EASTERN BOOK COMPANY & ORS. versus D.B. MODAK & ANR.

11. Copyright is purely a creation of the statute under the 1957 Act. What rights the author has in his work by virtue of his creation, are defined in Sections 14 and 17 of the Act. These are exclusive rights, but subject to the other provisions of the Act. 1n the first place, the work B should qualify underthe provisions of Section 13, for the subsistence of copyright. Although the rights have been referred to as exclusive rights, there are various exceptions to them which are listed in Section 52.

12. We are mainly concerned for the purpose of these appeals with Sections 2 [clauses (k), ( o ), (y)], 13(1 ), 14(1 )(a), 17, proviso ( d) C and 52(1 )( q)(iv) of the Copyright Act, 1957. The relevant provisions of these Sections are as under: "2. Interpretation.- In this Act, unless the context otherwise reqmres, – xxx xxx xxx (k) "Government work" means a work which is made or published by or under the direction or control of – (i) the Government or any department of the Government; (ii) any Legislature in India; (lii) any Court, Tribunal or other judicial authority in India;" xxx xxx xxx "( o) "literary work" includes computer programmes, tables and compilations including computer databases;" xxx xxx xxx "(y) "work" means any of the following works, namely:- (i) a literary, dramatic, musical or artistic work; (ii) a cinematograph film; (iii) a sound recording;" [2007] 13 (Addi.) S.C.R. "13. Works in which copyright subsists. – (I) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist 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, (2) Copyright shall not subsist in any work specified in sub-section C (1 }, other than a work to which the provisions of section 40 or section 41, apply, unless – (i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at D the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India; (ii) in the case of an unpublished work other than a work of architecture, the author is at the date of the making of the work a citizen of India or domiciled in India; and (iii) in the case of a work of architecture, the work is located in India Explanation.- In the case of a work of joint authorship, the conditions conferring copyright specified in this sub-section shall be F satisfied by all the authors of the work. (3) Copyright shall not subsist- (a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such ·,.. work has been infringed. xxx xxx xxx" EASTERN BOOK COMPANY & ORS. v. D.B. MODAK&ANR. [NAOLEKAR, J.] "14. Meaning of copyright. -(1) For the purposes of this Act, A "copyright" means the exclusive right, subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:- (a) in the case of a literary, dramatic or musical work, not being B a computer programme, – (i) to reproduce the work in any material form including the storing of it in any medium by electronic means; (ii) to issue copies of the work to the public not being c copies already in circulation; (lii) to perform the work in public, or communicate it to the public; (iv) to make any cinematograph film or sound recording in D respect of the work; (v) to make any translation of the work; (vi) to make any adaptation of the work; (vii) to do, in relation to a translation or an adaptation of E the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi); xxx xxx xxx'' "17. First owner of copyright.- Subject to the provisions ofthis F Act, the author of a work shall be the first owner of the copyright therein: Provided that – xxxxxxxxx ( d) 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; [2007] 13 (Addl.) S.C.R. xxx xxx xxx" "52. Certain acts not to be infringement of copyright.- (1) The following acts shall not constitute an infringement of copyright, namely:- (a) …. c xxx xxx xxx ( q) the reproduction or publication of – (i) xxx xxx xxx (iv) any judgment or order of a Court, Tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the Court, the Tribunal or other judicial authority, as the case may be; xxx xxx xxx"

13. Subjectto the provisions of Section 13 and the other provisions E of the Act, there shall be a copyright throughout India in original literary work, dramatic, musical and artistic works, cinematograph films and sound recording, subject to the exceptions provided in sub-sections (2) and (3) of Section 13. For copyright protection, all literary works have to be original as per Section 13 of the Act. Broadly speaking, there F would be two classes ofliterary works: (a) primary or prior works: These are the literary works not based on existing subject-matter and, therefore, would be called primary or prior works; and (b) secondary or derivative works: These are literary works based on existing subject- matter. Since such works are based on existing subject-matter, they are G called derivative work or secondary work. Work is defined in Section ;2.(y) which would be a literary, dramatic, musical or artistic work; a cinematograph film; and a sound recording. Under Section 2( o ), literary work would include computer programmes, tables and compilations including computer databases. For the purposes of the Act, Section H 14(1) enumerates what shall be a copyright which is an exclusive right, i i EASTERN BOOK COMPANY & ORS. v. D.B. MODAK&ANR. [NAOLEKAR,J.] subject to the provisions of the Act, to do or authorize the doing of the A acts provided in clauses (i) to (vii) in respect ofa work or any substantial part thereof in the case of a literary, dramatic or musical work, not being a computer programme. Section 2(k) defines the' government work' which would be a work which is made or published by or under the direction or control of, amongst others, any Court, Tribunal or other B judicial authority in India. By virtue of this definition, the judgments delivered by the Supreme Court would be a government work. Under Section 17( d), the Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright in a government work. In the absence of any agreement to the contrary, the government shall c be the first owner of the copyright in the judgments of the Supreme Court, the same being a government work under Section 2(k). Section 52(1) expressly provides that certain acts enumerated therein shall not constitute an infringement of copyright and sub-clause (iv) of clause ( q) excludes the reproduction or publication of any judgment or order of a D 'f Court, Tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the Court, the Tribunal or other judicial authority from copyright. The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright. The reproduction or publication of the judgments delivered by the Supreme Court by any number of persons would not be infringement of a copyright of the first owner thereof, namely, the Government, unless it is prohibited. The question, therefore, is whether by introducing certain inputs in a judgment delivered by a court it becomes "original copy-edited judgment" and the person or authority or company who did so could claim to have embodied the originality in the said judgment and the judgment takes the colour of original judgment having a copyright therein of its publisher.

14. In many cases, a work is derived from an existing work. G 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 H [2007] 13 (Addi.) S.C.R. A 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 & labour, and the creativity in the end-product is such as to create a new B copyright work to make the creator of the derivative work the author ofit; 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 C protection under the law of copyright.

15. It is submitted by Shri Raju Ramachandran, learned senior counsel for the appellants that Section 52( 1 )( q)(iv) of the Act does not bar the recognization of copyright in the copy-edited version of the text D of judgments of the courts as published in law reports. The Government is the first owner of copyright in the judgments of the courts as per Section 2(k) read with Section 17 and Section 52(1)(q)(iv) of the Act provides that>any person wanting to reproduce or publish judgments would not infringe .the copyright of the Government, but Section E 52(l)(q)(iv) does not imply that in case a person has expended independent skill, labour and capital on the judgments of the courts to creaJ:e and publish his version of the judgments, any other person is free to copy that person's version of the judgments, substantially or in its entirely. Copyright subsists in the copy-edited version of the text of F judgments of the courts as published in law reports, which have been created by the application of skill, labour and capital which is not trivial or negligible. The inputs put in the copy-edited judgments in sec, is a derivative literary work created from pre-existing material of the judgments of the court which is in public domain. The exercise of G independent skill, labour and capital in its creation by the author of such work, and the derivative literary work created by the expenditure of the independent skill, labour and capital of the appellants gives them copyright in such creations. It is not necessary that work created should have a literary merit. The courts can only evaluate whether the skill, labour and H capital actually employed, required in creating the work, is not trivial or EASTERN BOOK COMPANY & ORS. v. D.B.MODAK&ANR. [NAOLEKAR,J.] negligible. It is further urged by the learned senior counsel that in deciding A whether a derivative work qualifies for copyright protection, it must be ~-fi considered as a whole, and it is not correct to dissect the work into fragments and consider the copyrightability of each such fragment piecemeal and individually apart from the whole. He submits that the respondents if wish to reproduce or publish a work already in public B domain is obliged to go to the public domain/common source of such work rather than misappropriating the effort and investment of the appellants by copying the version of such work which was created by them by independent expenditure of skill, labour and capital. To buttress his submissions, the learned senior counsel placed reliance on various c foreign judgments and judgments of the Indian High Courts which are considered hereinafter.

