Sunday 11 August 2013

Documents upon which reliance is placed Must be brought on record legally


He also relied AIR 1989 Patna 66 Mostt. Rajwati Devi and another V. The Joint Director, Consolidation, Govt. of Bihar, wherein it is held as follows:
"Evidence Act (1 of 1872), S.61 Documents upon which reliance is placed Must be brought on record legally Documents do not prove themselves Passing of order on basis of documents No witness examined for proving documents There is procedural infirmity in passing impugned order".

Madras High Court
J.B.Khanna & Company vs S.Asad on 28 March, 2008



This Original Side Appeal filed by the appellant/ defendant is directed against the Judgment and Decree passed by the learned single Judge dated 24.08.2001 in C.S.No.13 of 1989.
2.The learned single Judge in his Judgment and Decree dated 24.08.2001 in C.S.No.13 of 1989 has held that the respondent/plaintiff is the owner of the copyright in respect of the pictures Lake Louis and photograph of Tiger and granted relief of permanent injunction restraining the appellant/defendant from manufacturing, printing, selling or offering for sale the said pictures and further directed the appellant/defendant to deliver to the respondent/ plaintiff all the pictures so far manufactured by him within one month from this date and also held that the respondent/plaintiff is entitled to a sum of Rs.1,00,000/- as damages for the piracy committed and ordered that the relief of accounting shall be considered separately under Order 20 Rule 17 C.P.C..
3.According to the learned counsel for the appellant/ defendant, the learned single Judge has failed to notice that the photographs of Tiger drinking water are all common photographs available in the market and the other photographs of scenery is also very much available in the market and that there is no copyright is involved and that the respondent/plaintiff has not proved his copyright in the photographs by adducing any acceptable evidence and that the original transparency relied on by the respondent/plaintiff has not been produced in Court and that the suit photographs Lake Louis and the Tiger drinking water are common objects and any one can take the said photographs as no copyright is involved and that the appellant/defendant has not acquired any picture from the Print System and Products nor committed any piracy has alleged and that the reasonings assigned by the learned single Judge in the Judgment are full of surmises and conjectures without any legal basis and therefore, prays for allowing the appeal.
4.The stand of the respondent/plaintiff is that he is a class photographer and his name is noted even in Foreign photographic directories and publications etc. and that he for is stock purposes in 1986 went to the 'Project Tiger' at Kanha National Park of Madhya Pradesh and took a rare photograph of a tiger drinking water at a water-hole and the copyright or the said picture belongs absolutely to him and that he waited for several days in order to get such a glimpse for the purpose of taking said photograph and he gave the picture for one time use to the Print Systems and Products, Madras-8, who acknowledged the ownership of the said copyright of respondent/plaintiff and specifically printed on the print itself 'S.Asad'.
5.The further plea of the respondent/plaintiff is that when he went to Europe and U.S.A. on a visit, he visited Lake Louis in Canada some time in July 1987 and took a photograph of scenery of the said lake and therefore, the copyright in relationship to the said picture absolutely vests with him and that the appellant/defendant, a dealer in pictures and photographs and who sells on mass scale such picture very cheaply after pirating other people's work and makes a fortunate in the process for such piracy he has purposely omitted certain features and added few words and then sold the product and that the respondent/plaintiff suspects that the appellant/defendant should have obtained the prints produced the Print Systems and Products and after cleverly deleting some portions reproduced the same by adding certain words to the said prints and that the appellant/defendant had committed piracy in respect of the aforesaid two photographs and after cutting of certain portions of the original selling the same on mass scale and making huge profits etc.
6.The appellant/defendant's case is that though acquired a photo of Tiger drinking water and the scenery of the Lake Louis from M/s.Jain Brothers of Bombay, bona fide without any notice of alleged copyright of the respondent/ plaintiff and that the the photo acquired by the appellant/ defendant are not the ones alleged to have been taken by the respondent/plaintiff and that the appellant/ defendant got the transparencies given by the Jain Brothers, Bombay and that there is no averment in the plaint that appellant/ defendant was aware of the copyright of the respondent/ plaintiff and that the suit is liable to be dismissed in liminie because no negatives and no original documents were filed along with the suit and appellant/defendant is not a 'Pirator' and that a mere suspicion cannot give cause of action for filing a suit and there are number of Tiger pictures and pictures of Lake Louis and being common place photographs, anybody can take them at any place and that the claim of damage of Rs.1,00,000/- is imaginary and fanciful and that the respondent/plaintiff is not entitled to the relief of declaration or injunction or accounts and that the suit is purely vexatious and an abuse of process of law and therefore, prays for dismissal of the same with exemplary costs.
