Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 389 OF 2008
[Arising out of Special Leave Petition (Civil) No. 15612 of 2008]
ACADEMY OF GENERAL EDU., MANIPAL
& ANR. … APPELLANTS
Versus
B. MALINI MALLYA … RESPONDENT
J U D G M E N T
S.B. SINHA, J.
1. Leave granted.
2. ‘Yakshagana’ is a form of ballet dance. It has its own heritage.
Indisputably, Dr. Kota Shivarama Karanth (for short, “Dr. Karanth”),
a Jnanapeeth awardee, who was a Novelist, Play Writer, Essayist,
Encyclopediationist, Cultural Anthropologist, Artist, Writer of Science,
Environmentalist. He developed a new form of ‘Yakshagana’. He was a
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Director of the appellant – institute. On or about 18.6.1994, he executed a
Will in favour of the respondent. Dr. Karanth expired on 9.12.1997.
Yakshagana Ballet dance as developed by Dr. Karanth was performed in
New Delhi on or about 18.9.2001. Respondent filed a suit for declaration,
injunction and damages alleging violation of the copyright in respect of the
said dance vested in her in terms of the said Will stating that Dr. Karanth
developed a new distinctive dance, drama troop or theatrical system which
was named by him as ‘Yaksha Ranga’ which in his own words mean
“creative extension of traditional Yakshagana” and, thus, the appellants
infringed the copyright thereof by performing the same at New Delhi
without obtaining her prior permission. It was stated that Dr. Karanth had
composed seven verses or prasangas for staging Yaksharanga Ballet apart
from bringing in changes in the traditional form thereof on its relevant
aspects, namely, Raga, Tala, Scenic arrangement, Costumes etc. These
prasangas are: (i) Bhishma Vijaya; (ii) Nala Damayanthi; (iii) Kanakangi or
Kanakangi Kalyana; (iv) Abhimanyu or Abhimanyu Vada; (v) Chitrangadha
or Babruvahana Kalaga; (vi) Panchavati; and (vii) Ganga Charitha.
3. Plaintiff – respondent admittedly claimed copyright in respect of
‘literary and artistic works’ in her favour in terms of clauses 11 and 12 of
the said Will dated 18.6.1994, which read as under:
3
“11. Since I left the house ‘suhasa’ I have been
living in a specially built house “Manasa” of Smt.
Malini Mallya, who has built it with borrowed
money at her cost. She had joined my service as
Copyist and later, she secured an employment in
Life Insurance Corporation of India. Ever since
1974 till now in my old age she has been serving
me with exemplary devotion and sincerity. And in
this occasion I must also acknowledge with
gratitude that she diligently cared and nursed my
wife Leela Karanth during her prolonged illness
till her last day. And she has cared and looked
after me also during my illness which at times had
been quite serious, enfeebling me for long period.
In recognition of her devotion and sincere
affection towards me in 1986 I have dedicated one
of my novels namely, “Antida Aparanji” to her. I
have also placed on record her invaluable services
to me in my Memoirs, “Hunchu Mansina Hathu
Mukhagalu” 1991 Edition. In my opinion, very
long enduring and a signal service she has done to
me and to my literary works is, in writing a
bibliography of all my books- a highly meritorious
and scholarly work involving so much of pains
taking research, that it has been acclaimed and
rated as the first of its kind in Kannada and highly
appreciated by Critics and Scholars. Apart from
this, she has collected and edited all my stray
writings from 1924 onwards upto date in eight
Sumptuous volumes which are being published by
Mangalore University. This work also has
brought her deserving fame and appreciation of
Scholars. Such painstaking service in this
direction has brought to light several of my
hitherto untraced, forgotten and unknown writings
and thereby giving them extended or renewed
lease of life. For all these services, I hereby
declare that after my death copyrights in respect of
all my literary works shall vest with Smt. Malini
Mallya and she alone shall be entitled to receive
royalties of all my books and she shall be entitled
to print, publish and republish and market the
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same. Whatever she may earn thereby shall be her
exclusive income and property. No one else shall
have any right or claims for the same.
