IN THE HIGH COURT OF JUDICATURE AT MADRAS.
Dated : 27.07.2009.
CORAM
THE HONOURABLE MR.JUSTICE K. CHANDRU
O.A. NO. 940 OF 2008
IN
C.S. NO. 814 OF 2008.
The Periyar Self Respect
Propaganda Institution,
Rep. By its Secretary
Thiru.K. Veeramani,
No. 50. EVK Sampath Road,
Veppery,
Chennai 600 007. .. Applicant/ Plaintiff.
/VS/
| 1 | Periyar Dravidar Kazhagam rep.By its President T.S. Mani, Office No. 1 Kamarajar Salai, Mylapore, Chennai 600 004. |
| |
| 2. | K. Ramakrishnan, General Secretary, Periyar Dravidar Kazhagam, No. 1. Kamarajar Salai, Mylapore, Chennai 600 004. |
..
|
Respondents / Defendants.
|
O.A. No. 940 of 2008 has been preferred seeking an order of ad interim injunction restraining the respondents, their men, agents, assignees or any other person or person claiming through them from in any manner infringing the copyrights of the plaintiff relating to the Kudiyarasu and other scripts, books, publications, pending disposal of the suit.
For Applicant .. Mr. A. Thiagarajan, SC
for MR D. Veerasekaran.
For Respondents .. Mr. S. Doraisamy, SC
for V. Elangoven for R1
Mrs. Gladys Danier for R2
ORDER
Whether re-publication of the works of E.V.Ramasamy (Popularly called as Periyar) by the respondents will amount to infringement of copyright of the plaintiff Association represented by its Secretary Mr. K. Veeramani and whether they are entitled to get a temporary injunction against the respondents are the issues involved in this application.
2. Before dealing with the application, it is necessary to briefly set out the circumstances, under which the issue came to this Court and the role played by Periyar in this Country. Periyar who started the newspaper “Kudiyarasu” published various articles, write ups and various things including political economical and social things.
3. Periyar is the founder of the Plaintiff society was once an active leader of the Indian National Congress during the colonial days. He broke ranks with Congress in November 1925 when two of his resolutions favouring ‘communal representation’ for non-Brahmins were disallowed in the Kancheepuram conference of the Tamil Nadu congress committee, Thereafter he declared his political credo to be ‘no god, no religion, no Gandhi, no Congress, and no Brahmins’. Foretelling his future politics, this credo fused Hinduism, Brahminism, and nationalism as interwoven themes for critique. He founded the Self-Respect Movement in 1926 with the Primary objective of advancing a rationalist critique of caste, religion, and mainstream nationalism. (see : “Kudi Arasu”, 2 May 1925 ; see also, “Puratchi”, 24 December 1933).
4. In forging a new public which brought together the realm of the everyday and the politics of inferiorized identities, the movement consciously employed a torrent of printed and spoken words. In 1925 Periyar started a Journal, Kudi Arasu (People’s Rule), which was followed in 1928 by Revolt. During the 1930s the colonial governments, suspecting periyar of propagating communism, targeted his Journals. Periyar and his sister kannammal were arrested on December 1933 on charges of sedition for an article published inKudi Arasu. Periyar’s refusal to furnish security led to its banning. But he substituted the banned journal with Puratchi (Revolution). E.V.Krishnasamy, his brother, was then arrested on sedition charges on 2 June 1934 for an article published in Puratchi. The latter was then replaced by Pagutharivu (Rationalism) on 26 August 1934. (See : B.S. Chandrababu, social protest and Its impact in Tamilnadu Madras, Emerald publishers, 1993, pp 49-54).
5. The publications of the movement were priced cheap, printed on inexpensive paper, and often distributed free. In a letter written to his Salvite fellow travellor E.M. Subramania Pillai in 1947, Periyar wrote : My Publications are priced very low. There is no orderly sale. Most of them are (distributed) free. Therefore it is difficult to work within a business framework. (See : E.S. Muthusamy, Tamil perumpullavar E.M. Subramania Pillai (Chennai : Paarai Nilayam, 1984), P.32)
6. A division Bench of this Court vide its judgment in T.Kannan Vs. Liberty creations Ltd., rep. By its Producer cum-Director, Gnanarajasekaran, Chennai and othersreported in (2007) 2 MLJ 1015 made a glowing tribute to contribution of Periyar. The following passage found in para 7 may be usefully extract below :-
“ 7….. Throughout his life, Periyar E.V. Ramasamy, worked for the removal of untouchability, eradication of caste system, upholding of the rights of women as a crusader of Social Justice and spreading of rationalism, self-respect and social revolution. Being a rationalist he exhorted people to imbibe scientific temper and to give up blind beliefs and superstitious practices that were wasteful and harmful. In 1926, he founded the Self-Respect Movement. He believed that religion continues to be vicious system for perpetuation a priestly class or in rationalistic parlance, a Brahminical hegemony and to keep the ignorant masses in fear of God. Hence, he became a crusader against God and religiosity ………….”