7.The respondent/plaintiff, as P.W.1 in his evidence has stated that he went to Kanha Forest to take photograph of the Tigers in a particular position of the water-hole and after staying there for a week, he succeeded in taking the photograph he wanted and that the wild life photography involves not only knowledge of wild animals but also requires special equipments and patience and that the transparency of the Tiger photographed by him is available and that he gave this picture for reproduction to Print Systems and Products and that he gave the reproduction right and they produced some posters in connection with their shifting to a new place and acquiring modern equipment and that subsequently he went to Canada in the year 1987 and photographed the Lake Louis and that the photograph shown to him is the reproduction of his transparency taken at Lake Louis which is Ex.P.10 and the reproduction is done by Print Systems and Products and he is in possession of both the transparencies.
8.D.W.1 (one of the partners of the appellant/ defendant company) in his evidence has stated that they are printing the pictures of Gods, Sceneries, photographs of Babies, Animals, National leaders, etc., in various sizes carrying on business at No.10, Devaraja Mudali Street, Madras-3 and owning printing press at No.302, Sydenhams Road, Madras-112 and that they purchased transparencies from photographers in regard to the sceneries, Animals and Babies etc. and that the photographers come from Delhi, Bombay and Calcutta to their place and sell them to them and Ex.D.1 is the transparency of Tiger drinking water and Ex.D.2 is the transparency of scenery of Lake Louis which he got from Jain Brothers, photographers in 1987 who came from Bombay and that he processed Ex.D.1 and D.2 for printing pictures and to identify their photographs, they used to print a serial number and their monogram containing letters JB. and Ex.P.11 and P.12 were bear serial No.1677, taken from Ex.D.1 and Ex.P.13 photograph was obtained by processing Ex.D.2 and they have printed 500 pictures in big size and 500 pictures in small size from Ex.D.1 and out of D.2 transparency, they have printed 500 pictures and spent money for printing the pictures and that the big size pictures are sold to Retailers at RS.10/- each and to the Wholesalers at Rs.4/- by them and the medium size pictures are sold at Rs.4/- each to retailers and at Rs.1.50/- to the wholesalers and pictures like Exs.P.6 and P.10 are freely available in the common market.
9.It is further evidence of D.W.1 that Parks, landscapes, Animals are all common places and things and anybody can take a photo of the same and photographs can be commonly picturised by any one and he does not know Print System and Products and they did not acquire any transparencies from the said Print System and Products and the transparencies produced by the respondent/plaintiff kept in the Court are different from Ex.D.1 and D.2 and in the plaintiff's transparency, the view is big but in his transparency, the view is small and Ex.D.1 and D.2 are fuji film transparencies and there cannot be a duplicate transparencies and the transparencies produced by the respondent/plaintiff are common place etc. and therefore, he cannot claim copyright of transparencies and Ex.P.6 and P.10 are different from Ex.P.11 and P.13.
10.It is to be noted that as per Copyright Act, 1957, registration is not a compulsory one. As a matter of fact, there is no section in the Copyright Act, 1957 which says that the author can have no remedy unless he gets his work registry. A copy is defined as that which comes so near the original as to suggest the original to the mind of the spectator as per decision (1905) 1 Ch. 519. In copyright what is relevant is a substantial appropriation of once labour and such appropriation depends on the quality and not the quantity as per decision AIR 1988 Ker. 291 at page 294, 295 V.T.Thomas V. Malayala Manorama Co. Ltd., Cochin.
11.It is not out of place to make a mention that the main aim of copyright law is to secure a fair return to an author for his creative labour. The animus furandi i.e. an intention to take from another for the purpose of saving labour is one of the ingredients to be found against the defendant. As a matter of fact, the object of Copyright Act is to protect the commercial value of productive effort, the individuals mind intended to protect all intellectual property capable of extensive reproduction. Copyright is transmissible by assigning, by testamentary dispossession by operation of law as personal or movable property. Oral evidence may be admitted to identify the subject matter of assignment.