12. From time to time I have distributed among
my children all gold and silver jewels and
ornaments and other valuables, which were gifted
to me by my friends and admirers. And I have
distributed all copper and bronze vessels and
utensils among my children while leaving my
former home “Suhasa” keeping only bare essential
and necessary things and articles. Whatever
movable properties, books, fittings, furniture,
utensils etc. belonging to me into this house
‘Manasa’ and my Car and cash money in hand
after my death shall go to Smt. Malini Malya only.
No one else shall have any claim or right over the
same. Any outstanding due to me and Bank
Deposits and whatever assets or properties not
mentioned above, that is, residuary after my death
shall belong to Smt. Malini Mallya alone.”
4. Plaintiff- Respondent, inter alia, prayed for passing a judgment and
decree against the defendants – appellants granting the following reliefs:
“1. A declaration that the plaintiff is the
exclusive copyright holder in respect of
Yaksharanga ballets, namely, Bhishma
Vijaya, Kanakangi, Nala Damayanthi,
Panchavati, Gaya Charitha, Chitrangadha,
Abhimanyu Vadha, and for consequential
permanent injunction restraining the
Defendants, their agents, employees etc.
from staging or performing any of the above
said 7 ballets or Prasangas or any parts
thereof.
1,000-00
5
2. Directing the Defendants to pay to the
plaintiff damages of Rs.15,000/- towards
infringement of her copyright on account of
stating or performing Abhimanyu Vadha on
18-9-2001 at New Delhi.
15,000-00
3. Directing the Defendants to pay to the
plaintiff interest on Rs.15,000/- at 15% p.a.
from 18-9-2001 till now which is
95-00
4. Directing the Defendants to pay future
interest on Rs.15,000/- at 15% p.a. till
payment of the entire amount.
5. ……………………………..
6. ……………………………….”
5. Appellants in their written statement, however, denied and disputed
any copyright of the said dance in Dr. Karanth alleging that whatever work
he had done was in the capacity of a Director of the Kendra with the
assistance, finance and staff provided by the Organization of Mahatma
Gandhi Memorial College Trust in respect whereof a Committee was
formed under him by the Board of Trustees. It was furthermore contended
that Dr. Karanth was appointed as the President of the Executive Committee
of Yakshagana Kendra for a period of three years by the appellant and while
holding the said post only he expired.
6
6. By reason of a judgment and decree dated 14.11.2003, the District
Judge, Udupi decreed the said suit declaring the plaintiff - respondent as a
person having the exclusive copyright in respect of seven Prasangas and
that she had acquired the same by reason of a Will as a residuary legatee and
the defendants – appellants or their employees or agents were restrained
from performing the said seven ballets or Prasangas or any parts thereof in
any manner as evolved distinctively by Dr. Karanth.
7. Appellants aggrieved thereby and dissatisfied therewith preferred an
appeal before the Karnataka High Court which was marked as R.F.A. No.
271 of 2004. By reason of the impugned judgment and order dated
5.12.2007, the said appeal has been dismissed.
8. Appellants are, thus, before us.
9. Dr. Rajiv Dhavan, learned Senior Counsel appearing on behalf of
appellants in his usual fairness conceded:
i. The copyright in the literary work has been assigned by reason
of the said Will in favour of the respondent in terms of clause
12 of the Will.
ii. Dr. Karanth has made substantial changes in the original
traditional form of the Yakshagana dance. Additions made in
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the form of the said dance including the Prasangas fell within
the purview of ‘originality’ in respect whereof copyright could
be claimed.
It was, however, urged:
i. Keeping in view of the findings of the learned trial judge, it
ought to have been held that no cause of action arose against
the appellants in this case as the Institution had performed the
said dance at New Delhi in the memory of Dr. Karanth without
charging any fees.
ii. The form of copyright as regards dramatic work as has been
held by the High Court stating the same to be a part of the
literary work is not correct as they connote two different things.
iii. The form of injunction granted in favour of the plaintiff –
respondent is not in terms of the provisions of the Copyright
Act, 1957 as the appellant as an institution or otherwise is
entitled to use the same in terms of clauses (a), (i) and (l) of
sub-Section (1) of Section 52 thereof.