16. Ladbroke (Football) Ltd. v. Wdlim Hill (Football) Ltd., (1964] 1 WLR273 (HL),isacasewheretheconceptoforiginalitywas D considered on the basis of skill,judgment and/or labour in the context of compilation. Since 1951 the respondents, who were well-known bookmakers, had sent their customers each week fixed odds football betting coupons arranged in a certain general fonn. In 1959 the appellants, who were also bookmakers, started sending out coupons closely E resembling the respondents' coupons. A coupon was a sheet of paper on which were printed several lists offc~comingrnatches. Beside each list were columns of squares on which the punter could indicate his forecast of the result of each match. Some of the lists included all the matches to be played; others included only a selection of them. The bets F varied in character. A great variety of bets was offered and the odds offered differed widely from 5-2 to 20,000-1. The respondents' coupon contained 16 lists, each with an appropriate name. The appellants' coupon, which contained 15 lists, closely resembled the respondents'. The lists offered by the appellants were almost identical with those G offered by the respondents in their corresponding lists. The respondents brought action claiming copyright in the coupons. The House of Lords was called upon to determine whether or to what extent copyright attached to these coupons. The respondents said that a coupon must be regarded as a single work and that as such it was protected by copyright. The H [2007] 13 (Addi.) S.C.R. A appellants sought to dissect the coupon. It was contended by the respondents that there had been a breach of copyright by the appellants, since the respondents' compilation, which must be regarded as a single work, was original and protected by copyright and the part taken by the appellants from the respondents' work was substantial. It did not follow B that because the fragments of the compilation, taken separately, would not be copyright, the whole could not be copyright. It was submitted by the appellants that the derivative work of the respondents not being original, no copyright can be claimed and the inputs put, if considered separately, are of insignificant value and thus the respondents could not C claim copyright. The word 'original' does not mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality ofideas, but with the expression of thought, D and in the case ofliterary work, with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work – that it should originate from the author; and as regards E compilation, originality is a matter of degree depending on the amount of skill, judgment or labour that has been involved in making the compilation. The words 'literary work' cover work which is expressed in print or writing irrespective of the question whether the quality or style is high. The commonplace matter put together or arranged without the F exercise of more than negligible work, labour and skill in making the selection will not be entitled to copyright. The word 'original' does not demand original or inventive thought, but only that the work should not be copied but should originate from the author. In deciding, therefore, whether a work in the nature of a compilation is original, it is wrong to G consider individual parts ofit apart from 1he whole. For many compilations have nothing original in their parts, yet the sum total of the compilation may be original. In such cases the courts have looked to see whether the compilation of the unoriginal material called for work or skill or expense. If it did, it is entitled to be considered original and to be protected against H those who wish to steal the fruits of the work or skill or expense by ·r EASTERN BOOK COMPANY & ORS. v. D.B. MODAK &ANR. [NAOLEKAR, J.] copying it without taking the trouble to compile it themselves. In each A case, it is a question of degree whether the labour or skill or ingenuity or expense involved in the compilation is sufficient to warrant a claim to originality in a compilation.

17. While considering the question whether the copyright protection B is available to the work created as a whole or the fragment of the work would be considered piecemeal and individually apart from the whole, the House of Lords said as under: " …. One test may be whether the part which he has taken is novel or striking, or is merely a commonplace arrangement of ordinary c words or well-known data. So it may sometimes be a convenient short cut to ask whether the part taken could by itself be the subject of copyright. Bfit, in my view, that is only a short cut, and the more correct approach is first to determine whether the plaintiffs' work as a whole is 'original' and protected by copyright, and then D to inquire whether the part taken by the defendant is substantial. 'Y A wrong result can easily be reached if one begins by dissecting the plaintiffs' work and asking, could section A be the subject of copyright if it stood by itself, could section B be protected if it E stood by itself, and so on. To my mind, it does not follow that, because the fragments taken separately would not be copyright, therefore, the whole cannot be ……. "

18. In the case of Walter and Another v. Lane, [1900] AC 539 (HL), the Earl of Rosebery on five occasions in 1896 and 1898 delivered to the public audience speeches on subjects of public interest. The Reporter of 'The Times' took down the speeches in shorthand, wrote out their notes, corrected, revised and punctuated them and the reports were published in 'The Tlilles, the speeches being given verbatim G as delivered by Lord Rosebery. The reporters were employed under the terms that the copyright in all reports and articles composed by 'The Time' magazine should belong to the proprietors. In the year 1899, the respondent published a book called – "Appreciations and Addresses: Lord Rosebery", which contained the reports of the above speeches of H SUPREMECOURTREPORTS [2007] 13(Addl.)S.C.R. A Lord Rosebery and it was admitted that these reports were taken from the reports in 'The Times'. Lord Rosebery made no claim. The appellants brought an action against the respondent claiming a declaration that a copyright of the articles and reports was vested in the proprietors of 'The Times'. The issue involved in the case was whether a person who B makes notes of a speech delivered in public, transcribes them and publishes in the newspaper a verbatim report of the speech, is the author of the report within the meaning of the CopyrightAct, 1842, and is entitled to the copyright in the report. The House of Lords held that each reporter is entitled to report and each undoubtedly would have a copyright in his C own published report. It was of course open to any other reporter to compose his own report of Lord Rosebery's speech, and to any other newspaper and book to publish that report; but it is a sound principle that a man shall not avail himself of another's skill, labour and expense by copying the written product thereof; and copyright has nothing to do D with the originality or the literary merits of the author or composer. It may exist in the information given by a street dictionary. If a person chooses to compose and write a volume devoid of the faintest spark of literary or any other merit, there is no legal reason why he should not, ifhe desires, become the first publisher ofit and register his copyright, E worthless and insignificant as it would be.