12.It cannot be gainsaid that the safest test to determine whether or not there has been a violation of copyright is to see if the reader or spectator or viewer after having seen or read both the works is clearly of the view and gets an unmistakable impression that the special work appears to be a copy of original. No doubt, as the violation of copyright amounts to an act of piracy it must be proved by cogent and clear evidence.
13.In AIR 1975 Delhi at page 130 Khemraj Shrikrishnadass V. M/s.Garg and Co. and another, it is held that
"Action for infringement of a trade mark or copyright is a statutory remedy and in pursuing it, the plaintiff must prove his title and exclusive right to use the trade mark (or work) in question and further establish that the defendant has infringed the same by identical or deceptively similar or colourable imitation of it. In such a case, if otherwise established. It is no valid defence on the part of the defendant that it has been sufficiently indicated on the infringing good that they are not of the plaintiff, but of the defendant".
14.In AIR 1925 Calcutta page 220 Imperial Tobacco Company Ltd., V. Atlantic Tobacco Company, it is observed as follows:
"While the Judge must not surrender his own independent judgment to any witness whatsoever, he must at the same time, in order to arrive at the proper conclusion, not disregard the evidence adduced in the particular case before him. In finding out the amount of resemblance, not only must one look at the distinguishing features i.e. dissimilarities, but one must look at the whole and not parts and then come to a decision. Each resemblance must not be taken by itself and a conclusion is not be based thereon. The Court must look not only to the resemblance between the two names but also as to the get up as a whole and while not disregarding the parts which are common to the trade must try to find out whether plaintiff has made out a case showing that the defendant's goods are like the plaintiff's by reason of something peculiar to the plaintiff and by reason of the defendant having adopted some mark or devise or label of something of that kind, which distinct-guishes the plaintiff's goods which have, like those goods the features common to the trade. [P.222, Cs.1 and 2]".
15.In AIR 1967 Madras page 381 at 382 The Daily Calender Supplying Bureau, Sivakasi V. The United Concern, it is observed that
"For the purpose of infringement of copyright, an exact reproduction or copy is not necessary. What is essential is to see whether there is a reproduction of substantial part of the picture. There can be no test to decide what a substantial part of a picture is. As long as the mind is able to form on an examination of the two pictures that basically and in substance one is a reproduction of the other, further modifications or variations will not alter the effect of infringement. There might be and there will be obvious differences deliberately introduced to avoid a possible change of infringement. A bad copy does not cease to be a copy. If the court, on a consideration of all the relevant circumstances and a comparison of the plaintiff's picture and the infringing pictures comes to the conclusion that the defendant's picture was consciously copied from the work of the plaintiff, that would be sufficient to hold that copyright is infringed.: 1895 AC 20 (25) and AIR 1961 Mad 111 and AIR 1961 Mad 114 and (1848) 3 Story U.S. Rep. 768. Rel. on. 'Law of Copyright' by Copinger, page 148, Ref.".
16.In AIR 1972 Calcutta at page 533 Satsang and another V. Kiron Chandra Mukhopadhyay and others, it is held that
"There is no section in the Copyright Act, 1957, to the effect that the author of a literary work etc. can have no right or remedy unless the work is registered. A person has an inherent copyright in an original composition or compilation without the necessity of its registration. AIR 1970 Madh Pra 261 and AIR 1960 Andh Pra 415 Distinguished. Dictum in AIR 1970 Madh Pra 261 about registration requirement held obiter".
17.In 1972 Criminal Law Journal at page 1098 at 1100 K.R.Venugopala Sarma V. Sangu Ganesan,it is observed as follows:
"Ketewich, J. in Hanfsataengl V. W.H. Smith and Sons. 1905-1 Ch 519, defines the copy thus:
"A copy is that which comes so near to the original as to suggest that original to the mind of every person seeing it".
