Rai Toys Industries And Others, Delhi v. Munir Printing Press, Delhi

This is an appeal against the judgment of the Journal single Judge by which he decreed the plaintiff's suit for Injunction and for rendition of account on the ground that the defendant-appellant had infringed the copy right of the respondent plaintiff in his publication.

The plaintiff alleged that one J.R. Mehra wrote a book in 1929 and got it registered as a copyright under the Indian Copy Right Act. The plaintiff's allegation is that he is a registered owner of copy right for Tambola ticket book. It was said to have been published for the first time in 1929. The certificate granted under the Indian Copy Right is also stated to have been obtained in 1962.

The Tambola Ticket books of the plaintiff contained 1500 different tickets which are in the form of tables for which the skill, ability and originality are necessary. The allegation is that the defendants have brought out Tambola ticket book containing 600 different tickets in the form of table and are selling them in the market. These 600 tickets in the defendant's book are said to have been copied identically from the 600 tickets of the plaintiff. On this basis the suit for injunction and rendition of account was filed. The defendant denied the allegation.

The learned judge has found that the plaintiff is the registered owner of the copy right of Tambola Ticket Book. He also found that Ex. p.7 book of the defendant has 100 pages containing 600 tickets. These tickets were found to be identical with the tickets to be found in the plaintiff's book Ex. P. 6. He, therefore, held that there was infringement of the copy right. He rejected the contention of the defendant that this was not a literary work as defined in the Copy Right Act, 1957. He however rejected the plea of the plaintiff that the validity of the registration of the Copy Right could not be raised in these proceedings. As he found on merits in favour of the plaintiff, he decreed the suit. The defendants have come up in appeal.

The Tambola Ticket book is used in a game which is fairly popular and is called by different names like Tambola, housie, etc. Broadly there are three horizontal rows of 9 spaces in each row i.e. total 27 spaces. Of 9 spaces five in each row have numbers. Numbers are called out and whosoever is first able to score out the fifteen numbers is declared the winner.

It is not disputed before us that the tickets in the defendants book are identically similar to what are to be found in the plaintiff's book. The similarity of all the 600 tickets obviously could not be a matter of chance. It could not be seriously disputed that these tables had been picked up from the plaintiff's book. What was however sought to be contended by Mr. Anand, learned counsel for the appellant was that there was no copy right in the book and also in law no copy right could exist in this kind of work. Mr. Anand's contention was that mere filling up of numbers in the tickets was not a matter in which copyright could exist.

Section 13 of the Copyright Act (hereinafter to be called the Act) provides that copyright shall subsist amongst others in literary work. Section 2(o) of the Act defines literary work to include tables and compilations. Reference to the Tambola Tickets Book would show that for preparing the tickets obviously require quite a deal of skill and awareness of placing the numbers correctly. Each ticket must have different arrangement of numbers so as not to be confusing and mixed up with others. If tickets contain the same number it will all get mixed up and spoil the fun of the game. Preparation of 1500 tickets and placing them in one book form would require good deal of skill and labour and would thus satisfy the test of being original, literary work. It should also be noted that compilation is included in the definition of literary work. Tambola ticket book cannot be called some easily available information which is bodily lifted and put in the compilation for which no skill was necessary. If that was so the same could not fulfil the test of being literary work as was the case in G.A. Gramp & Sons Limited v. Frank Smythson Limited, (1944 A.C. 329). There the dispute was between the two publishers of pocket diaries. The diary contained usual pages and these were accompanied by pages containing information of the kind usually found in diaries -- a calendar for the year, postal information, a selection of days and dates for the year, tables for weights and measure, comparative time tables etc. The House of Lords held that this was not the case where the copyright was established since the common place matter of the tables left no room for test or judgment and their selection did not constitute an original literatry work. The present case is different. The arrangement of numbers in tickets is the individual work of the person who prepares it ; it bears his individuality and long hours of labour. It is not information which could be picked up by all and sundry. The preparation of tickets is an individualised contribution and the compilation eminently satisfies the test of being an original literary work. Each case of course depends on its own circumstances. To be original literary work does not mean it has to be original throughout under the Copy Right Act. The labour and skill employed in selecting and arranging existing subject-matter may give copyright protection to the resulting work …..Thus protection has been given to such compilation (a) as an arrangement of broadcasting programmes (b) school test books (c) and alphabetical list of railway stations contained in Bradshaw's Railway Guide, (d) columns of birth and death announcements in a newspaper (e) sheets of election result (vide Article 131 of Copinger and Skone James on Copy Right).

