IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 RFA.No. 240 of 2004() --------------------------- OS.8/1997 of I ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANT/PLAINTIFF: ----------------------------- P.UNNIKRISHNAN @ MADURIMA UNNIKRISHNAN, S/O. GOPALAN NAIR, KONATTUPARAMBIL, KANNANKULANGARA, THEKKUMBHAGAM VILLAGE, KANAYANNOOR TALUK. BY ADVS. SRI.V.K.BALACHANDRAN SRI.SAJI VARGHESE KAKKATTUMATTATHIL RESPONDENT(S): DEFENDANTS: -------------------------------------- * 1. LOHITA DAS, SANTHINIKETHAN, THOTTAKKATTUKARA, ALUVA VILLAGE, ALUVA TALUK. (DIED) 2. SATHYAN ANTHIKKAD, CINI DIRECTOR, MARAVATHIKKAL HOUSE, ANTHIKKAD P.O., THRISSUR. 3. GRIHALAKSHMI PRODUCTIONS, K.T.C. BUILDINGS, YMCA ROAD, CALICUT. 4. KALPAKA RELEASE, K.T.C. BUILDINGS, YMCA ROAD, CALICUT. * ADDL. R5 TO R7 IMPLEADED 5. SINDHU, AGED ABOUT 48, W/O. LATE LOHITA DAS, SANTHINIKETHAN, GCDA HOUSING COLONY, THOTTAKKATTUKARA, ALUVA, ERNAKULAM. 6. HARIKRISHNAN, AGED ABOUT 27, S/O.LATE LOHITA DAS,-DO- 7. VIJAY SANKAR, AGED ABOUT 25, S/O.LATE LOHITA DAS, -DO- * LEGAL REPRESENTATIVE OF THE DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL. R5 TO R7 AS PER ORDER DATED 10/08/2010 IN I.A. NO.2809/2009. R2 TO 4 BY ADV. SRI.T.G.RAJENDRAN THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/11/2011, THE COURT ON 30/11/2011 PASSED THE FOLLOWING: svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 240 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2011. JUDGMENT The plaintiff, whose action for infringement of copy right was dismissed by the court below, is the appellant. 2. The plaintiff, a 'Kadhikan' by profession claims to be the author of 'Keerthana Pakshikal'. He used to perform the art of 'Kadhaprasangam' in relation to the said story in different venues from 1981 onwards. He has many other works to his credit. The first defendant is a script writer and the second defendant is a director and the third defendant is the producer. They produced a film by name 'Thooval Kottaram' of which the fourth defendant is the distributor. The allegation of the plaintiff is that the story of 'Thooval Kottaram' is exactly similar to the story of which he is the author, namely 'Keerthana Pakshikal'. Accusing the defendants of piracy, the suit was laid. R.F.A.240/2004. 2 3. The first defendant filed a written statement, wherein he denied all the allegations against him. He denied that he had ever come across with 'Keerthana Pakshikal' and disputed that there was any copying of the portions of the story coined by the plaintiff in the movie of which the first defendant is the script writer, namely, 'Thooval Kottaram'. He disputed that Mr. M.S.Thripunithura had handed over the the script to him and he had copied the script for his film. The first defendant is claimed to be a renowned script writer and director of cinematographic films. According to him, it was not necessary for him to pirate the story of the plaintiff. He had never come across the so-called story of the plaintiff. He denied of having anything to do with the story of the plaintiff. 4. The second defendant filed the written statement adopting the contentions of the first defendant. Defendants 3 and 4 filed a separate written statement in R.F.A.240/2004. 3 that they challenged the maintainability of the suit. They also disputed the contentions in the plaint. 5. On the basis of the above pleadings issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Exts.A1 to A15 series from the side of the plaintiff. The defendant was examined as D.W.1. On an evaluation of the evidence, the trial court came to the conclusion that the plaintiff has miserably failed to establish any infringement of copy right and dismissed the suit. 6. The only question that arises for consideration is whether the first defendant is guilty of infringement of copy right of the plaintiff's work 'Keerthana Pakshikal'. The facts fall within a very narrow compass. The plaintiff, a 'Kadhikan' by profession was the author of the work 'Keerthana Pakshikal' which he had performed in several venues and he had many other works to his credit. He would say that he had met Mr. M.S. Thripunithura and R.F.A.240/2004. 4 handed over the script of 'Keerthana Pakshikal' to Mr. M.S. Thripunithura so as to see if he could impress upon any persons in the cine world to have a film made out of the story. The further allegation is that Mr. M.S. Thripunithura had shown the script of 'Keerthana Pakshikal' to the first defendant and the first defendant had made a film out of it without the consent of the plaintiff. He therefore alleges that the defendants are guilty of infringement of copy right. 7. The defendants denied the allegations made by the plaintiff and according to them they have no occasion to come across the script of 'Keerthana Pakshikal' said to have been written by the plaintiff. 8. Learned counsel appearing for the appellant pointed out that the court below was not justified in dismissing the suit especially in the light of the evidence furnished by P.Ws. 2 and 3. Learned counsel contended that P.W.2, a renowned cine artist, would not have said falsehood before the court below for the reason that by doing so, he R.F.A.240/2004. 