19. In the case of Designers Guild Ltd. v. Russell Williams (Textiles) Ltd., [2000] 1 WLR 2416 (HL), the plaintiff brought proceedings claiming that the defendant had infringed the plaintiff's F copyright by copying one of its fabric designs, i.e. for the fabric design Jxia. The infringement of which the plaintiff complained was that for the purpose of creating its own design Marguerite by the defendant. The defendant had copied a substantial part of Ixia. There were mainly two main issues at the trial. First, what, if anything had the designer of G Marguerite copied from lxia. Secondly, did what had been copied amount to "the whole or a substantial part" of lxia? It was said by the House of Lords that the law of copyright rests on a very clear principle that anyone who by his or her own skill and labour creates an original work of whatever character shall enjoy an exclusive right to copy that EASTERN BOOK COMPANY & ORS. v. D.B. MODAK&ANR. [NAOLEKAR,J.] work. No one else may for a season reap what the copyrjght owner had A sown.

20. University of London Press Limited v. University Tutorial Press Limited, [1916] 2 Ch 601, is perhaps the most cited judgment regarding originality. Originality was held to be not required to be nova! B form but the work should not be copied from other work, that is, it should be original. The judgment was based On the following facts: Certain persons were appointed as1 examiners for matriculation examination of the University ofLondon on a condition that any copyright in the examination papers should belong to the University. The University c assigned the copyright to the plaintiff company. After the examination, the defendant company brought out a publication containing a number of the examination papers, including three which had been set by two examiners appointed by the University. The plaintiff company brought a case of copyright infringement against the defendant company. It was D argued that since the setting of the papers entailed the exercise of y brainwork, memory," and trained judgment, and even the selection of passages from other author's work involved careful consideration, discretion and choice they constituted ohginal literary work. On the other and, the defendants claimed thafwh~t they had done was fair E dealing for the purposes of private study which was permissible under the law. The court agreed that the material under consideration was a literary work. The words 'literary work' cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high. The word 'literary' seems to be used in a sense somewhat similar F to the use of the word 'literature' in political or electioneering literature and refers to written or printed matter. With respect to the originality issue, the Court held that the term 'original' under the Act does not imply original or novel form ofideas or inventive thought, but the work must not be copied from another work – that it should originate from the G author.

21. In Kelly v. Morris, (1866) LR 1Eq.697, School of thought propounded is that, at least in respect of compilations, only time and expenses are necessary which is "industrious collection". The plaintiff was the owner and publisher of the first directory. The defendant came out with another directory. The plaintiff sought an injunction against the defendant to restrain the publication of the defendant's directory on the allegations that the defendant was guilty of appropriating the information contained in the plaintiff's directory and B obtained the benefit of many years of incessant labour and expense. The defendant, on the other hand, contended that there had been no unfair or improper use of the plaintiff's work. Information which was given in the plaintiff's directory was entitled to be used and adopted as long as he did not servilely copy it. The defendant had bestowed his independent C time, labour and expense on the matter and thus had in no way infringed the copyright of the plaintiff. Granting injunction, the Court held that in the case of a directory when there are certain common objects of information which must, if described correctly, be described in the same words, a subsequent compiler is bound to set about doing for himself D that which the first compiler has done. In case of a road-book, he must count the milestones for himself In the case of a map of a newly discovered island he must go through the whole process of triangulation just as ifhe had never seen any former map, and, generally he is not entitled to take one word of the information previously published without independently E working out the matter for himself, so as to arrive at the same result from the same common sources of information, and the only use that he can legitimately make of a previous publication is to verify his own calculations and results when obtained. The compiler of a directory or guidebook, containing information derived from sources common to all, which must F of necessity be identical in all cases if correctly given, is not entitled to spare himself the labour and expense of original inquiry by adopting and re-publishing the information contained in previous works on the same subject.

22. In the case of Parry v. Moring and Gollancz, Cop Cas (1901-1904) 49, the plaintiff, after obtaining permission from the representatives of the owner of certain letters, updated, chronologically arranged and translated them into modern English for their inclusion in his book. Later, the defendant published, as one of the series, an edition H of the letters prepared by the plaintiff. The plaintiff, therefore, brought -t EASTERN BOOK COMPANY & ORS. v. D.B. MODAK &ANR. [NAOLEKAR, J.] an action against the defendant alleging infringement of his copyright. A The plaintiff maintained his copyright in his version of the text apart from the copyright in the text. It was held that there is copyright in the work of editing the text of a non-copyright work. The editor of a non-copyright work is not entitled to take the text from the edition of a rival editor and use it as a copy for the purpose of his own work.

23. In Gopal Das v. Jagannath Prasad and Another, AIR 1938 All. 266, the plaintiffs were the printers and publishers of the books. The book titled "Sachitra Bara Kok Shastra" was printed for the first time in 1928 and had run into four editions since. The defendants C printed and published another book titled "Asli Sachitra Kok Shastra" in 1930. The plaintiffs' case was that the book published by the defendants was a colorable imitation of their book and an infringement of plaintiffs' copyright. It was held by the Court that the plaintiffs compiled their book with considerable labour from various sources and digested and arranged D the matter taken by them from other authors. The defendant instead of taking the pains of searching into all the common sources and obtaining his subject matter from them, obtained the subject matter from the plaintiffs' book and availed himself of the labour of the plaintiffs and adopted their arrangement and subject matter and, thus, such a use of E plaintiffs' book could not be regarded as legitimate. It was held that a person whose work is protected by copyright, ifhe has collected the material with considerable labour, compiled from various sources of work in itself not original, but which he has digested and arranged, the defendant could not be permitted to compile his work oflike description, · F instead of taking the pains of searching into all the common sources and obtaining the subject-matter from them and to adopt his arrangement with a slight degree of colourable variation thereby saving pains and labour which the plaintiff has employed. The act of the defendant would be illegitimate use. The Court held that no one is entitled to avail himself G of the previous labour of another for the purpose of conveying to the public the same information, although he may append additional information to that already published.

24. In V. Govindan v. E.M. Gopalakrishna Kone andAnother, H [2007] 13 (Addl.) S.C.R. A AIR 1955 Madras 391, the respondents had published an English- .English Tamil Dictionary in 1932. The appellants were the publishers of similar Dictionary in :. 947. An action was brought regarding: the publication and sale of the dictionary by the appellants which was alleged to be constituting an infringement of the respondents' copyright. The lower B court went through both the books minutely and found, "page after page, word after word, slavishly copied, including the errors, and found the sequence, the meanings, the arrangement and everything else practically the same, except for some 'deliberate differences' introduced here and there to cover up the piracy". The High Court referred to Copinger and C James on Law of Copyright wherein the law has been neatly summarized that : "In the case of compilations such as dictionaries, gazetteers, grcunmars, maps, arithmetics, almanacs, encyclopaedias and guide books, new publications dealing with similar subject-matter must of necessity resemble existing publications, and the defence of'common source' is D frequently made where the new publication is alleged to constitute an infringement of an earlier one." The Court held that in law books and in books as mentioned above there is very little amount of originality but the same is protected by law and "no man is entitled to steal or appropriate for himself the result of another's brain, skill or labour even in such E works." 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.