In R.G. Anand v. M/s. Delux Films and others (1978) 4 Supreme Court Cases 118) one of the tests for finding whether copyright has been infringed has been given as under :

The surost and safest test to determine whether or not there has been a violation on 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.

It has also been laid down that the court should determine where if the defendant's work is nothing but literal imitation of the copyright work with some variation here and there it would amount to violation of copyright. In the present case it cannot be said that the tickets are merely compilation of information which is usually available. The preparation requires skill, labour and deep application of mind. The game being very popular it is apparent that in clubs and other places a number of ticket are to be immediately made available for the purpose of game. It is not possible for the organisers to make on the spot 100 tickets which are to be sold to those participating. For such a purpose Tambola ticket books are to be available for use by the organisers. If therefore the plaintiff has by applying skill, time, labour produced a book containing 1500 tickets and the defendants choose on the sly to pick up 600 tickets of these and puts them in a book without even the change of single figure it is nothing but sheer piracy and would be clear infringement of plaintiff's copyright. In our view the learned single Judge was right in holding that there was infringement of copyright of the plaintiff and we approve his finding.

Another objection was that it was not proved that there is a copyright in this book. Though it is the plaintiff's case that they had published the book prior to 1947 (and judge had so found) there is undoubted evidence of the registration of the copyright in 1962 vide Ex P.1 dated 4.12.1962 granted by the Government of India. For the present purpose it does not really matter whether the respondents had brought out the book tickets prior to 1947 (though we are inclined to agree with the single Judge) because it stands established that they had got the copyright registered since 1962. The appellant came into the field very late sometime in 1975 and therefore once it is held as we do that there was a copyright in the book of the plaintiff and the similarity in the book of the defendant is completely identical to that of the plaintiff there is no manner of doubt that the copy right of the plaintiff has been infringed.

We may note another argument which was sought to be raised by the respondent. The learned Judge has held under issue No. 3 that the validity of the copyright can be challenged in the suit proceedings. Mr. Anoop Singh challenges this findings & maintains that the only avenue open to the person against whom a suit is filed for infringement of a registered copyright is to ask for rectification of the Register and he cannot raise the question of the validity of the copyright in the suit proceedings. Reference is also made to Section 44 of the Act, which provides for the maintenance of the Register of copyright and section 48 which makes the copyright registry to be prima facie evidence of particulars entered therein. Our attention is also drawn to Section 50 which provides for the rectification of Register by Copyright Board and to sub-section (2) of Section 72 which provides for further appeal from the Copyright Board to the High Court. The argument of Mr. Anoop Singh is that once registration has been issued under the Copyright Act, like Ex. P. I. The only remedy available for a person to challenge the copyright is to file an appeal to the Copyright Board and then to the High Court and it is not open to challenge the validity in the suit proceedings. He has referred us to R.F.A. 17-D of 1963, Shri Tilak Raj, Sole Proprietor of M/s. Rajan Industries. High Class Cultery Manufacturer M/s Clean Deal. Industries Decided on 7.11.1973 under the Indian Patents and Designs Act, 1911 wherein this court held that because of provision of section 51-a, the plea of the validity of the registration of the High Court and that the defendant could not raise about the validity of the design in the trial court. We feel it unnecessary to decide this point because on merits we are holding that the plaintiff's book could be the subject matter of copyright under the Act and the appellant cannot in law be permitted to appropriate to himself the effort of skill, and brain of the plaintiff.

The next argument raised by Mr. Anand was that the appellant had at the stage of interim injunction against him stated that he will not sell the book in future and had suffered injunction willingly. He therefore contended that the decree for rendition of account should be set aside. We find no justification for doing so. The learned judge has noted that the only remaining claim is for accounts for any work that may already have been sold prior to the injunction in breach of the plaintiff's copyright and order the appointment of local Commissioner for the purpose. If the case of Anand is that the appellant has not sold the ticket book since then, he may place that information before the local Commissioner or who no doubt will deal with it in his report. In law once the infringement of copyright has been proved the decree for rendition of account is an inevitable consequential relief.

As a result of the above, we find no merit in the appeal and the same is therefore dismissed with costs. Mr. Sumit Mukherjee, Advocate of this court is appointed the law Commissioner in this matter who will submit his report within eight weeks. His fee for the present case is fixed at Rs. 750/- to be paid by the defendant.