10. Mr. G.V. Chandrashekhar, learned counsel appearing on behalf of the
respondent, on the other hand, would support the impugned judgment.
8
11. The Copyright Act, 1957 (for short, “the Act”) was enacted to amend
and consolidate the law relating to copyright.
Section 2 is the interpretation section.
Section 2(c) defines ‘artistic work’ to mean (i) a painting, a sculpture,
a drawing (including a diagram, map, chart or plan), an engraving or a
photograph, whether or not any such work possesses artistic quality; (ii) a
work of architecture; and (iii) any other work of artistic craftsmanship.
The word ‘author’ is defined in Section 2(d) to mean, (i) in relation to
a literary or dramatic work, the author of the work; (ii) in relation to a
musical work, the composer; (iii) in relation to an artistic work other than a
photograph, the artist; (iv) in relation to a photograph, the person taking the
photograph; (v) in relation to a cinematograph film or sound recording, the
producer; and (vi) in relation to any literary, dramatic, musical or artistic
work which is computer-generated, the person who causes the work to be
created.
The term “communication to the public” as defined in Section 2(ff)
reads as under:
“(ff) “communication to the public” means
making any work available for being seen or heard
or otherwise enjoyed by the public directly or by
any means of display or diffusion other than by
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issuing copies of such work regardless of whether
any member of the pubic actually sees, hears or
otherwise enjoys the work so made available.
Explanation.- For the purposes of this clause,
communication through satellite or cable or any
other means of simultaneous communication to
more than one household or place of residence
including residential rooms of any hotel or hostel
shall be deemed to be communication to the
public”
Section 2 (ffa) defines the word “composer”, in relation to a musical
work, to mean the person who composes the music regardless of whether he
records it in any form of graphical notation. Section 2(h) defines “dramatic
work” to include any piece of recitation, choreographic work or
entertainment in dumb show, the scenic arrangement or acting, form of
which is fixed in writing or otherwise but does not include a cinematograph
film.
Section 2(o) defines “literary work” to include computer programmes,
tables and compilations including computer databases. Section 2(qq)
defines “performer” to include an actor, singer, musician, dancer, acrobat,
juggler, conjurer, snake charmer, a person delivering a lecture or any other
person who makes a performance.
10
Section 2(y) defines “work” to mean any of the following works,
namely:- (i) a literary, dramatic, musical or artistic work; (ii) a
cinematograph film; (iii) a sound recording.
Section 13 which occurs in Chapter III of the Act provides that
subject to the provisions thereof and the other provisions of the said Act,
copyright shall subsists throughout India in the following classes of works,
that is to say,-
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) sound recording.
Section 17 of the Act deals with “First owner of copyright”, in terms
whereof, subject to the provisions of the Act, the author of a work shall be
the owner of the copyright therein. Proviso (d) appended thereto states that
in the case of a Government work, Government shall, in the absence of any
agreement to the contrary, be the first owner of the copyright therein.
Sections 22, 23 and 52(1)(a), (i) and (l) of the Act, which are relevant
for our purpose read as under:
“22. Term of copyright in published literary,
dramatic, musical and artistic works .- Except as
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otherwise hereinafter provided, copyright shall
subsist in any literary, dramatic, musical or artistic
work (other than a photograph) published within
the life time of the author until fifty years from the
beginning of the calendar year following the year
in which the author dies.
Explanation- In this section, the reference to the
author shall in the case of a work of joint
authorship, be construed as a reference to the
author who dies last.
23 - Term of copyright in anonymous and
pseudonymous works.- (1) In the case of a
literary, dramatic, musical or artistic work (other
than a photograph), which is published
anonymously or pseudonymously, copyright shall
subsist until sixty years from the beginning of the
calendar year next following the year in which the
work is first published:
Provided that where the identity of the
author is disclosed before the expiry of the said
period, copyright shall subsist until sixty years
from the beginning of the calendar year following
the year in which the author dies.
