Narayan Shukla, J.:— Heard Mr. Prashant Chandra, learned Senior counsel assisted by Mr. Akshat Srivastava and Ms. Purnima Singh, learned counsels for the appellants as well as Mr. Sudeep Seth, learned counsel for the respondents.
2. Instant appeal is directed against the order dated 1st January, 2014, passed by the District Judge, Lucknow on the application for temporary injunction filed in Regular Suit No. 134 of 2012. By means of order impugned, the learned District Judge has allowed the respondents/plaintiffs' application for temporary injunctions.
3. The facts which are essential to be exposited are that the respondents-plaintiffs instituted a suit being Regular Suit No. 1234 of 2012 before the District Judge, Lucknow for permanent injunction restraining the appellants-defendants from infringement of Copyright Act, 1957 (hereinafter referred to as Copyright Act), redention of accounts, delivery of infringing copies etc. in which they also sought an interim relief of the same nature till disposal of the suit. The respondent no. 1.plaintiff no. 1 claims itself owner and publisher of law report “Supreme Court Cases” and further owns all the copy rights subsisting therein. The respondents/plaintiffs also claim to be publishers and distributors of SCC online Case Finder on Cdrom and its web edition and the web-sites www.ebc-india.
4. Reserved com and www.sconline.com. Respondent-plaintiffs submitted that edition of SCC is based on the Editors reading of the whole judgment and understanding of the question of law and facts involved. They determine whether to label it as “concurring”, “partly concurring”, “dissenting” or “partly dissenting” or “supplementing” etc. They also uniform the paragraphs of the judgment by separating it in seriatum of multiple opinions and in case any opinion refers to its own para number (s) internal referencing is done. In these tasks the Editor uses sound judgmens creativity and legal skill. A very significant role done by the Editor is to input the references, clarification and explanation to the raw text of the judgments, either in the text or as a footnote and most importantly he put the editorial notes and its comments. For easy and quick understanding of the case the editor culls out various rulings laid down in each case, which makes available to the readers the law laid down under different statutes.
5. In order to save their copy right they also refer one judgment of Hon'ble Supreme Court rendered in the case of Eastern Book Company v. D.B Modak (2008) 1 Supreme Court Cases. In this case Hon'ble Supreme Court allowed the test of minimum creativity for recognizing the Copyright in any of the inputs made by the respondents-plaintiffs in their copy edited text.
6. The respondents further submitted that Hon'ble Apex Court acknowledged five copyrights vest in the plaintiffs law reports “Supreme Court Cases” which are extracted blow;
(a) Creation of paragraphs in their copy-edited version by segregating existing paragraphs in the original text by breaking them into separate paragraphs and/or by clubbing separate paragraphs, and in the paragraph numbering.
(b) Internal referencing, after providing uniform paragraph numbering to multiple judgments.
(c) Inputs in respect of editor's judgment regarding the opinions expressed by the Judges by using phrases like “concurring”, “partly concurring”, “dissenting”, “partly dissenting”, “supplementing”, etc.
(d) Editorial notes.
(e) Head notes
On the basis of the above settled law the present plaint/suit is being filed against the copyright infringement by the defendants herein.
7. The respondents claim that the appellants/defendants are engaging in competing with the business of the respondents/plaintiffs and also publish, sell and distribute on and through their websites, i.e, www lexisnexis. Com. and on C.D Rom/DVD etcs., judgment pronounced by the various Courts of India including by Hon'ble the Supreme Court of India. In doing so they have openly infringed and are continuously infringing the copyrights of the respondents/plaintiffs vesting in Supreme Court Cases without any licence granted to any of them by the plaintiffs. They have produced and are also reproducing the said work and making adaptations thereof in a material form including storing it by electronic means on CD-Roms, DVDs, floppy drives etc. as well as in their databases available on their websites through online and internet services and by making and issuing infringing copies/adaptations of the work to the public for sale and/or hire by way of trade of the said infringing copies/adaptations of the work, the exclusive right to do which vests in the plaintiffs alone under Section 14 of the Copyright Act, 1957. In this manner the respondents/plaintiffs submitted before the trial court that the appellants/defendants have infringed and are continuously infringing the copy right of the plaintiffs in the work within the meaning of Section 51 of the Copyright Act, 1957.