7. The first respondent’s President had left the plaintiff association by tendering resignation on 14.09.2000. The second respondent was expelled from the plaintiff association on 8.7.1987. After leaving the Plaintiff Association they started a new association, namely Periyar Dravidar Kazhagam (R1).
8. The Cause of action for filing the suit by the plaintiff arose when a “Kumudam” reporter, a bi-weekly, in its issue, dated 21.08.2008 published an interview given by the second respondent in which it is stated that the Secretary of the Plaintiff association never compiled the issues of “Kudiyarasu” for the last 26 years. Therefore, they had obtained copies from the Thanjai Paghtharivu Kazhagam and were intending to publish the same. Hence the present suit was filed for the relief of a permanent injunction, restraining the respondents / defendants in any manner infringing the copyrights of the plaintiff relating to Kudiyarasu and other scripts, books, publications etc and for awarding of damages for Rs.15 Lakhs.
9. The suit was presented before this Court and was admitted on 27.08.2008. Along with the suit, the present application was filed for the grant of a temporary injunction restraining the respondents from infringing the copyright of the applicant / plaintiff relating to Kudiyarasu and other scripts, books and publication pending disposal of the suit. A caveat was entered into by the respondents.
10. This Court on 28.08.2008 granted a status quo against the first respondent, subsequently, the status quo order was granted against the second respondent by a further order, dated 01.09.2008. In the meanwhile, both the respondents have filed counter affidavits, dated 08.09.2008, to which the applicant had filed a reply affidavit dated 13.09.2008.
11. The Plaintiff / applicant contended that the plaintiff association was formed as a society registered under the Societies Registration Act, 1960 with Registration No. 13/1952. One of the object of the Association was set out in para 2 of the memorandum of association. As per para 2(a) (i), it is for the diffusion of useful knowledge of political education. It was also stated that the further object under para 2(b) is for bringing out newspapers, periodicals and for publishing books and pamphlets and circulating the same. In order to help the activities of the Society and to provide for its income, it was resolved to establish a printing press for publishing and selling books relating to the aims and principles of the institution.
12. The registration of the Society is evident from the Certificate of Registration and it was registered on 23rd September 1952 and the rules and regulations for the said society were also framed. Rules 2 and 3 reads as follows :-
“2 .The work of the Institution will be Carried on by utilizing :-
a. The income derived from the capital set apart.
b. The income derived from the rent of the house property gifted to the Institution.
c. The income derived from the press and other immovables of the Institution.
d. The income, if any, derived from the sale of books and Newspapers and periodicals etc., &
e. Donations and subscriptions received from the public.
3. The capital of the properties endowed to the Institution should on no account be utilized for any purpose.
13. The composition of the society as well as the ownership of the properties are dealt with under Rules 22 and 23 which are as follows:-
“22. The Life – Members of the Executive Committee alone shall be the trustees of the properties already purchased by Periyar E.V. Ramasamy, President of the Institution, in his name as President of the Self-Respect Association and in his personal name, for the Self-Respect Association out of its funds and also the properties already purchased by Life-members of the Executive Committee of the Institution (1) Mrs.E.V.R.Mani (2) Mr.T.P.Vedachalam (3) Mr. A.N. Narasimhan and (4) Mr.E. Thirunavukarasu on behalf of the Dravida Self-Respect Institution and the properties to be acquired hereafter for the Institution.
23. The Properties of the Institution shall be in the names of the President and the Secretary and they shall have power to purchase and sell properties on behalf of the Institution and the properties should be incharge of and in custody of the Secretary.”
14. Subsequent to the formation of the Society in the year, 1952, the said Society became a deemed society in terms of Section 4(2) of the Tamil Nadu Societies Registration Act, 1975. Under 1860 Act, the Properties (both movable and immovable) belonged to the Society and if not vested in the trustees, shall be deemed to be vested for the time being on the governed body of the said society. Under 1975 Act, a similar provision is found in Section of the Act.