25. In C. Cunniah & Co. v Ba/raj & Co., AIR 1961 Madras 111, the appellant firm was carrying on the business in pictures, picture frames, etc. One Sri T.M. Subramaniam drew a picture of Lord Balasubramanya and gave it the title ofMayurapriya and a copyright was assigned to the appellant. It came to. the knowledge of the appellant G firm that the respondent firm was printing ;:ind selling copies of a close and colourable imitation of the appellant's picture under the style of Bala Murugan. The case of the defence was that their picture ·,vas an independent production and that the appellant had not acquired copyright in the picture and the subject dealt with in that picture was a common H subject, in which no copyrightcould be acquired by anyone. The Court EASTERN BOOK COMPANY & ORS. v. D.B. MODAK &ANR. [NAOLEKAR, J.] held that in order to obtain copyright production for literary, domestic, A -.A musical and artistic works, the subject dealt with need not to be original, nor the ideas expressed be something novel. What is required is the expenditure of original skill or labour in execution and not originality of thought. r

26. InAgarw'!la Publishing House v. Board of High School and Intermediate Education and Another,. AIR 1967 All. 91, a writ petition was filed by a publisher finn challenging an amendment of the Regulations of the Board declaring that copyright of the question papers set at all examinations conducted by the Board shall vest in the Board C and forbidding the publication of such question papers without the Board's permission. The question involved in the case was whether the question papers are' original literary work' and come within the purview of Section 13 of the Copyright Act, 1957. It was urged that no copyright can exist in examination papers because they are not' original literary work'. It D was held that the 'original literary works' referred to in Section 13 of the Copyright Act, 1957, are not confined to the works of literature as commonly understood. It would include all works expressed in writing, whether they have any literary merits or not. This is clear from the definition given in Section 2( o) of the Act which states that literary work E includes tables and compilations. The Court further held that the word 'original' used in Section 13 does not imply any originality of ideas but merely means that the work in question should not be copied from some other work but should originate in the author, being the product of his labour and skill.

27. In the case of Gangavishnu Shrikisondas v. Moreshvar Bapuji Hegishte and Others, ILR 13 Born 358, the plaintiff, a book seller, in 1984 brought out a new and annotated edition of a certain w~ll­ known Sanskrit work on religious observances entitled 'Vrtraj,' having for that purpose obtained the assistance of the pandits, .who re-cast and G re-arranged the work, introduced various passages from other old Sanskrit books on the same subject and added f9otn.otes.L~ter on, the defendant printed and published an edition of the same w9rk, the text ,J· I I: :.·'• .. of which is identical with that of the plaintiff's work, whic:h moreover •I •lll' ·I'. [2007] 13 (Addi.) S.C.R. A contained the same additional pages and the same footnotes, at the same places, with many slight differences. The foundation of both plaintiff's and defendant's books is an old Sanskrit work on Hindu ceremonial, which could have been published by anyone. The copyright claimed by the plaintiff was on the additions and alterations to the original text, B which the parties admit to be material and valuable, and in which the copyright is claimed of its prior publication. The defendants argued that there was nothing really original in the plaintiff's book and, therefore, he was not entitled to copyright in the book. It was held by the Court that a new arrangement of old matters will give a right to the protection C afforded by the law of copyright. If anyone by pains and labour collects and reduces it as a systematic compilation in the form of a book it is original in the sense that that entitles the plaintiff to the copyright. The plaintiff worked for such a new arrangement of old matters as to be an original work and was entitled to the protection; and that as the defendants D had not gone to independent sources of the material but had pirated the plaintiff's work, they were restrained by injunction.

28. In Rai Toys Industries and Others v. Munir Printing Press, 1982 PTC 85, the plaintiff had published a Tambola ticket book E containing 1500 different tickets in 1929. The plaintiffs alleged that the defendants had brought out another ticket book which the plaintiffs claimed to have written in 1929 and registered as copyright. The ticket book brought out by the defendants was alleged to contain 600 different tickets and the same had been copied identically from the books of the F plaintiff. On this basis, a suit for injunction and rendition of account was filed by the plaintiff. The question before the court was whether the ticket-books in the form of tables constitute literary work; and whether copyright has been violated or not? It was held by the High Court that preparation of tickets and placing them in tables required a good deul G of skill and labour and would thus satisfy the test ofbeing original literary work. It was recognized that the arrangement of numbers is individual work of a person who prepares it; it bears his individuality and long hours oflabour. It is not information which could be picked up by all and sundry. The preparation of tickets is an individualized contribution and H the compilation eminently satisfies the test of being an original literary EASTERN BOOK COMPANY & ORS. v. D.B. MODAK&ANR. [NAOLEKAR,J.] work. Hence it was held to be a clear case of copyright violation when A the defendant decided to pick and choose 600 tables on the sly and publish them as his individual work.

29. In Macmillan and Another v. Suresh Chandra Deb, ILR 17 Cal 952, the plaintiffs were proprietors of the copyright of a selection B of songs and poems composed by various authors, which was published in 1861. In 1889, the defendants published a book containing same selection of poems and songs as was contained in plaintiffs' book, the arrangement, however, being different. The plaintiffs claimed copyright in the selection made by them. The defendants, on the other hand, c contended that there could be no copyright in such selection. The Court held that in the case of works not original in the proper sense of the term, but composed of, or compiled or prepared from material which are open to all, the fact that one man has produced such a work does not take away from any one else the right to produce another work of the D same kind, and in doing so to use all the mat~rials open to him. But, as the law is concisely stated by Hall, V.C., in Hogg v Scott, L.R. 18 Eq. 444, , "the true principle in all these cases is, that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is, in fact, merely to take E away the result of another man's labour, or, in other words, his property." It is enough to say that this principle has been applied to maps, to road books, to guide books, to compilations on scientific and other subjects. This principle seems to be clearly applicable to the case of a selection of a poem. It was held that for such a selection as the plaintiffhad made F obviously required extensive reading, careful studying and comparison and the exercise of taste and judgment to make a selection for himself. But, if one spares himself this trouble and adopts some other person's selection, he offends against the principle. The Court was of the opinion that the selection of poems made by the plaintiff and embodied in the G Golden Treasury was the subject of copyright and that the defendant's book had infringed that right.

30. These decisions are the authority on the proposition that the work that has been originated from an author and is more than a mere H [2007] 13 (Addi.) S.C.R. A copy of the original work, would be sufficient to generate copyright. This approach is consistent with the "sweat of the brow" standards of originality. The creation of the work which has resulted from little bit of skill, labour and capital are sufficient for a copyright in derivative work of an author. Decisions propounded a theory that an author deserves to B have his or her efforts in producing a work, rewarded. The work of an author need not be in an original form or novel fonn, but it should not be copied from another's work, that is, it should originate from the author. The originality requirement in derivative work is tha~ it should originate from the author by application of substantial degree of skill, C industry or experience. Precondition to copyright is that work must be produced independently and not copied from another person. Where a compilation is produced from the original work, the compilation is more than simply a re-arranged copyright of original, which is often referred to as skill, judgment and or labour or capital. The copyright has nothing D to do with originality or literary merit. Copyrighted material is that what is created by the author by his skill, labour and investment of capital, maybe it is derivative work. The courts have only to evaluate whether derivative work is not the end-product of skill, labour and capital which is trivial or negligible but substantial. The courts need not go into evaluation E ofliterary merit of derivative work or creativity aspect of the same.