8. The appellants/defendants filed counter affidavit to the application moved under Order 39 Rule 1 and 2 C.P.C and submitted therein that the suit itself is not maintainable on the various grounds. Appellants/defendants submissions are quoted hereunder;
“2. That before giving a para wise reply to the Application Under Order 39 Rule 1 and 2 read with Section 55 of the Copyright Act, 1957, (The Copyright Act), it is submitted that the aforesaid suit is not maintainable and is also bad for misjoinder of parties. Save for the defendant no. 1, no other person or body, much less than defendant no. 2 is a necessary party. Moreover, besides the defendant no. 1, no allegation has been made against the defendant no. 2, which needless to say is a division of defendant no. 1 and has no independent legal entity. The defendant no. 2 has been arrayed with sole objective of indulging in adverse publicity to malign and cause harm to the defendants. It has already been brought on record that the plaintiffs have indulged in deliberate misreporting of the ex parte ad interim injunction order dated 22.9.2012, on account of which, the answering defendant has suffered colossal business losses and also loss of reputation. Appropriate proceedings shall be instituted by the answering defendant against the plaintiffs as may be advised for prosecution for determination and damages.
9. That the suit is not maintainable; and as the main relief cannot be granted, the application under reply is to be dismissed outright. The plaint does not disclose any cause of action and the reliefs as prayed are grossly undervalued. Above all the suit is barred by time and also under the provisions of the Copyright Act. No case has been made out for grant of any relief and the allegation of infringement of copyright is wrong. The basis for filing the suit has been indicated as the rendering of judgment by the Hon'ble Supreme Court in the Eastern book Compnay v. D.B Modak. The said judgment wa rendered on 12.12.2007 and is reported in (2008) 1 SCC 1 whereas nothing has been indicated as to how the answering defendant has violated the mandate contained in the said judgment.
10. That from a meaningful reading of the plaint it would be noticed that not a single instance has been pointed out by the plaintiffs as to how and in what manner the direction contained in Modka's case has been violated by answering defendant. It is reiterated that no cause of action has accrued for filing the suit which has been instituted with ulterior motives and vexatious intentions. This stands substantiated by the fact that the plaintiffs started a tirade against the defendants for with the malafide intention of maligning them by way of adverse publicity in the media and continue to do so despite the orders dated 3.10.2012 having being passed by this Hon'ble Court restraining the plaintiffs from making any publicity in electronic and print media.
11. That it is apparent that the plaintiffs are facing difficulty in competing with established publishers and reporters of legal judgments (such as the answering defendants) and have consequently taken recourse to filing of the aforesaid frivolous suit; and then to making unwarranted and adverse publicity; and to achieve indirectly what cannot be directly achieved. As submitted above, the plaintiffs have pre-empted the relief which is yet to be granted by this Hon'ble Court. Even without any determination having being made regarding any infringement of the plaintiffs' copyright, it has been projected in the electronic and print media by and on behalf of the plaintiffs that the defendants have been found guilty of infringing the plaintiffs' copyright.
12. That the plaintiffs have not approached this Hon'ble Court with clean hands. The real purpose of the present suit is to give vent to business rivalry and to show down the answering defendants and to create impediments in the defendants' business activities. Fraud and justice to not dwell together and consequently in view of all what has come to the force, it is apparent that the plaintiffs have taken recourse to unethical practice and played fraud upon this Hon'ble Court and are consequently not entitled to maintain the aforesaid suit.”
13. On merit they made their submission in the manner that Court order are available through various sources. While most of the judgments are procured from the Registry of the Hon'ble Supreme Court, the remaining are sourced from other websites and journals including the website of the Judicial Information System more popularly known as “JUDIS” having the web address; www.judis.nic.in. The said website has been launched by the National Information Centre of the Department of Electronics and Information Technology and Information Technology, falling under the Ministry of Information and Technology of the Government of India. The website is easily accessible to all and the information available falls within the public domain. Consequently, no question of infringement of Copyright Act arises.