15. It was claimed that since Periyar himself had found the society and endowed the property with the plaintiff society, all his writings appeared in the Kudiyarasu newspaper started from the year 1926, will vest with the society. The society is entitled to enforce its right of copyright over such writings. Since respondents are attempting to infringe the plaintiff’s right, the present suit came to be filed.
16. It was also argued that the respondents have no right to deal with such properties being a stranger of the society. By Placing reliance upon a resolution dated 02.05.1983, Thanjai Pagatharivalar Kazhegam has undertaken the compilation of all the works of Periyar from the old issues of Kudiyarasu, Pagutharivu and Puratchi on the basis of year-wise and subject wise and it is this compilation (a copy of which was procured by the respondents), which is sought to be republished, thereby infringing the copyright of the plaintiff.
17. It was also stated that in the first respondent association’s weekly newspaper called as “Puratchi Periyar Muzhakkam, dated 31.07.2008, an advertisement had appeared offering pre-publication scheme. The said advertisement found in page 4 of the weekly, it was stated that Periyar’s writings, speeches published in Kudiyarasu from the year 1925 to 1938 are to be published. Already there volumes have been published. With new annexures, 27 volumes are to be published on the occasion of the birthday of Periyar falling on 17, September. The pre-publication concession offer sale was also made and the intending purchasers were requested to register on or before 31.08.2008. Followed by this advertisement, on 21.08.2008, an interview was given by the second respondent which was appeared in the bi-weekly Kumudam Reporter.
18. It is now claimed that Periyar had copyright over his writings and certain correspondence were shown that some publishers had asked for permission to publish his writings. Certain other documents were also enclosed to show the details of publications done by the plaintiff society as well as number of books purchased by the State Government for distribution in Public libraries. It was also stated that the plaintiff society themselves have brought out the old issues of Kudiyarasu in the form of three compact discs (CD) covering the period from April 1928 to 1931. Therefore, they have a continuous right over its usage being the owner of the copyright. It was therefore prayed that the injunction should be continued pending the suit.
19. In response, the respondents have filed a detailed counter affidavit along with supporting documents. The first respondent association stated that the plaintiff cannot claim any copyright as Periyar never assigned his copyright in favour of any one. In 1952, the society was formed only for managing the immovable property owned by Periyar, since Periyar wanted to divest his legal heirs from succeeding to his estate. It was also stated that V.Anaimuthu, a trusted disciple of periyar, as early as in the year 1972-1973 had collected the works of Periyar in the form of three volumes running into 2500 pages. Those volumes were released in a grand function during 1974, in which the Secretary of the plaintiff society had participated and the function was held in the presence of the Chief Minister of Tamilnadu. It was also stated that the memorandum of association never provides for transfer of any ownership of Periyar writings and they are available to public domain.
20. It was further stated that the publication of Kudiyarasu was done in the name of various individuals and only for a very short period, Periyar was its Printer and publisher. Most of the times, he was its Editor. His first wife, his sister and brother were its publishers for different periods. Thereafter, the publishing right went out of the family. He also ceased to be the Editor of the said newspaper. The allegation that only the Thanjai Pagutharivalar Kazhagam was in possession of original issues and that a copy of it was obtained from them to be published by the respondents was denied. It was stated that the original issues of the work was available in several libraries, individuals, They include the National Archives, New Delhi, Delhi University Library, New Delhi, Connemara Public Library, Chennai, etc., A List of 31 places where those issues were collected was listed in the two counter affidavits.
21. It was further stated that the followers of Periyar are entitled to publish his articles and write ups. The first respondent association was formed to propagate the ideology of Periyar. The writings of periyar should be crated as National treasure and the claim of the Plaintiff society of its ownership cannot be allowed as there are no proof for such ownership. Periyar during his life time never granted assignment in favour of any one. There is nothing in the memorandum of association or rules and regulations that such writings of periyar have been bequeathed to the plaintiff society. As a matter of fact, periyar died intestate.
22. It was also stated that periyar never appointed any political heir for his mission. For that purpose, the respondents relied upon an interview, which appeared shortly before Periyar’s death in Malai Murasu, an eveninger , dated 16.09.1973. In that interview for a question as to who was his political heir, he replied that he did not have any political heir. The heirs are only his policies and ideas. Further, an heir cannot be groomed, but must evolve by himself. The second respondent also filed a counter affidavit more or less on the same line.