Applying this test, the degree of resemblance between the two pictures, which is to be judged by the eye, must be such that the person looking at the respondents' pictures must get the suggestion that it is the appellant's picture. In this sense, the points of resemblance and dissimilarity in the picture assume some importance in finding out whether taken as a whole the respondents pictures produce the impression in the mind of any observer, which amounts to a suggestion of the appellant's picture. One picture can be said to be a copy of another picture only if a substantial part of the former picture finds place in the reproduction. As pointed out inAssociated Publishers (Madras) Ltd. V. K.Bashyam, AIR 1961 Mad 114 - "In order to constitute infringement there should be direct or indirect use of those features of the plaintiff in which copyright subsists. It is unusual for an infringement to consist of an exact reproduction of the whole of the plaintiff's work. Consequently it is difficult to be precise as to the amount of copying or degree of resemblance necessary to constitute infringement. The conclusion must depend, in the words of Lord Herschell 'really on the effect produced upon the mind by a study of the picture, and of that which is alleged to be a copy of it or at least of its design". Thus it is well-settled that an infringement could only come into existence where the impugned picture was taken from the picture of the complainant. In deciding this question, there need not be an exact reproduction to support the inference that the picture of the respondents was taken from the complainant's picture. Indeed, every intelligent copying must introduce a few changes. Shortly stated, the effect which produces upon the mind by a study of the two pictures should be to the end that the respondents' picture is nothing but a copy of the picture of the complainant.
18.In 1987 Delhi page 372 at 373 John Richard Brady and others V. Chemical Process Equipments P. Ltd. and another, it is laid down as follows:
"Civil P.C. (5 of 1908), O.39, Rr.1 and 2 Copyright Act (14 of 1957), S.55 Infringement of copyright Application for injunction restraining defendants from dealing in machines which were substantial imitation of plaintiff's unit Striking general similarity between defendant's machine and drawings of plaintiff Held, on evidence plaintiff had established prima facie case of infringement of copyright Injunction granted".
19.In AIR 1931 Calcutta at page 233 at 234 Mohini Mohan Singh V. Sita Nath Basak, it is held that
"There were strange coincidences, series of coincident reproductions, and although it could not be said for certain that the defendants' work was a mere imitation of the plaintiff's work, as there were differences and improvements in the later publication, the impression left was that the defendant in his work had largely copied the plaintiff's book. Although there was some exercise of individual choice and some judgment also in adding some new features which might be considered improvements on the plaintiff's books. Held: that the defendants' book was colourable imitation of the plaintiff's book. [P 239 C [1900] A. C. 539=69 L.J. Ch 699=16 T.L.R. 551=49 W.R. 95=83 L.T. 289]".
20.In AIR 1961 Madras 111 C.Cunniah and Co. V. Balraj & Co., whereby and whereunder it is held as follows:
"A copy is that which comes so near to the original as to suggest that original to the mind of every person seeing it. Applying this test, where the question is whether defendant's picture is a copy or a colourable imitation of the plaintiff's picture the degree of resemblance between the two pictures, which is to be judged by the eye, must be such that the person looking at the defendant's picture must get the suggestion that it is the plaintiff's picture. One picture can be said to be a copy of another picture only if a substantial part of the former picture finds place in the reproduction. (para 7) It is well settled that an infringement could only come into existence where the defendant's work was taken from the plaintiff's work. In deciding this question, there need not be an exact reproduction to support the inference that the defendant's work was taken from the plaintiff's work. Indeed, every intelligent copying must introduce a few changes. It is impossible to lay down any rule which could serve as a useful test of what constitutes a copy or colourable imitation. At all events, it is much easier to arrive at what does not than to define what does constitute the proper test of copying or colourable imitation of one work in another. 1895 A.C. 20, Followed".
21.It is pertinent to point out that P.W.1 (respondent/plaintiff) in his evidence has deposed that in Ex.P.11 to P.13 pictures, the bottom portion is cut off and the purchase bill obtained for the purchase of these pictures from the appellant/defendant is Ex.P.14 and the difference between the two pictures is the bottom portion were Photographer's name and the printer's name is found, is cut off in the pirated pictures and in the second pictures viz., the Lake Louis the wheel portion of the flower cart is also cut off in the pirated copy and as regards the Tiger photo, the bottom portion is cut off and one can notice that the original colour of the water viz., the green colour in the original photo has turned into yellow colour in the pirated photo and he has a box with illuminate light and by putting the transparencies in the box and with the help of the magnifier one can see the difference between the copies.