14. The appellants/defendants also submitted that the respondents/plaintiffs have failed to cite even a single instance where the defendants can even remotely be held as having violated the law laid down in Modak's case rather the defendants complained that the plaintiffs themselves have copied the judgments from JUDIS. The appellants/defendants further submitted that there can be no Copyright in the words” Concurring”, “partly concurring”, “Dissenting”, supplementing etc. Since these are generic words commonly used in legal parlance, such inserted characterization of judges' opinion is merely factual, typical and incidental to the reporting of the judgments. Such insertions are garden-variety and absolutely devoid of any modicum of creativity and as such it clearly does not quality the test of minimum creativity. Therefore, they submitted that no copyright subsists in the use of such generic words by the plaintiffs.
15. Appellants/defendants further submitted that judgments published by the plaintiffs are nothing but a verbatim reproduction of the judgments as are reported by the JUDIS. Thus, the appellants/defendants themselves questioned the authority of the respondents/plaintiffs claiming copyright over the judgment.
16. The appellants further submitted that besides the official website JUDIS, there are other websites and law reporters such as Manupatra, Judgments Today etc, which regularly reproduce and publish the judgments of the Supreme Court and various High Courts. Theses websits and Journals provide a source for procuring the judgments which after their publication come within the public domain.
17. On this back drop appellants/defendants submitted that the plaintiffs' reliance on the test of minimum creativity as laid down in D.B Modak's case as well as their claim of copyright in respect of paragraphing para numbering and inserted characterization of Judges' opinion as concurring, dissenting are wholly misplaced as they are merely factual consisting of garden variety and absolutely devoid of any modicum of creativity, hence no copyright can subsists in the same.
18. After considering the submissions of the respondents/plaintiffs as well well as appellants/defendants the learned trial court concluded his opinion on the application for temporary injunction as under;
“I have carefully considered the arguments of learned counsel for both the parties in this regard. I have already observed in preceding paragraphs that Hon'ble the Supreme Court has been pleased to hold that in cases of infringement either of trade mark or of copyright, normally an injunction must follow and permitting the defendants to carry on business by copyright infringement would in fact be putting a seal of approval of the Court on dishonest, illegal and clandestine conduct of the defendants. While granting ad interim injunction, I have carefully considered the existence of prima facie case, balance of convenience and danger of irreparable injury.”
19. The order, passed by the trial court is under challenged in the instant appeal before this Court.
20. Mr. Prashant Chandra, learned Senior Advocate, appearing for the appellant stated that the appellants' act in copying the Supreme Court decisions from the website, JUDIS or other websites are the acts which are saved under the Copyright Act be said to be infringement of copy right. He drew the attention of this Court towards Section 52 of the Act, the relevant part of which is extracted below;
“52. Certain acts not to be infringement of copyright
(1) The following acts shall not constitute an infringement of copyright, namely,
(a)....................
(q) The reproduction of publication of
(I)...................
(iv) any judgment or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority, as the case may be.”
21. He submitted that the appellants have copied the decisions from the websites other than the respondents which is not prohibited by the Court, Tribunal or any judicial authority. Therefore, its act is saved to be covered under the term ‘infringement’ Copyright under Section 52 of the Act. He emphasized his argument over sub-section 1(iv) of Section 52 which speaks that the following acts shall not constitute an infringement of copy right, namely, any judgment or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority as the case may be. Since the judgments copied by the appellants have already been in circulation, published by JUDIS, MLJ, CDJ and other journals, the respondents cannot claim their copyright over it rather it can be termed their acquiescence in such publication.