(2) In sub-section (1), references to the author
shall, in the case of an anonymous work of joint
authorship, be construed,--
(a) where the identity of the authors is
disclosed, as references to that author;
(b) where the identity of more authors
than one is disclosed, as references to
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the author who dies last from amongst
such authors.
(3) In sub-section (1), references to the author
shall, in the case of a pseudonymous work of joint
authorship, be construed,--
(a) where the names of one or more (but
not all) of the authors arc
pseudonymous and his or their
identity is not disclosed, as references
to the author whose name is not a
pseudonym, or, if the names of two or
more of the authors are not
pseudonyms, as references to such of
those authors who dies last;
(b) where the names of one or more (but
not all) of the authors arc pseudonyms
and the identity of one or more of
them is disclosed, as references to the
author who dies last from amongst the
authors whose names arc not
pseudonyms and the authors whose
names are pseudonyms and are
disclosed; and
(c) where the names of all the authors arc
pseudonyms and the identity of one of
them is disclosed, as references to the
author whose identity is disclosed or
if the identity of two or more of such
authors is disclosed, as references to
such of those authors who dies last.
Explanation.—For the purposes of this
section, the identity of an author shall be deemed
to have been disclosed, if either the identity of the
13
author is disclosed publicly by both the author and
the publisher or is otherwise established to the
satisfaction of the Copyright Board by that author.
52. Certain acts not to be infringement of
copyright .- (1) The following acts 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 purpose of—
(i) Private use including research;
(ii) criticism or review, whether of that
work or of any other work;
xxx xxx xxx
(i) the performance, in the course of the
activities of an educational institution, of a
literary, dramatic or musical work by the
staff and student of the institution, or of a
cinematograph film or a sound recording, if
the audience is limited to such staff and
students, the parents and guardians of the
students and persons directly connected
with the activities of the institution or the
communication to such an audience of a
cinematograph film or sound recording.
xxx xxx xxx
(l) the performance of a literary,
dramatic or musical work by an amateur
club or society, if the performance is given
to a non-paying audience, or for the benefit
of a religious institution.”
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12. Before adverting to the submissions made by the learned counsel for
the parties, we may notice the issues framed in the suit, which are:
“i. Does plaintiff prove that late Dr.
Shivaramaji Karanth had acquired
copyright in respect of seven
Yakshagana Prasangas and also in
respect of Yakshagana dramatic or
theatrical form i.e., Bhishma Vijaya,
Nala Damayanthi, Kanakaangti or
Kanakangi Kalyana, Abhimanyu or
Abhimanyu Vadha, Chitrangadha or
Babruvahana Kalaga, Panchavati
Chritha followed in the plaint?
ii. Has the plaintiff became entitled to
the said right under the Registered
Will dated 18.06.1994?
iii. Does the plaintiff prove that her right
under the said Will was infringed by
the defendants?”
13. Indisputably, in view of the submissions made at the bar, respondent
had acquired copyright in respect of seven Yakshagana Prasangas as also in
respect of Yakshagana dramatic or theatrical form as a residuary legatee in
terms of clause 12 of the Will dated 18.6.1994.
15
However, we may notice that whereas the trial court has proceeded on
the basis that clause 12 of the Will shall apply in the instant case, the High
Court opined that clause 11 thereof is attracted, stating:
“…..No doubt, by reading para-12 of the ‘Will’
in isolation, one can certainly arrive at the
conclusion that the bequest made in favour of the
plaintiff is in the nature of residuary bequest.
But, that is not all, in the ‘Will’-Ex. P-1. I have
already referred to para No. 11 of the ‘Will’
while dealing with the topic dramatic works vis-
à-vis literary work and therefore if the ‘Will’ is
read in its entirety and if we take into account,
the benefits that flow from the bequest made by
Dr. Karanth in favour of the plaintiff, it is not as
if the plaintiff received the bequest only in
respect of the things which form the residuary as
mentioned in para-12 of the ‘Will’ but the
plaintiff also was given the copyrights in respect
of literary works and all books as well as the
right to print, republished and mark the literary
works as well as the books.”