31. Mr. P N Lekhi, learned senior counsel appearing for the respondents in C.A. No. 647212004 has submitted that the judgment of the court is a government work as defined under Section 2(k)(iii) and F on account of Section 17 ( d), the Government in the absence of any agreement to the contrary be tJ1e first owner of the copyright therein. Section 52(1 )( q)(iv) provides that the publication of any judgment or order of a court, tribunal or other judicial authority, unless the reproduction of publication of such judgment ororderis prohibited, would not constitute G an infringement of the copyright ·Therefore, publication of the judgments of the apex court by the respondents would not tantamount to infringement of the copyright of the appellants. It is further urged that the judgments published in the Supreme Court Cases is nothing but merely a derivative work based upon the judgments of the court, which lacks originality as H it does not depict independent creation even a modicum of creativity. 'i EASTERN BOOK COMPANY & ORS. 'v. D.B. MODAK&ANR. [NAOLEKAR,J.] The inputs put by the appellants is nothing but expressing an idea which '1 'A "1 can be expressed in a limited way and as such there ~~t be a c6]JYrtght: 1.' Filling the blanks or gaps by providing hames of the parties or citati6ns of thejudgrnents, both of which are well known and unchangeable parts '· . ofthat idea, are not original work. These are notfcreative· at allto "1 warrant copyright protection, either singly or in combination. The additiolli; i· ·B ' ' made in the reported judgment by the editors of the Supreme Court" Cases are only the well known extensions of the reported decision. , These extensions lack even the minimal degree of author's creativity or originality or intellectual labour. These additions do riot create additional knowledge, the protection of which is the very basis of the copyright· C protection.

32. It is submitted by Ms. Pratibha M. Singh, learned counsel for the respondents in C.A. No. 6905/2004, that in the presep.t case, the journals of the appellants, including SCC, are printed and published on D the basis of pre-existing judgments. Journals are, therefore, a derivative . work. There is a distinction between a 'law report' as understood in., England and a 'law journal' as printed in India. The appellants' journal , . 'SCC' is not a law report in the strict sense, inasmuch as the appellants~ . journal reproduces the judgments of the court verbatim along with inputs. E However, a law report known in the traditional English sense is when a law reporter present in the court would record in his own words and language the arguments of the counsel on both sides, give a summary of the facts and incorporate into the said report his transcript of the speech of the Judge. Thus, the appellants' work could only be a law journal and F not a law report. The judgments were specifically made a part of the exception to copyright infringement and thus find place in Section 52(1 )( q) of the Act. The underlying purpose is that it is in public interest to place judgments in public domain. The work for which the copyright protection is claimed is a derivative work. For claiming protection of copyright in G a derivative work, under the Indian Jaw originality is a pre-condition and originality means only that the work was independently created by the author as opposed to copied from other works, and that it possesses at least some minimal degree of creativity. There is a distinction between creation and discove1y. The first person to find a particular fact has not H SUPREMECOURTREPORTS [2007] 13(Addl.)S.C.R. A created the fact, he or she has merely discovered its existence. Reporting of the judgments of the Supreme Court with certain inputs could only be said to be a discovery of facts already in existence. Though for the purposes of creativity neither novelty nor invention is requisite for copyright protection, but at least some minimal creativity is a must. To create a B copyright by alterations of the text, these must be extensive and substantial practically making a new version. The English decisions relied upon by the appellants would not apply to the facts of the present case as all the said authorities are under the old 1842 Act in U.K. wherein the word 'original' was conspicuously missing in the statute. It is further urged that C the copy-editing inputs of the appellants are only discoveries/facts and there are limited ways/unique of expressing the various copy-editing inputs and thus no copyright can subsist in such limited/unique expressions. The facts which are discovered could be expressed in limited ways and as such ways adopted cannot give copyright protection to the inputs or D the judgments as a whole. It is urged that recognizing the copyright in the copy-edited version of the law reports would amount to giving the appellants a monopoly in the judgments of the courts which is against the intendment of Section 52(l)(q)(iv) and would defeat the purpose of putting judgments in the public domain. It is submitted by the learned E counsel for the respondents that for a derivative work, the originality test as applied in United States Supreme Court should be made applicable whereby the author of a derivative work would satisfy that the work has been produced from his exercise of skill and judgment. The exercise of skill and judgment required to produce the work must not be so trivial F that it could be characterized a purely mechanical exercise. The work should be independently created by the author as opposed to copied from the other works and that it possesses at least some minimal degree of creativity. The case law relied upon by the learned counsel for the respondents is considered hereinafter.

33. In Feist Publications Inc. v. Rural Telephone Service Co. Inc., 18 USPQ 2d. 1275, Rural Telephone Service Co. publishes a typical telephone directory consisting of white pages and yellow pages. The white pages list in alphabetical order the names of rural subscribers H together with their towns and telephone numbers. The yellow pages list r y i EASTERN BOOK COMPANY & ORS. v. D.B. MODAK &ANR. [NAOLEKAR, J.] Rural's business subscribers alphabetically by category and feature A 'A classified advertisements of various sizes. To obtain white pages listings for its area-wide directory, Feist Publications Inc. approached different telephone companies operating in North West Kansas and offered to pay for the right to use their white pages listings. Of them, only Rural refused. Unable to license Rural's white pages listings, Feist used them B without Rural's consent. Rural sued for copyright infringement in the District Court ta1cing the position that Feist, in compiling its own directory, r could not use the information contained in Rural's white pages. Rural asserted that Feist's employees were obliged to travel door to door or conduct a telephone survey to discover the same information for c themselves. Feist responded that such efforts were economically impractical and, in any event, unnecessary because the information copied was beyond the scope of copyright protection. The United States Supreme Court held that the sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. Original, D as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. The requisite level of creativity is extremely low; even a slight amount will · suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. The Court further held that no one claim originality as to the facts. This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence. Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in What order to place them, and how to arrange the collected data so that they –.{ may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original. Thus, H [2007] 13 (Addi.) S.C.R. A if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expressfon. The Court goes on to hold that the primary objective of copyright is not to reward the labour of authors, but to promote the progress bf science and useful arts. To this end, copyright assures authors B the right to their original expression but encourages others to build freely upon the ideas and information conveyed by a work. Only the compiler's selection and arrangement may be protected; however, the raw facts may be"copied at will. The Court rejected the doctrine of the "sweat of the bro\V' as this doctrine had numerous flaws, the most glaring being c that it extended copyright protection in a compilation beyond selection and arrangement-the compiler's original contributions – to the facts themselves. A subsequent compiler was not entitled to take one word of information previously published, but rather had to independently work olit the matter for himself, so as to arrive at the same result from D the same common sources ofinformation. "Sweat of the brow" courts thereby eschewed the most fundamental axiom of copyright law that no one may copyright facts or ideas. The "sweat of the brow" doctrine flouted basic copyright principles and it creates a monopoly in public domain materials without the necessary justification of protecting-and E encouraging the creation of writings by authors.