22. So far as the observations of learned trial court regarding indirect infringement of the copyright is concerned, it is stated that the respondents had not alleged so in the plaint. He further stated that the respondents have claimed production of the judgment of Hon'ble the Supreme Court in the case of D.B Modak, claiming it a judgment in rem whereas it is not so rather it is a judgment in personam and its application is confined only to the parties of the respective judgment. Moreover, the question whether the judgment is in rem or in personam is open for consideration of the trial court at the stage of conclusion of the trial, therefore, at this stage we refrain ourselves to enter into this question to decide it.
23. On the matter of grant of temporary injunction he further submitted thatfor grant of temporary injunction the plaintiff was under duty to establish the availability of following ingredients in the matter to consider the application for temporary injunction;
(I) Prima facie case;
(II) Balance of convenience;
(III) Irreparable loss
24. Whereas in the instant case none of the ingredients is available with the respondents to claim the temporary injunction as they have not been able to establish so.
25. Per contra Mr. Sudeep Seth, learned counsel for the respondents submitted that Hon'ble the Supreme Court in the Modak's case (Supra) has recognized the respondents'/plaintiffs' copy right in six inputs put in by the plaintiffs in S.C.C, namely,
(I) Paragraphing/para numbering;
(II) internal referencing;
(III) concurring, dissenting, partly concurring, partly dissenting, supplementing etc.
(IV) Editorial notes;
(V) Footnotes and
(VI) Head notes.
26. He stated that the appellants/defendants are neither engaged in publishing the Supreme Court Judgments in print media nor are they empanelled with Supreme Court to receive raw text of Supreme Court Judgments. He further stated that the appellants/defendants have infringed all the aforesaid copyrights except head notes by copying through scanning the entire set of SCC volumes and have created a database on their website which they are selling by the name of Lexis Nexis India, He further stated that the judgment of D.B Modak's case is a judgment in rem as the Hon'ble Supreme Court has held in paragraph 62 of the judgment. Hon'ble Supreme Court in the case of D.B Modak has adopted and enunciated the Indian-Canadian test of “skill and judgment with flavour of creativity” Thus, he submits that the trial court has followed correctly the judgment of Hon'ble the Supreme Court. Therefore, there is no infirmity in the order, passed by him on the application for temporary injunction.
27. Learned counsel for the respective parties also cited certain case laws on the scope of Section 52 of the Copyright Act as also the cases discussing what is the judgment in rem and judgment in personam as well as on the scope of Article 141 of the Constitution of India. However, since we are at the interim stage, we feel it appropriate to examine the facts of the present case in the contest of the law propounded by Hon'ble Supreme Court in the case of D.B Modak only to examine the correctness of order impugned as the respondents/plaintiffs claim that the appellants/defendants have no right to claim protection in publication of the judgment under Section 52 of the Copyright Act.
28. In the Modak's case Hon'ble the Supreme Court determined two following questions;
“(i) What shall be the standard of originality in the copy-edited judgments of the Supreme Court which is a derivative work and what would be required in a derivative work to work to teat it the original work of an author and thereby giving a protected right under the Copyright Act, 1957 to author of the derivative work?
(ii) Whether the entire version of the copy-edited text of judgments published in the appellants' law report SCC would be entitled for a copyright as an original literary work, the copy edited judgments having been claimed as a result of inextricable and inseparable admixture of the copy editing inputs and the raw text, taken together, as a result of insertion of all SCC copy editing inputs into the raw text, or whether the appellants would be entitled to the copyright in some of the inputs which have been put in the raw text?”
29. In this case the copyright of the respondents in publication of their journals “SCC” have been considered by Hon'ble the Supreme Court. In the said case to claim a Copyright Act Hon'ble the Supreme Court has discussed the minimum requirement of creativity and held that to claim a copyright some amount of creativity in the work is required. It does require a minimal degree of creativity. It further held that to support the copy right there must be some substantive variation and not merely a trivial variation, not the variation of the type where limited ways/unique of expression are available and an author selects one of them which can be said to be a garden variety.