Referring to the new Encyclopaedia Britannica and Halsbury’s Laws
of England, that a literary work with dramatic elements in it would also be
literary work, the High Court observed:
“Dramatic works also could contain in its,
passages of great literary taste, as in the case of
great plays of William Shakespear. Therefore, the
main classification as literary work and dramatic
work cannot be construed to mean that dramatic
16
work has nothing to do with literary work. The
only difference I see in them is that the dramatic
work (Plays) forms the text upon which the
performance of the plays rests whereas a ‘literary
work’ enables one to read the printed words.
Neither of the two can be produced without the
imaginative skill of the author.”
It was furthermore held:
“I am of the considered opinion that all the above
changes brought about by Dr. Karanth in respect
of Yakshagana Ballet leads to the inference that
the imaginative faculties of Dr. Karanth permeated
the entire Yakshagana Prasangas and thus a new
look was given to the Yakshagana Ballets. I,
therefore, hold that the bequest of copyright in
literary works and books in favour of the plaintiff
by Dr. Karanth, will have to be treated as the
bequest covering the dramatic works also since I
have also drawn the conclusion that the dramatic
works is also a form of literature. Therefore,
necessity of mentioning copyright separately in
respect of dramatic works does not arise. The
plaintiff, therefore, is entitled to copyright even in
respect of the dramatic works namely the seven
prasangas, by virtue of bequest made in her favour
in respect of copyrights and books.”
14. Broadly speaking, a dramatic work may also come within the purview
of literary work being a part of dramatic literature. The new Encyclopaedia
th
Britannica (Vol-IV) 15 Edition, provides the following information about
“Dramatic Literature.
17
“Dramatic Literature: the texts of plays that can be read, as distinct
from being seen and heard in performance.”
We must, however, notice that the provisions the Act make a
distinction between the ‘literary work’ and ‘dramatic work’. Keeping in
view the statutory provisions, there cannot be any doubt whatsoever that
copyright in respect of performance of ‘dance’ would not come within the
purview of the literary work but would come within the purview of the
definition of ‘dramatic work’. We, however, do not mean to suggest that any
act of literary work will be outside the purview of the Will dated 18.6.1994.
Our exercise in this behalf was only for the purpose of clarifying the
provisions of the Act with reference to the findings arrived at by the High
Court.
15. For the aforementioned reasons, we agree with Dr. Dhavan that
paragraph 12 of the Will, namely, residuary clause shall apply in the instant
case apart from the areas which are otherwise covered by paragraph 11 of
the Will. The residuary clause will apply because it is well settled that no
part of the stay lies in limbo. It was also not a case where respondent in any
manner whatsoever waived her right.
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16. The learned trial judge on issue No. 4 opined that plaintiff had not
been able to prove actual loss or damage particularly having regard to the
fact that Dr. Karanth had associated himself with the appellants for a long
time. The learned trial judge recognized the equitable interest vested in the
plaintiff – respondent. A declaratory decree, therefore, was passed.
17. We may notice at this stage that the form of injunction granted both
by the learned trial judge as also by the High Court in favour of the
plaintiff–respondent. The operative part of the judgment of the trial court
reads as under:
“Defendants or their employees or agents are
restrained from performing the above said 7
ballets or Prasangas or in parts thereof in any
manner as evolved distinctively by Dr. Karanth by
way of permanent injunction.”
The High Court, however, directed:
“(iii) As far as the restraint order passed by the
Trial Court by granting permanent injunction to
the plaintiff is concerned, the same is modified by
ordering that if the appellants desire to stage any
of the seven Yakshagana prasangas in the manner
and form as conceived in all respects viz.,
costumes, choreography and direction by Dr.
Karanth, the appellants can do so only in
accordance with the provisions of the Copyrights
Act, 1957 in view of copyright in seven prasangas
vesting with the plaintiff.”
19
18. 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.
19. In R.G. Anand vs. M/s Delux Films & ors. [(1978) 4 SCC 118], this
Court held:
“46. Thus, on a careful consideration and
elucidation of the various authorities and the case
law on the subject discussed above, the following
propositions emerge:
1. There can be no copyright in an idea,
subject-matter, themes, plots or historical or
legendary 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.