23. With reference to their attempt to publish the present compilation, it was stated that the issues of Kudiyarasu were collected from various libraries. The attempt of the first respondent is to publish the writings of Periyar so that his ideology can be spread far and wide. It was also stated that there is no copyright in newspaper articles, since Periyar wrote in his newspapers his views on topics covering social, political and religious themes. The allegation that the second respondent has surreptitiously obtained the copies of literary works of periyar was denied.
24. The applicant has filed a reply affidavit, controverting the averments. With reference to the ownership of the copyright, in paragraph 5 of the reply affidavit, it was asserted as follows:-
5….As far as the ownership of copyright is concerned, I submit that as per sec 3 of the Indian Copyright Act 1914 r/w the 1st Schedule, the ownership of the copy right would devolve on the legal personal representative as part of his estate. I submit that the applicant has succeeded to all the estates of Late Thanthai Periyar. Therefore,the estate developed on the applicant. I submit that late Thanthai Periyar was publishing his writings in the Kudi Arasu and continued to be the owner even after the same was changed to Tamizhan Padipagam. It is pertinent to point out that the other editors are Periyar, his wife, his brother and brother in law. Periyar was the owner of the copyright , owner of the Kudi Arasu and also on editor……
(Emphasis added)
It is based upon this ownership, the applicant society is claiming copyright over the writings of Periyar in Kudiyarasu.
25. An application was filed by Thanjai Pagutharivalar Kazhagam in A.No. 4331/2008 to implead themselves in the suit as party defendant on the ground that compilation of Kudiyarasu issues were made by that Kazhagam, as averred in the plaint and as spoken to by the second respondent in an interview given to Kumudam Reporter. That application came to be dismissed by this Court on 29.01.2009. In paragraph 8 of the order, it was observed as follows :-
“ 8...The issue before the court is who is the copyright owner of the work of Thanthai Periyar. The applicant does not claim exclusive copyright over the work of Thanthai Periyar. It is his case that he assisted in the Herculean task of compiling the work of Thanthai Periyar.”
26. Mr. A. Thiagarajan, learned Senior Counsel leading Mr.D.Veerasekaran, learned Counsel, contended alternatively that there is a copyright not only in respect of the originals, but also there is copyright protection in a derivative literary works created from the pre-existing material in the public domain. Since the compilation commissioned by the Plaintiff society was stealthily taken by the respondents, there is a prima facie case for grant of injunction. He also placed reliance upon certain passages from the judgement of the Supreme Court in Eastern Book Company and others Vs. D.B. Modak and another reported in (2008) 1 SCC 1 for this propositor.
27. The learned Senior Counsel also submitted that there need not be any particular mode of assignment and that could be gathered or inferred from the materials produced. When periyar himself started the society and was its life time president, there is no further proof required with regard to the ownership of Kudiyarasu issues. A combined reading of the memorandum of association and the rules and regulations will show that the property was endowed to the Society and the Society is the owner. It was also stated that the issues of Kudiyarasu has been released in the form of Compact Discs by the plaintiff society Therefore, they are the owners. He also submitted that in terms of section 17 (a) of the copy Right Act 1957, the ownership vests with the Author and in the absence of same, the proprietor of the newspaper. Most of the times, the publishers of the newspapers were the near relatives of Periyar. Since, section 55 of the copy right Act provides for civil remedies against infringement of copyright, the suit has been filed and they are entitled for an interim order.
28. Section 55 of the copy Right Act, 1957 reads as follows :-
55. Civil remedies for infringement of copyright :- (1) Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right:
Provided that if the defendant proves that at the date of the infringement he was not ware and had no reasonable ground for believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the Court may in the circumstances deem reasonable.
29. Per Contra, Mr. S. Duraisamy, learned Counsel for R1 supported by Mrs. Gladys Danier, learned counsel for R-2 contended that no person is entitled for copyright except in accordance with the provisions of the copy right Act, 1957. He made reference the section 16 of the copy Right Act, 1957 as follows:-
16. No copyright except as provided in this Act:- No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise then under and in accordance with the provisions of this Act or of any other law for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence.”
30. He also submitted that section 18 of the Copyright provides for specific assignment and in the present case, there is no such assignment in writing in favour of the plaintiff.
