there is strong reason to accept at least prima facie the contention that the quotations were made mainly for the purpose of effectively criticizing the drama. Without the attention of the readers and viewers being drawn to the relevant portion of the drama, the criticism to be made through the counter drama cannot be effective. Viewed in this manner, I find that there is sufficient reason to accept at least prima facie that there is a strong defence case to be considered on merits put up by the defendants in opposition to the claim of the plaintiffs in the suit.
24. It was contended that even if the purpose of copying or reproduction was to criticize the portions of the drama or the ideologies of its author or the party, still, it may not amount to ‘fair dealing’ unless the defendants show that the criticism is fair and justifiable in the facts and circumstances of the case. Even assuming that the defendants in this case are under an obligation to establish that the criticism is justified in the facts and circumstances of the case, the question whether the criticisms levelled are all justifiable or not is a matter to be considered in the suit itself and cannot be dealt with at this interlocutory stage. Defendants may have to be given an opportunity to establish that the criticism levelled is fair and justifiable in the facts and cricumstances of thei case.
25. At one stage of the argument it was submitted that there was no criticism either of the drama or its ideals, but the intention of writing the counter drama was only to level baseless allegations and accusations againt the author of the drama and the party and its leaders. Even assuming that it is really so, it may not help the respondents to establish their case that there is infringement of the copyright and on that ground to get an injunction against the defendants.
26. If on the other hand, the main purpose of the author of the counterdrama is to critically analyse the activities of the party and the author who was an ardent Communist Party worker while the drama was written with reference to the events which took place subsequent ot the staging of the drama and the success of the party in getting political power and to express his own views or conclusions about it, the injunction ordered will really interfere with the freedom of expressing those ideas in an accepted art form. As the matters dealt with are of current importance, the prevention by injunction of the printing and publication and staging would be illegal and unjust. The counter drama in that event will altogether lose its relevance and would become practically worthless or useless, even if the suit is ultimately dismissed.
27. It is relevant in this connection to note two or three other important aspects of the case also. First of all there is no case even that there will be any competition between the drama and the counter drama even if the counter drama is printed and published or staged. By no stretch of imagination, it can even be suggested that those who wanted to read or see the drama will read or see the counter drama. As such, one of the relevant considerations laid down in Habbard v. Vosper (1972 (2) W.L.R 389) to be satisfied while granting injunction, namely, that there is likely to be a competition between the two works is not satisfied in this case.
28. Secondly, it is to be noted that the counter drama was published as early as in January, 1995 and the suit was only instituted in July, 1995 just a day prior to the date fixed for staging the drama. If the plaintiffs were aggrieved by the printing and publishing of the counter drama, there is no explanation why they have not taken any action immediately after the printing and publication of the counter drama. Though the above circumstances may not be fatal to the maintainability of the suit, it should have been taken note of while considering the question or granting an injunction as prayed for by the plaintiffs in this case.
29. Thirdly, while considering the question of irreparable injury and balance of convenience the learned Distict Judge ought to have taken note of the specific contention put forward by the defence that the defendants especially defendants 2 and 3 have made all arrangements for staging the counter drama spending a huge amount and that if the staging is stayed, it will result in irreparable loss and hardship to them and that if an injunction is not granted, no irreparable injury would be caused to the plaintiffs. Even if any monetary loss is likely to be caused to the plaintiffs on proving the same, the plaintiffs could be compensated by directing the defendants to pay such damages or compensation which the court deems fit From the case set up in the plaint itself, it is evident that even now the drama is popular and is in demand for staging profitably. The exploitation of the drama by staging the same or by printing and selling it, will not in any way be affected by the printing and sale or staging of the counter drama. So long as there is no case that the staging of the counter drama would affect the collection that is being expected from staging the drama, it may not be possible to contend that monetary loss is going to be caused to the plaintiffs as a result of Staging the drama. There is also a case for the defendants that unless the counter drama is allowed to be printed, sold and staged it will loose all its relevance as the matters dealt with in it are of current importance.
30. I may also make a note of the contention raised by the plaintiffs in the plaint that there is an attempt in the counter drama to denegrade or tarnish the fair name and repute of the author of the drama. Even assuming that there is such an attempt, it eannot be treated as an infringement of the copyright and no injunctin can be obtained in this suit on that basis. However, in this connection, I may record the submission of the learned counsel for the appellant that in the future publications of the counter drama, they will drop the following sentences from the script of the drama:
31. It was also submitted that while staging the drama also, the above sentences will not be used as part of the drama.
32. In the light of the discussion made above, I am constrained to take the view that the learned Judge was not justified in granting an injunction in the facts and circumstances of this case. In my view, the defendants have prima facie succeeded in establishing that copying of portions of the drama even if it is held to be substantial portions, was for the purpose of criticism and as such it will only amount to a ‘fair dealing’ and not an infringement of the copyright. If the defendants have succeeded in establishing prima facie that they have the statutory defence of ‘fair dealing’ to put up against the plaint calim, it may not be possible to find that the plaintiffs have succeeded in establishing a prima facie case of infringement of the copyright even if admittedly there is copying of portions of the drama in the counter drama, in the light of the above findings, I would set aside the order granting the injunction and would dismiss the application for injunction.
33. As the injunction application is being dismissed, it is absolutely necessary that the trial and disposal of the suit should be expedited to the maximum extent possible. Both the parties have expressed their readiness to get ready in the matter at any time the court decided the case to be posted for trail. In the circumstances, there will be direction to the court below to complete all pre-trial steps within a maximum period of three months and to post the case to a definite date after the expiry of the three months and to proceed with trial till the end, posting the case on a day to day basis to the extent possible.
34. In the light of the somewhat detailed discussion of the various aspects of the case contained in this judgment, I would specifically make it clear that none of the observations and findings contained in the judgment about the merits of any of the contentions raised in the suit should prejudice the trial and disposal of the suit and the suit should be disposed of unaffected by such observations and findings in this judgment.
35. Forward a copy of the judgment along with the records if any records have been called for.
36. C.M.A is accordingly allowed.
37. Order passed by the court below is set aside. I.A No. 395/1995 will stand dismissed. The parties will bear their respective costs.
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