5 causes injury to himself by not being called to act in films. The evidence of P.W.2 is to the effect that the script written by the plaintiff was shown to the first defendant and P.W.2 also says that the script of the film 'Thooval Kottaram' is substantially similar to the script of 'Keerthana Pakshikal'. P.W.3 who had occasion to watch both the works has given evidence that the story of 'Thooval Kottaram' is substantially the same as that of 'Keerthana Pakshikal'. These items of evidence, according to learned counsel, are sufficient to establish infringement of copy right. In support of his contention, learned counsel relied on the decisions reported in R.F. Anand v. Delux Films (AIR 1978 SC 1613), Abraham v. Sadanandan (1979 K.L.T. 493) and Madhavan v. S.K. Nayar (1987 (2) K.L.T. 47). 9. Learned counsel appearing for the respondents on the other hand pointed out that there is nothing to show that the defendants had even come across with the script of 'Keerthana Pakshikal' said to have been written by the R.F.A.240/2004. 6 plaintiff and the evidence of P.W.2 is far from satisfactory in that regard. According to the learned counsel, there is absolutely no evidence to show that the first defendant had any occasion to see the script of the plaintiff and it was also pointed out that it was unnecessary for the first defendant to copy the script of the plaintiff, for, he himself was a renowned script writer and had earned many lorals in the field. Learned counsel went on to point out that there is no copy right infringement of an idea. The copy right is in respect of the arrangement of ideas and expressions and by no stretch of imagination it could be said that the work 'Keerthana Pakshikal' and 'Thooval Kottaram' are identical. There are vast differences between the two and two operate in two distinct and different fields. Learned counsel drew the attention of this court to the evidence of P.W.1 and contended that except the idea, there was no actual script of 'Keerthana Pakshikal' and the 'Kadhikan' adds materials so as to cater to the needs of the audience. R.F.A.240/2004. 7 Cinematographic film is an entirely different scenario and it has no comparison to a 'Kathaprasangam'. Pointing out that the court below has correctly appreciated the facts and evidence in the case, it was contended that there is no merit in the appeal and it is only to be dismissed. 10. The primary function of the copyright law is to protect the fruits of a man's work, labour, skill or taste from annexation by other people. It intends to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow public access to the products of their genius. However, it needs to be noticed that there is no common law of copy right and is infact a pure statutory right. The right which a person acquires in a work being the result of his intellectual labour is called copyright. Copyright is regarded as a form of property worthy of special protection and it is covered by a statute. R.F.A.240/2004. 8 11. A reproduction of an artistic work or substantial part of an artistic work will constitute an infringement of copyright. It is a fundamental axiom of copyright law that there is no copyright for ideas. It is the expression of the idea which is protected by the law of copy right. It is said that the purpose of the copy right law is not to create a monopoly in respect of ideas but to extend protection to the authors, artists and craftsmen in the field of literature and fine arts. The objective is to protect the author and artist from an unlawful reproduction of his works and exploitation of his art by another person and copy right discourages piracy of the art and not the piracy of the ideas of the author or artist. Where the same idea is developed in a different manner, similarities are bound to occur. In such a case, the courts are called upon to determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted by the author of R.F.A.240/2004. 9 the work. There is a clear distinction between an idea and expression of the idea. 12. It is by now well established that in order to establish infringement of copyright, the following two elements must be present: (i)there must be sufficient objective similarity between the infringing work and the copyright work, or a substantial part thereof, for the former to be properly described as identical with but as a reproduction or adaptation of the latter, (ii) the copyright work must be the source from which the infringing work is derived. However, mere similarity is not enough as it may be due to (i) mere chance, (ii) both works being taken from a common source etc. As is usually stated, what is protected by the Copy Right Act is not the original thought or information, but the original expression of thought or information in some concrete form. The defendants must have made a substantial use of this form, and he is not liable if he has taken from the work the essential ideas, however R.F.A.240/2004. 10 original it may be and expressed the idea in his own form or used the idea for his own purposes. According to various decisions and the authors on the subject, 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 after having read 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 work. However, it needs to be noticed that violation of the copy right does not arise where the theme is the same but the presentation and treatment of the theme is different so that subsequent work appears to be completely a new work. 13. It may now be appropriate to refer to the decisions cited by the learned counsel for the appellants. 