34. The judgment in Matthew Bender & Co., Inc. v. West Publishing Co., 158 F.3d 674 (2nd Cir. 1998), is of United States Court of Appeals, Second Circuit, which directly covers the reports of F the jt1pgments of the courts. The facts involved in the case are that the West Publishing Co. and West Publishing Corp. ("West") obtain the text of judicial opinions directly from courts. It alters these texts into (i) independently composed features, such as syllabus, headnotes which summarize the specific points oflaw recited in each opinion and key G numbers which categorize points .oflaw into different legal topics and sub-topics and (ii) additions of certain factual information to the text of the opinions, including parallel or alternative citations to cases, attorney info1llliltion, and data on~if\Jsequent procedural history. West publishes the ca~e reports in different series of case reporters collectively known H as "National Reporter System". Two series of case reporters at issue in EASTERN BOOK COMPANY & ORS. v. . _.. ' \. .. ~ . . . / . . . . D.B.MODAK&ANR. [NAOLEKAR,J.] that c;ase we~.~ the Supr,eme Coup Reporter and theFedera!Reporter .. · A HyperLawpublishes and markets CD-RO Ms which are compilations of the Sup;eme Court and the Ucited St~tes Court of Appeals that cover ~ . ..J Lil … :J . i- · J • , approximately the same ground. Hyper Law intends to expand its CD- .. ~'!": ..•. ..__ _,1,l· •. '.~I· Jo – ., ROM product taking the material from the West publications;H)'.!Jerllaw ~ • I ' . i • -~ I , . intervened an.d ~?µght ~ judgnient 9~clarjng th<it the ind\ vi dual Wey;t case' B reports that are le.ft after redaction of the first category of alterations do . ., ' • , . ~ _. _, · 1 .. ' -.J · l ,not pontain cop:yi;ightabk:.m,~terial. I,t ;v11s held by the Court that for _ cogy,9gbtPro,t~\i}~n.}\le,pi,~t_e.,rjal, ~oespot require novelty orin".ention, b~t mi11~m,~l ~r~ath51)jiJ, r~Jl~ire,~;All of)Vest's ~lteration~,to judicial , · opiJJi<:>n~ in:-,;qlvf,thrL~~!tiolJ, and,~rrangem~nt of facts,. or:the . C ~~at"[~f?,~~n.! ?fdata. al!~ady i~c;lu~t<d in the opinions, ~g, .the.ref we, . , ~y cre~t\y\!{' 1 ip th~~~·~l~ment;5 of West's case reports lies in West's ; . ~l~tion an4 ~~men~ of 1¥,s information. West's choices on selection and arr,a!(ge~er:it_can rea,sonably be v_iewed as obvious, typical and , l_ac~? t;:~~n minimal creatjy~ty., ~op~glit protection is unavailable for D . ,both derivative works and compilatiof\S alike unless, when analysed as .. ~ I : \ J… ' -l' ' • . – . . ' . • ~ wpo~~1 ~eY,. ~~pla~ ~~ci~nt origina.Jjty so as_ to amount to an original work of authorship. Originality requires only thitl lJ:i~ autho.r makes the selection or arrangement independently and that it displays some material · Withminllncil level of creativity:1While dcopy of~oin~thing in the public E domain•'wilPhot, if'hil5e:.rnerely :a copy; support a copyright, a distinguishable variation Will. To support a copyright there must be at least some substantial variation, rlotmerely a trivial variation such as ·•might occur in the translation to a different medium. Creativity ill' $election and arrangement, therefore, is a function of (i) the total number of options F available, (ii) external factod thatlnmt the viability of certain options and render others non-creative, and(iii) prioruseSthat render certain selections l '. ·at…1t…….."' ; … ti' · ,.,_'·1 1,· ;~ ' . 1 1' r … l· ·1, ·1ILI -'' g uocu vane.;. · '· ·· · •·'I rir' • …… )iJtt0· .. -~11.rP·.-··n< ')1 ·: n·\·,'-'/l_!i '·"'j• .. ·; – Jf p – , , , : , 3 .5 .. Jp., the ~~e .9flf t;y1P11;~/jcatio/is, [n.<fr v.,Chinatow.n .'(oday , G . PubliSh,ingEnterp_ris.es, Inc. ;.94 5 F2d.509, Key Publication Pllblishe.d r , -.·/ '.f~ . .. ·. •' '·.}1.Jl • ,,·.$..1,;, · ··I· -.:- '"'. _ iinAnmial ClassifiedBusines,'1,Directoi:y.for New,York Qity.:s,Chjnese- ' I .,J !," _,,_ …… , – ;_… . Ame~~\ill cc;m1?1~o/·. ~- 1,?,991 qal,qre PuqliC£l~912P!lbl\shed the.Galore. Directory, a.classified directory forthe NewYorkChinese.American l(: ·t:·· '. t~_ … Uii….t .oi•..1.! .• • "'–•'• -~ … ~::~ •·""-::,·—·~- •H [2007] 13 (Addl.) S.C.R. A community. Key brought a suit against Galore Directory charging that Galore Directory infringed Key's copyright in the 1989-90 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 B to qualify for copyright protection : (1) the collection and assembly of pre-existing data; (2) selection, co-ordination or arrangement of the data; and (3) the resulting work that comes into being is original, by virtue of the selection, coordination or arrangement of the data contained in the work. For originality, the work is not required to contain novelty. C 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 D 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 compiler. The court discarded "sweat of the brow" notion of copyright law. 36. In Macmillan and Company v. K. and J. Cooper, 1924 Privy Council 75, action was brought by McMillan and Company to restrain the respondent-firm who was carrying on the trade and business of publishers of educational books, from printing, distributing or otherwise disposing of copies of the book published by the appellants. The ground F on which the relief was claimed was that the appellants had a copyright in the book entitled "Plutarch's Life of Alexander, Sir Thomas North's Translation and that the respondent published subsequently a book entitled "Plutarch's Life of Alexander the Great, North's Translation", as it had infringed the copyright to which the appellants were entitled in the earlier G compilation. The Court noted the contents of the book of the appellants as also that of the respondent. As per the Court, the text of the appellants' book consisted of a number of detached passages, selected from Sir Thomas North's translation, words being in some instances introduced to knit the passages together so that the text should as far as possible, 'r EASTERN BOOK COMPANY & ORS. v. D.B. MODAK&ANR. [NAOLEKAR,J.] present the form of an unbroken narrative. The passages so selected A were, in the original translation, by no means contiguous. Considerable printed matter in many instances separated the one from the other. The opinion of the Privy Council was that for the work done by the appellants, great knowledge, sound judgment, literary skill or taste in the inputs brought to bear upon the translation was not required, as the passages B of the translation which had been selected are reprinted in their original form, not condensed, expanded, modified or reshaped to any extent whatever. The Court observed that the North's translation of Plutarch's Life of Alexander does not and never did, as the law stands, never can enjoy the protection of copyright; and the questions which arise for C decision must be dealt with upon that assumption. The Court said that in all cases where the reprint with the text of it consisted merely of a reprint of passages selected from the work of any author, would never have a copyright. There may be cases where selecting and reprinting the passages would require the appreciation upon what has been laid down D or established in the book and labour, accurate scientific knowledge, sound judgment, touching the purpose for which the selection is made, and literary skill would all be needed to effect the object in view. In such a case, the copyright might well be acquired for the print of the selected passages. The Court said that it is the product of the labour, skill and E capital of one man which must not be appropriated by another, not the elements, the raw material, upon which the labour and skill and capital of the first have been expended. To secure copyright for this product, it is necessary that the labour, skill and capital expended should be sufficient to impart to the product some quality or character which the F raw material did not possess and which differentiates the product from the raw material. The Court approved the principles enunciated in the case of University of London Press, Ltd. v. University Tutorial Press, Ltd., [1916] 2 Ch. 601, dealing with the meaning of the words 'original literary work' that the original does not mean expression of original or inventive thought. The Copyright Act is not concerned with the original ideas, but with the expression of thought. The originality which is required relates