ACADEMY OF GENERAL EDU., MANIPAL & ANR. versus B. MALINI MALLYA

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. 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 ACADEMY OF GENERAL EDU., MANIPAL & ANR. v. B. MALINI MALL YA [S.B. SINHA, J.] with the topic dramatic works vis-a-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 c 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 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 -I 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 c literature. The new Encyclopaedia Britannica (Vol-IV) 15th Edition, provides the following information about "Dramatic Literature. "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 F of clarifying the provisions of the Act with reference to the r 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 G 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. ACADEMY OF GENERAL EDU., MANIPAL & ANR. v. 8. 631 MALINI MALL YA [S.S. SINHA, J.]

16. The learned trial judge on issue No. 4 opined that A 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 B 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 c 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 F copyright in seven prasangas vesting with the plaintiff."

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 G 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. Mis Delux Films and 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 -<I and violation of the copyright in such cases is confined to the form, manner and arrangement and c 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 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 Jo: ACADEMY OF GENERAL EDU., MANI PAL & ANR. v. B. 633 MALINI MALL YA [S.B. SINHA, J.] 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." Yet again in Eastern Book Company and ors. vs. D.B. Modak and Anr. ((2008) 1 SCC 1], this Court held: c "57. The Copyright Act is not concerned with the original G 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 H c [2009) 1 S.C.R. 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 (I) of sub-section ( 1) of Section 52 of the Act. 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 G 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 ACADEMY OF GENERAL EDU., MANIPAL & ANR. v. B. MALINI MALL YA [S.B. SINHA, J.] sub-section (1) of Section 52 of the Act strictly, the order of A 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. R.P. Appeal dismissed.