31. This argument can be rejected since a Division Bench of this Court vide its judgement in Srimagal and Co. VS. Books (India) Pvt. Ltd., and others reported in AIR 1973 MADRAS 49 negatived such contention. Paragraph 2 of the said judgement can be usefully extracted below :-
“2……………… The learned Judge held that no particular form of assignment under S. 19 was required and it would suffice if the assignment culled out in writing from some document and that the assignment had been authorised by the author is evident from his signature or that of his authorised agent. We do not think that there is any substance on the point based on Section 19.
……
…. In our view, the requirement of Section 19 is fully satisfied by this document. That section requires no doubt that an assignment to be valid should be in writing signed by the assignor or by his authorised agent. The argument is that the assignment in its origin should be in writing signed by the author or by his authorised agent. We do not think that is indicated by the section. The only requirement is that the assignment should be in writing signed by the assignor or by his duly authorised agent. If the assignment appears from any document and it is signed by the assignor or by his authorized agent the statutory requirement is fulfilled.”
32. Thereafter, the learned counsel submitted that the Act itself provides certain acts were held not to be an infringement of copyright. He placed reliance upon Section 52 (1) (m) of the act, which reads as follows:-
52. Certain acts not to be infringement of copyright :- (1) The following acts shall not constitute an infringement of copyright, namely :-
…….
(m) the reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction;
(Emphasis added)
Therefore, he placed a strong reliance upon the said provision and pleaded for the dismissal of the application.
33. In the light of the rival contentions, it has to be seen that whether any case is made out to continue the interim order.
34. It is no doubt true that the over all owner of the copyright. has a right to akin to the right to property, but at the same time, in a work if made public than it should be made available subject to a reasonable form. The Supreme Court in its judgment in Entertainment Network (India) Limited Vs. Super Cassette Industries Limited reported in(2008) 13 SCC 30 has held in paragraphs 118 and 124 as follows :-
“118. An owner of a copyright indisputably has a right akin to the right to property. It is also a human right. Now, human rights have started gaining a multifaceted approach. Property rights Vis-à-vis individuals are also incorporated within the “multiversity” of human rights. As, for example, any claim of adverse possession has to be read in consonance with human rights. The activist approach of the European Court of Human Rights is quite visible from the Judgment of Beaulance properties Ltd., V. Palmer and JA Pye (Oxford) Ltd., V. Graham.
“124. The right as property, therefore , is not dealt with its subject to restrict when a right to property creates a monopoly to which public must have access. Withholding the same from public may amount to unfair trade practice. In our constitutional scheme of statute monopoly is not encouraged. Knowledge must be allowed to be disseminated. An artistic work if made public should be made available subject of course to reasonable terms and grant of reasonable compensation to the public at large.”
(Emphasis added)
35. The grant of injunction is also an equitable relief and such relief can be granted only subject to statutory limitation and the Courts will also have to keep in mind the exemptions provided under Section 52 of the Copy Right Act. In this context, the Supreme Court in Academy of General Education, Manipal and another Vs. B. Malini Mallya reported in (2009) 4 SCC 256 has held as follows :-
"35 Decree for injunction is an equitable relief. The courts while passing a decree for permanent injunction would avoid multiplicity of proceedings. The court while passing such a decree, is obligated to consider the statutory provisions governing the same. For the said purpose, it must be noticed as to what is a copyright and in respect of the matters the same cannot be claimed or otherwise the same is lodged by conditions and subject to statutory. limitation.”
………
39. Section 52 of the Act provides for certain acts which would not constitute an infringement of copyright. When a fair dealing is made, inter alia, of a literary or dramatic work for the purpose of private author of these articles and that he also assigned it in favour of the plaintiff.”
38. The compilatons made by Thanjai Pagutharivu Kazhagam for all the old issues of Kudiyarasu cannot create any copy right in favour of the plaintiff society, though it might have taken substantial work in compiling the same. In fact, the Supreme Court had discarded "Swear of the brow" notion of copyright law. There may be novelty or invention in arranging the same as subject wise or chronological order. But in the present, case, there is no material to show that the respondents have taken away such compilation and had verbatim reproduced the same. On the contrary, the respondents have pointed out the earlier publication of three volumes of Kudiyarasu issues by V. Anaimuthu and their intention was to publish the balance in 27 volumes. They have also asserted that the original issues of Kudiyarasu is available all over the World. They had pointed out atleast 31 places where it is still available.