22.The evidence of P.W.1 is also to the effect that he located the Tiger not in the open space nor in any bush but near the water-hole and that he has produced only one transparency before the court of a Tiger drinking water and he discarded the second transparency and that the same Tiger drinking water transparency he has given to Hullo Madras for one time use subsequently.
23.According to P.W.1's evidence in Ex.P.6 at the left lower corner there is an inset picture and on the right lower down portion, the name of the print system and below that his name are found and these features are not found in Ex.P.11 and in Ex.P.10 in the lower left corner there is a full picture of flower cart and at the right lower bottom the name of the print system and below that his name are found and that the lower portion of flower cart is cut off and also his name is omitted in the right lower bottom part in Ex.P.13.
24.The learned counsel for the appellant/defendant submits that the learned single Judge has not appreciated the list of authorities cited on their side and relied on the decision AIR 1986 Delhi at page 444 Calmin Private Ltd. V. M/s.National Pencil Industries, wherein it is observed as follows: "Copyright Act (14 of 1957), Ss.13(1)(a), 2(i) Whether use of word "National Elora" on cartons of defendants give any cause of action to plaintiffs for infringement of their copyright or trade mark "Camlin Flora".
25.He also relied AIR 1989 Patna 66 Mostt. Rajwati Devi and another V. The Joint Director, Consolidation, Govt. of Bihar, wherein it is held as follows:
"Evidence Act (1 of 1872), S.61 Documents upon which reliance is placed Must be brought on record legally Documents do not prove themselves Passing of order on basis of documents No witness examined for proving documents There is procedural infirmity in passing impugned order".
26.Yet another decision is relied on by the appellant/ defendant, in AIR 1985 (Bom.) page 229 Indian Express Newspapers Pvt. Ltd., Jaganmohan, wherein it is held that "there cannot be a copyright in an event which has actually taken place".
27.The learned counsel for the appellant/defendant also relied on AIR 1992 Karnataka page 1 K.A.Venugopala Setty V. Suryakantha U.Kamath, it is laid down as follows:
"Section 19-A of the Act providing for settlement of disputes relating to assignment of copyright will come into play only when there is an assignment of copyright in accordance with S.19 of the Act, in other words the assignment is in writing and signed by the assignor or his duly authorised agent. Where the assignment was an oral one and was invalid according to S.19 of the Act, S.19A cannot be held to operate and accordingly bar the suit".
28.According to the P.W.1's (respondent/plaintiff) evidence, the Tiger poster now shown to him blowed up from 35 mm transparencies by print systems and it is Ex.P.6. In Ex.P.10 is the Lake Louis scenery taken by the respondent/ plaintiff and reproduced by the "Print System and Products". In Ex.P.6-Photo of Tiger drinking water the name of Print System and Products and the name of respondent/ plaintiff are seen. Likewise in Ex.P.10, in the Lake Louis scenery the name of Print Systems and Products and respondent/plaintiff's name are seen. In Ex.P.11 and P.12-Tiger drinking water picture produced and sold by the appellant/defendant [one big size and one small size] the letters "All the things are difficult before they are see" are found. In Ex.P.13 is the Lake Louis photo sold by the appellant/defendant wherein the letters "JB1680" are found.
29.On a careful perusal of the written statement filed by the appellant/defendant, it transpires that the appellant/defendant has nowhere stated that the respondent/ plaintiff is not the author of Exs.P.6 and P.13. As a matter of fact, it is evident that in Ex.P.6-photograph of Tiger drinking water there is a brightness of shape or figure. Per contra, the said brightness of shape or figure is not seen in Ex.P.11 and P.12, pictures produced by the appellant/tenant, pertaining to Tiger drinking water. A close scrutiny of Ex.P.6 (photo of Tiger drinking water, printed by print system) and Ex.P.11 and P.12-Tiger drinking water picture produced and sold by appellant/defendant will leave no doubt to ones mind that the same has originated from a single place or thing, notwithstanding the fact that in Ex.P.6 the letters "All the things are difficult before they are easy" are not found.