30. Paragraphs 60, 61 and 62 of the aforesaid case (Eastern Book Company v. D.B Modak (2008) 1 SCC 1) are extracted below;
60. Although for establishing a copyright, the creativity standard applies is not that some must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. It does require a minimal degree of creativity. Arrangement of the facts or data or the case law is already included in the judgment of the Court. Therefore, creativity of SCC would only be addition of certain facts or material already published, case law published in another law report and its own arrangement and presentation of the judgment of the Court in its own style to make it more user-friendly. The selection and arrangement can be viewed as typical and at best result of the labour, skill and investment of capital lacking even minimal creativity. It does not as a whole display sufficient originality so as to amount to an original work of the author. To support copyright, there must be some substantive variation and not merely a trivial variation, not the variation of the type where limited ways/unique of expression are available and an author selects one of them which can be said to be a garden variety. Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity. In our view, the aforesaid inputs put by the appellants in the copy-edited judgments do not touch the standard of creativity required for the copyright.
61. However, the inputs put in the original text by the appellants in (i) segregating the existing paragraphs in the original text by breaking them into separate paragraphs : (ii) adding internal paragraph numbering to the multiple judgments; and (iii) indicating in the judgement the judges who have dissented or concurred by introducing then phrases like “concurring”, “partly concurring”, “partly dissenting”, “dissenting”, “supplementing”, “majority expressing no opinion”, etc; have to be viewed in a different light. The task of paragraph numbering and internal referencing requires skill and judgment in great measure. The editor who inserts para numbering must know how legal argumentation and legal discourse is conducted and how a judgment of a court of law must read. Often legal arguments or conclusions are either clubbed into one paragraph in the original judgment or parts of the same argument are given in separate paragraphs. It requires judgment and the capacity for discernment for determining whether to carve out a separate paragraph from an existing paragraph in the original judgement or to club together separate paragraphs in the original judgment of the Court. Setting of paragraphs by the appellant of their own in the judgment entailed the exercise of the brain work, reading and understanding of subject of disputes, different issues involved, statutory provisions applicable and interpretation of of the same and then dividing them in different paragraphs so that chain of thoughts and process of statement of facts and the application of law relevant to the topic discussed is not disturbed, would require full understand of the entire subject of the judgment. Making paragraphs in a judgment could not be called a mechanical process. It requires careful consideration, discernment and choice and thus it can be called as a work of an author. Creation of paragraphs would obviously require extensive reading, careful study of subject and the exercise of judgment to make paragraph which has dealt with particular aspect of the case, and separating intermixing of a different subject. Creation of paragraphs by separating them from the passage would require knowledge, sound judgment and legal skill. In our opinion, this exercise and creation thereof has a flavour of minimum amount of creativity.
62. The said principle would also apply when the editor has put an input whereby different Judges' opinion has been shown to have been dissenting or partly dissenting or concurring, etc. It also requires reading of the whole judgment and understanding the questions involved and thereafter finding out whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and partially agreeing to the view on a particular law point or even on facts. In these inputs put in by the appellant in the judgments reported in SCC, the appellants have a copyright and nobody is permitted to utilize the same.”
31. In the light of the aforesaid judgment, we arrive at conclusion that the exercise and creation of minimum amount of creativity has to be viewed in the context of journals to journals published by the parties and in order to examine it several facts have to be considered by the trial court in the light of the evidences adduced by the parties during the course of the trial. Therefore, keeping in view the ingredients which are necessary to examine the case for the purpose of temporary injunction, we are of the view that at this stage the respondents/plaintiffs had prima facie case in their favour to issue temporary injunction against the appellants/defendants so that skill applied by their editor in editing the journals should not be misused by the appellants/defendants. Thus, we are of the definite opinion that the learned trial court has correctly appreciated the application for temporary injunction filed by the respondents/plaintiffs and allowed it which do not require interference by this Court.
32. However, the appellants are permitted to publish, sell and distribute through their websites and C.D.Rom/DVD the judgments pronounced by the Hon'ble Supreme Court and other Courts but along with their head notes and editorial notes with all precautions as has been cautioned by the Hon'ble Supreme Court in Modak's case (supra).
33. With the aforesaid view, the appeal is dismissed.
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