to expression of thought and the Act does not require that the expression must be in original or novel form. The work H [2007] 13 (Addi.) S.C.R. A must not be copied from another work – that it should originate from the author. · 3 7. The Supreme Court of Canada in the matterof CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 (1) SCR 339 (Canada) B has noticed the competing views on the meaningof'original' in copyright law wherein some courts have held that awork which has originated from an author and is more than a mere copy of a work, is sufficient to give copyright. This approach is held to be consistent with the 'sweat of the brow' or 'industriousness' standard of originality on the premise that C an author deserves to have his or her efforts in producing a work rewarded. Whereas the other courts have held that a work must be creative to be original and thus protected by the copyright Act, which approach is consistent with a natural rights theory of property Jaw; however, it is Jess absolute in that only those works that are the product of creativity will D be rewarded with copyright protection and it was suggested in those decisions that the creativity approach to originality helps ensure that copyright protection is extended to the expression of ideas as opposed to the underlying ideas or facts. The Court has also noticed that those cases which had adopted the sweat of the brow approach to originality E · should not be interpreted as concluding that labour, in and of itself, wo'uld be a ground for finding of originality. The question for consideration of the copyright has arisen on the following fact foundation. The appellant, Law Society of Upper Canada, has maintained and operated the Great Library at Osgoode Hall in Toranto, a reference and research library. F The Great Library provides a request-based photocopy service for Law Society members, thejudiciary and other authorized researchers. Under the custom photocopy service, legal materials are reproduced and delivered to the requesters. The Law Society also maintains self-service photocopiers in the Great Library for use by its patrons. The respondents, G CCH Canadian Ltd., Thomson Canada Ltd. and Canada Law Book me. publish law reports and other legal materials. The law book publishers commenced copyright infringement action against the Law Society claiming ownership of copyright in 11 specific works on the ground that the Law Society had infringed copyright when the Great Library H reproduced a copy of each of the works. The publishers further sought t., EASTERN BOOK COMPANY & ORS. v. D.B. MODAK &ANR. [NAOLEKAR, J.] permanent injunction prohibiting the Law Society from reproducing these A 11 works as well as any other works that they published. The Law Society denied liability and submitted that the copyright is ~ot infringed when a single copy of a reported decision, case summary, statute, regulation or a limited selection of text from a treatise is made by the Great Library staff or one of its patrons on a self-service photocopier B for the purpose of research. The Court was called upon to decide the question as to what shall be the originality in the work of compilation. On consideration of various cases, it was held that to be original under the CopyrightAct the work must originate from an author, not be copied from another work, and must be the product of an author's exercise of C skill and judgment The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely inechanical exercise. Creative works by definition are original and are protected by copyright, but creativity is not required in order to render a work original. The original work should be the product of an exercise D of skill and judgment and it is a workable yet fair standard. The sweat of the brow approach to originality is too low a standard which shifts the balance of copyright protection too far in favour of the owner's right, and fails to allow copyright to protect the public's interest in maximizing · the production and dissemination of intellectual works. On the other E hand, the creativity standard of originality is too high. A creative standard implies that something must be novel or non-obvious – concepts more properly associated with patent law than copyright law. By way of contrast, a standard requiring the exercise of skill and judgment-in the production of a work avoids these difficulties and provides a workable F and appropriate standard for copyright protection that is consistent with the policy of the objectives of the Copyright Act. Thus, the Canadian Supre~e Court is of the view that to claim copyright in a compilation, the author must produee a material with exercise ofhis skill and judgment G which may not be creativity in the sense that it is not novel or non- obvious, but at the same time it is not the product of merely labour and capital. 38. It is the admitted position that the reports in the Supreme Court Cases (SCC) of the judgments of the Supreme Court is a derivative H ====————- — — ——– [2007] 13 (Addi.) S.C.R. A work in public domain. By virtue of Section 52(1) of the Act, it is expressly provided that certain acts enumerated therein shall not constitute an infringement of copyright. Sub-clause (iv) of clause (q) of Section 52(1) excludes the reproduction or publication of any judgment or order of a Court, Tribunal or other judicial authority, unless the reproduction B QI' publication of such judgment or order is prohibited by the Court, the Tribunal or other judicial authority from copyright. The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright. That being the position, the copy-edited judgments would not satisfy the C copyright merely by establishing amount of skill, labour and capital put in the inputs of the copy-edited judgments and the original or innovative thoughts for the creativity are completely excluded. Accordingly, original or innovative thoughts are necessary to establish copyright in the author's work. The principle where there is common source the person relying D on it must prove that he actually went to the common source from where he borrowed the material, employing his own skill, labour and brain and he did not copy, would not apply to the judgments of the courts because there is no copyright in the judgments of the court, unless so made by the court itself. To secure a copyright for the judgments delivered by the E court, it is necessary that the labour, skill and capital invested should be sufficient to communicate or impart to the judgment printed in sec some quality or character which the original judgment does not possess and which differentiates the original judgment from the printed one. The Copyright Act is not concerned with the original idea but with the F 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 G comes into being should be original in the sense that by virtue of selection, co-ordination 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 Indian Copyright Act, 1957, we think that the principle laid down by the Canadian Court would be applicable H in copyright of the judgments of the Apex Court. We make it clear that y EASTERN BOOK COMPANY & ORS. v. D.B. MODAK &ANR. [NAOLEKAR, J.] the decision of ours would be confined to the judgments of the courts A 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 B 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 authur. 