30.A cursory glimpse of Ex.P.10 (Lake Louis scenery taken by the respondent/plaintiff and reproduced by the Print System and Products) with that of Ex.P.13 (Lake Louis photograph of the appellant/defendant) do indicate in candid terms that they are same. At this stage, it is pertinent to point out that in Ex.P.10 Lake Louis Scenery (produced by respondent/plaintiff) "The cart with flowers and wheels are visibly seen". On the other hand, in Ex.P.13-Lake Louis photograph (produced by appellant/ defendant) the wheels in entirety are not to be seen and the lower portion of the wheels are cut off. Therefore, the perusal of Ex.P.10 (Lake Louis scenery produced by respondent/plaintiff) and Ex.P.13 (Lake Louis photograph of the appellant/defendant) leaves one to the inevitable conclusion that it has originated from a single thing/ place, in the considered opinion of this Court.
31.In the instant case on hand, the fact that the respondent/plaintiff has visited Lake Louis in Canada in 1987 and taken a photograph of the scenery at the said lake cannot be denied and this is evidenced from his entry into Canada during 19th June 1987. Therefore, the stand of the respondent/plaintiff that he has taken the photograph of scenery at Lake Louis in Canada is of credence, convincing and the same is believed and accepted by this Court. Another interesting feature to be noticed in the case before us is that D.W.1-Ashok Kumar Kanna in his cross examination has specifically stated that he does not know the address of Jain Brothers and during 1991, the said brothers did not come to him but their representative came and when he asked him the address of the said brothers, the representative could not give their address and he was not there in the office after 1989 and therefore, when Jain Brothers came to his office subsequent to 1989 he could not ascertain their address and therefore, the plea of the appellant/defendant that the photographs were purchased from Jain Brothers have not been established to satisfy the judicial conscience of this Court, in our considered opinion.
32.Suffice it to point out that a closer examination of Ex.P.6 and P.10 while comparing it with Exs.P.11 to P.13 viz., Tiger drinking water picture of appellant/defendant (big and small size) and Lake Louis photograph of defendant leaves one with a clear impression that Exs.P.11 to P.13 are not of bright quality picture, obviously because they have been taken from the copy of the copy.
33.According to the appellant/defendant, the suit is bad for non-joinder of proper and necessary party and that the suit as framed is not maintainable. The respondent/plaintiff has given a transparency to the Print Systems and Products for one time use and this will not certainly affect his copyright of authorship in the eye of law, in the considered opinion. At this juncture, it is useful to refer to the decision (2004) 8 SCC at page 706 at 707 Balvant N. Viswamitra and Others V. Yadav Sadashiv Mule (Dead) through LRs. and others, wherein it is observed that "a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding". Bearing in mind the aforesaid principles of the Hon'ble Supreme Court, we are of the view that the Print Systems and Products is not a necessary and proper party to the proceedings and therefore, the suit as framed is perfectly maintainable and valid in law.
34.In short, considering the available material evidence on record and also taking note of P.W.1 and D.W.1's evidence and in the light of detailed discussions, we are of the view that the respondent/plaintiff is the author of Ex.P.6 (photograph of Tiger drinking water, printed by print systems) and Ex.P.10 (Lake Louis scenery reproduced by the Print Systems and Products) and that his copyright has been infringed by the appellant/defendant and that the respondent/plaintiff is entitled to the relief of declaration and permanent injunction and that the claim of damages for a sum of Rs.1,00,000/- as prayed for by the respondent/plaintiff is not excessive for the act of piracy committed by the appellant/defendant and in that view, we are not inclined to interfere with the Judgment passed by the learned single Judge in C.S.No.13 of 1989 dated 24.08.2001 and resultantly, the O.S.A. fails and the same is hereby dismissed to prevent aberration of justice. It is open to the respondent/plaintiff to workout his remedy as per Order 20 Rule 17 C.P.C. in regard to the relief of accounting in accordance with law. Considering the facts and circumstances of the case, the parties are directed to bear their own costs. (S.J.M.J.,) (M.V.J.,)
28.03.2008
Index :Yes
Internet :Yes
Sgl
S.J.MUKOPHADHAYA,J.
AND
M.VENUGOPAL,J.
Sgl
JUDGMENT IN
O.S.A.NO.99 OF 2002
28.03.2008

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