2. Where the same idea is being developed in a
different manner, it is manifest that the
source being common, similarities are
bound to occur. In such a case the courts
should determine whether or not the
similarities are on fundamental or
substantial aspects of the mode of
expression adopted in the copyrighted work.
If the defendant’s work is nothing but a
literal imitation of the copyrighted work
with some variations here and there it would
amount to violation of the copyright. In
other words, in order to be actionable the
20
copy must be a substantial and material one
which at once leads to the conclusion that
the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to
determine whether or not there has been a
violation of 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.
4. Where the theme is the same but is
presented and treated differently so that the
subsequent work becomes a completely new
work, no question of violation of copyright
arises.
5. Where however apart from the similarities
appearing in the two works there are also
material and broad dissimilarities which
negative the intention to copy the original
and the coincidences appearing in the two
works are clearly incidental no infringement
of the copyright comes into existence.
6. As a violation of copyright amounts to an
act of piracy it must be proved by clear and
cogent evidence after applying the various
tests laid down by the case-law discussed
above.
7. Where however the question is of the
violation of the copyright of stage play by a
film producer or a director the task of the
plaintiff becomes more difficult to prove
piracy. It is manifest that unlike a stage play
a film has a much broader prospective,
wider field and a bigger background where
the defendants can by introducing a variety
of incidents give a colour and complexion
different from the manner in which the
copyrighted work has expressed the idea.
Even so, if the viewer after seeing the film
gets a totality of impression that the film is
by and large a copy of the original play,
violation of the copyright may be said to be
proved.”
21
Yet again in Eastern Book Company & ors. vs. D.B. Modak & Anr.
[(2008) 1 SCC 1], this Court held:
“57. The Copyright Act is not concerned with the
original idea but with the expression of thought.
Copyright has nothing to do with originality or
literary merit. Copyrighted material is that what is
created by the author by his own skill, labour and
investment of capital, maybe it is a derivative
work which gives a flavour of creativity. The
copyright work which comes into being should be
original in the sense that by virtue of selection,
coordination or arrangement of pre-existing data
contained in the work, a work somewhat different
in character is produced by the author. On the face
of the provisions of the Copyright Act, 1957, we
think that the principle laid down by the Canadian
Court would be applicable in copyright of the
judgments of the Apex Court. We make it clear
that the decision of ours would be confined to the
judgments of the courts which are in the public
domain as by virtue of Section 52 of the Act there
is no copyright in the original text of the
judgments. To claim copyright in a compilation,
the author must produce the material with exercise
of his skill and judgment which may not be
creativity in the sense that it is novel or non-
obvious, but at the same time it is not a product of
merely labour and capital. The derivative work
produced by the author must have some
distinguishable features and flavour to raw text of
the judgments delivered by the court. The trivial
variation or inputs put in the judgment would not
satisfy the test of copyright of an author.”
20. The High Court, in our opinion, should have clarified that the
appellants can also take the statutory benefit of the provisions contained in
clauses (a), (i) and (l) of sub-section (1) of Section 52 of the Act.
22
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 use including
research and criticism or review, whether of that work or of any other work,
the right in terms of the provisions of the said Act cannot be claimed. Thus,
if some performance or dance is carried out within the purview of the said
clause, the order of injunction shall not be applicable. Similarly, appellant
being an educational institution, if the dance is performed within the
meaning of provisions of clause (i) of sub-section (1) of Section 52 of the
Act strictly, the order of injunction shall not apply thereto also. Yet again,
if such performance is conducted before a non-paying audience by the
appellant, which is an institution if it comes within the purview of amateur
club or society, the same would not constitute any violation of the said order
of injunction.
21. With the aforementioned modification in the order of injunction, this
appeal is dismissed. However, in the facts and circumstances of the case,
there shall be no order as to costs.
.……………….…..………….J.
[S.B. Sinha]
23
..………………..……………J.
[Lokeshwar Singh Panta]
……………….…..………….J.
[B. Sudershan Reddy]
New Delhi;
January 23, 2009