39. On this touchstone, we shall take into c-0nsideration the inputs put by the appellants in their journal 'SCC'. The appelbnts have added c in the copy-edited version the cross-citations to the ;;itatiun(s) already given in the original text; added names of cases and c:wss-citations where only the citation of the case is given; added citation and cross- citations where only name of the case is given; inserted citation in case history where only the title and year of the impugned/earlier order is given; presented in their own style the cases when they are cited repeated in the judgment; provided precise references to the quoted matter in the judgment by giving exact page and paragraph number as in the original E case source/treatise/reference material; added margin headings to quoted extracts from statutes/rules, etc., when they are missing from the original text of the judgment; added the number of the Section/Rule/ Article/ paragraph to the extract quoted in the original text; added the names of Judges on whose behalf opinion given by giving expressions such as "for F himself and Pathak, C.J." etc.; done verification of first word of the quoted extract and supplied emphasis on such verification; added ellipsis " … "to indicate breaks in quoted extract; provided and supplied the matter inadvertently missed in quoted extracts in the original text of the judgment; completed/corrected the incomplete/incorrect case names or G citations; renumbered correctly the clauses/sub-clauses in terms of the questions framed which were numbered in terms of answers to questions framed by learned Judge; changed the text as per corrigenda issued, which has been issued upon SCC Editor's request and suggestions; [2007] 13 (Addl.) S.C.R. A done compres.singlsimplification ofinfonnation relating to the case history; followed certain norms at SCC for giving case names; omitted the words t · like "Section'', "Sec.", "Rule", etc. and given only the number of the Section/mle at the beginning of the quoted extract; made margin heading and the first clause/sub-section or initial matter of section/rule etc. to B run-on instead of being let to start from a fresh line; done compressing of unquoted referends and use of*** for parts; replaced the series of dots in the raw text with ellipsis; removed abbreviations such as sec., R., cl. and substituted them with full word, i.e. Section, Rule,.Glause; added hyphenation after the section/rule numbers which hav.e a).phabets suffixed C to them; applied indentation of quoted extracts; removed full stops or word ''No."; and given full forms of abb.reviations to enhance readability and clarity. In addition to the above, capitalization and italicization is also made wherever necessary in the raw text; and punctuati:on, articles, spellings and compound words are also checked and corrected, if D required, .in the original text. 40. The aforesaid inputs put by the appellants in the judgments y would have had a copyright had we accepted the principle that any one who by his or her own skill and labour creates an original work of E whatever character, shall enjoy an exclusive right to copy that work and no one else would be permitted to reap the crop what the copyright owner had sown. No doubt the appellants have collected the.material and improved the readability of the judgment by putting inputs in the original text of the judgment by considerable labour and arranged it in F their own style, but that does not give the flavour of minimum requirement of creativity. The exercise of the skill and judgment required to produce the work is trivial and is on account of the labour and the capital invested and could be characterized as purely a work which has been brought about by putting some amount oflabour by the appellants. Although for G 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 ofthe facts or data or the case law is r· already included in the judgment of the court. Therefore, creativity of EASTERN BOOK COMPANY & ORS. v. D.B. MODAK &ANR. [NAOLEKAR, J.] sec would only be addition of certain facts or material already published, A case law published in another law report and its own arrangement and presentation of the judgment of the court in its own style to make it more user- friendly. The selection and arrangement can be viewed as typical and at best result of the labour, skill and investment of capital lacking even minimal creativity. It does not as a whole display sufficient originality B 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 available and ari author selects one of them which can be said to be a garden variety. Novelty or invention or innovative idea is not the c requirement for protection of copyright but it does require ininimaI 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. .D 41. However, the inputs put in the original text by the appellants in (i) segregating the existing paragraphs in the original text by breaking them into separate paragraphs; (ii) adding internal paragraph numbering within a judgment after providing uniform paragraph numbering to the multiple judgments; and (iii) indicating in the judgment the Judges who E have dissented or concurred by introducing the phrases like 'concurring', 'partly concurring', 'partly dissenting', 'dissenting', 'supplementing', 'majority expressing no opinion', etc., have to be viewed in a different light. The task of paragraph numbering and internal referencing requires skill and judgment in greatmeasme. The editor who inserts para numbering F must know how legal argumentation and legal discourse is conducted and how a judgment of a court oflaw must read. Often legal arguments or conclusions are either clubbed into one paragraph in the original judgment or parts of the same argument are given in separate paragraphs. It requires judgment and the capacity for discernment for determining G whether to carve out a separate paragraph from an existing paragraph in the original judgment or to club together separate paragraphs in the original judgment of the court. Setting of paragraphs by the appellants of their own in the judgment entailed the exercise of the brainwork, reading and understanding of subject of disputes, different issues involved, H [2007] 13 (Add!.) S.C.R. A statuto1y provisions applicable and interpretation of the same and then dividing them in different paragraphs so that chain of thoughts and process of statement of facts and the application of law relevant to the topic discussed is not disturbed, would require full understanding of the entire subject of the judgment. Making paragraphs in a judgment could not be B called a mechanical process. It requires careful consideration, discernment and choice and thus it can be called as a work of an author. Creation of paragraphs would obviously require extensive reading, careful study of subject and the exercise of judgment to make paragraph which has dealt with particular ac;pect of the case, and separating intermixing of a C different subject. Creation of paragraphs by separating them from the passage would require knowledge, sound judgment and legal skill. In our opinion, this exercise and creation thereof has a flavour of minimum amount of creativity. The said principle would also apply when foe editor has put an input whereby different Judges' opinion has been shown to D have been dissenting or partly dissenting or concurring, etc. It also requires reading of the whole judgment and understanding the questions involved and thereafter finding out whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and partially agreeing to the view on a particular law point or even on facts. In these E inputs put in by the appellants in the judgments reported in SCC, the appellants have a copyright and nobody is permitted to utilize the same. 42. For the reasons stated in the aforesaid discussion, the appeals are partly allowed. The High Court has already granted interim relief to F the plaintiff-appellants by directing that though the respondent-defendants shall be entitled to sell their CD-ROMS with the text of the judgments of the Supreme Court along with their own head notes, editorial notes, if any, they should not in any way copy the head notes of the plaintiff- appellants; and that the defendant-respondents shall also not copy the G footnotes and editorial notes appearing in the journal of the plaintiff- appellants. It is forther directed by us that the defendant-respondents shall not use the r.!fagraphs made by the appellants in their copy-edited version for internal references and their editor's judgmer.t regarding the opinions,expressed by the Judges by using phrase~ like, 'concurring', H 'partly dissenting', etc. on the basis of reported judgments in SCC. The EASTERN BOOK COMPANY & ORS. v. D.B. MODAK &ANR. [NAOLEKAR, J.] judgment of the High Court is modified to the extent that in addition to A the interim relief already granted by the High Court, we have granted the above-mentioned additional relief to the appellants. 4 3. In view of the decision rendered by us in the civil appeals, we do not think it necessary to pass any order on the contempt petition. The B contempt petition stands disposed of accordingly. 44. There shall be no order as to costs. S.K.S. Appeals Partly allowed and contempt petition disposed of. C