39. The allegation that they had taken the copies from Thanjai Pagutharivalar Kazhagam has been emphatically denied. Even otherwise, unless it is shown that they intend to reproduce pre-existing works, an order of injunction cannot be granted on the basis of apprehension and unsubstantiated allegations.
40. Since both sides referred to the decision or the supreme court in Eastern Book Company and others Vs. D.B. Modak and another reported in (2008) 1 SCC 1, it is necessary to extract certain passages which are relevant to decide the present case. The following passages found in paragraphs 28, 40, 52 and 60 may be usefully extracted below :-
“28. In many cases, a work is derived from an existing work. Whether in such a derivative work, a new copyright work is created, will depend on various factors, and would one of them be only skill, capital and labour expended upon it to qualify for copyright protection in a derivative literary work created from the pre-existing material in the public domain, and the required exercise of independent skill, labour and capital in its creation by the author would qualify him for the copyright protection in the derivative work ? or would it be the creativity in a derivative work in which the final position will depend upon the amount and value of the corrections and improvements, the independent skill and labour, and the creativity in the end product is such as to create a new copyright work to make the creator of the derivative work the author of it ; and if not there will be no new copyright work and then the original author will remain the author of the original work and the creator of the derivative work will have been the author of the alterations or the inputs, put therein, for their nature will not have been such as to attract the protection under the law of copyright.
40... The Court further clarified that where there is a “Common source”, the person relying on it must prove that he actually went to the common source from where he borrowed, employing his own skill, labour and brains and that he did not merely copy.
52. In Key Publications, INC. V Chinatown Today publishing Enterprises, Inc., Kew Publications, published an annual classified business directory for New York City’s Chinese – American community. In 1990, Galore Publication published Galore director, a classified directory for the New York Chinese-American Community. Key brought a suit against Galore Director Charging that Galore Directory infringed key’s copyright in the 1989-1990 Key Directory. The United States Court of Appeal held that individual components of compilation are generally within the public domain and thus available for public. There are three requirements for a compilation to qualify for copyright protection: (1) the collection and assembly of pre-existing data ; (2) selection, coordination or arrangement of the data ; and (3) the resulting work that comes into being is original, by virtue of the selection, coordination of arrangement of the data contained in the work. For originality, the work is not required to contain novelty. The doctrine of “Sweat of the brow”, rewarded compilers for their efforts in collecting facts with a de facto copyright to those facts and this doctrine would prevent , preclude the author absolutely from saving time and effort by referring to and relying upon prior published material. It extended copyright protection in compilation beyond selection and arrangement - the compiler’s original contribution- to the facts themselves drawn on "Sweat of the brow" is a copyright protection to the facts discovered by the complier. The Court discarded “Sweat of the brow” notion of copyright law.
60. Although for establishing a copyright, the creativity standard applies is not that something 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 date or the case law is already included in the judgement 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 judgement 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.
(Emphasis added)
41. If it is seen in the above factual matrix and legal precedents, then it can be safely held that the plaintiff had failed to establish any ownership of the copy right in their favour and a corresponding infringement of copyright on the part of the respondents. Neither there is a prima facie case nor balance of convenience in favour of grant of any interim order or to continue the order of injunction. The applicant / plaintiff has not made out any case. The issue raised here is squarely covered by the exemption provided under Section 52 (1) (m) of the Copy Right Act, 1957. Accordingly, the application dismissed. No costs.
42. Before parting there is a caveat by this Court. Periyar’s writing in ‘Kudiyarsu’ appeared in the period between the two world wars. He faced incarceration at the hands of the Colonial rulers. The security furnished to the press was forfeited several times. He was ostracized by the Hindu orthodoxy. He had to leave the national movement to fight for the cause of social justice thus facing the wrath of the powerful Congress Party. Yet he continued his mission without expecting anything in return. Many times, the issues of Kudiyarasu had to be freely distributed as his ideas had to reach the educated ones since illiteracy was then rampant. The year 2009 is going to be the 130th year of his birth and it is painful to see a legal battle on copyright issues over his writings. In this fratricidal dispute, his ideas should not be submerged in court dockets. It is hope of this court that reason will prevail. Our motto should be :
“Let hundred flowers bloom and thousand thoughts, contained”.
K.CHANDRU . J.
PRE DELIVERY ORDER IN
O.A.No.940 OF 2008 IN
C.S.NO.814 OF 2008
27 -07- 2009