14. In the decision reported in R.G.Anand's case (supra) in paragraph 46 it was held as follows: “46. Thus,on a careful consideration and elucidation of the various authorities and the case R.F.A.240/2004. 11 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 legendry facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. 2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there, it would amount to violation of the copyright. In other words, in order to be actionable the 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 R.F.A.240/2004. 12 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 coy of the original. 4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. 5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. 6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above. 7. Where, however, the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is R.F.A.240/2004. 13 manifest that unlike a stage play a film has a much broader perspective, 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.” 15. In the decision reported in Abraham's case (supra) it was held as follows: “S.51 of the Act provides that copyright of a work shall be deemed to be infringed when any person does anything the exclusive right to do which is by the Act conferred upon the owner of the copyright. Exclusive right referred to therein is what is stated in clauses (i) to (viii) of S.14(1) (a). What is protected is not the original thought or idea, but the original expression of thought or information in some concrete form. It is an infringement only if the defendant has made an unlawful use of the form in which the thought or R.F.A.240/2004. 14 information is expressed. He must be shown to have made a substantial use of this form and he is not liable if he has taken from the work the essential idea however original, and expressed the idea in his own form or used the idea for his own purposes. What is required to make out a case of infringement is that on reading the screen play and dialogue one must get an impression that this is the reproduction of the drama. Such is not, the case here.” 16. In the decision reported in Madhavan's case (supra) it was held as follows: “There can be no copyright in an idea, subject-matter, themes, plots or historical or legendry facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. 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 R.F.A.240/2004. 15 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. 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. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. 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 R.F.A.240/2004. 16 the copyright comes into existence. 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. 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 perspective, 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. In this case, there is nothing to indicate that the film is substantially or materially a copy of the novel of the plaintiff. There is no resemblance or similarity in the themes, scenes or situations in the film. Material incidents, situations and scenes portrayed in the film are substantially and R.F.A.240/2004. 17 materially different from the situations,incidents and scenes portrayed in the novel Alayazhi of the plaintiff. Mere introduction of some changes here and there in order to disguise the attempt at plagiaris or interchanges of relative position in which the principal actors stand to create an impression that the story of the film is entirely different is not sufficient to rule out the theory of colourable imitation. The safest test to determine whether or not there has been a violation of copyright is to find out if the reader, spectator or viewer after having read or seen both the works can get an impression that the impugned work or film is an imitation of the other. No prudent man who has seen the film and read the novel will come with an impression that the former is an imitation of the latter. In the circumstances, there is no infringement of the copyright of the plaintiff.” 17. Based on the above decisions, it was contended that the evidence of P.Ws. 2 and 3 are sufficient R.F.A.240/2004. 18 to show that there has been a clear infringement copyright which was owned by the plaintiff. 18. The court below found the evidence of P.Ws.2 and 3 to be totally insufficient to come to such a conclusion. 19. One may now refer to the evidence in the case. P.W.1 is the plaintiff himself. In chief examination, he narrates the story of his work 'Keerthana Pakshikal'. The court below has extracted the same in its judgment and it is unnecessary to burden the judgment with the same matter. The court below has noticed that even according to P.W.1 there is no strict pattern of the expression of the story in various venues and modifications and improvements are made depending upon the nature of audience. 20. Strong objection is taken to the above observation of the lower court by the plaintiff and it is contended that there is a basic story and what was meant by P.W.1 was only that slight variations may occur depending upon the nature of audience. R.F.A.240/2004. 19 21. The question as to whether what was intended by P.W.1 may not be of much relevance in the present context. He would say that he entrusted the manuscript, namely, Ext.A4 to P.W.1 in 1991 with a request to show to anyone in the cinema field so as to ascertain whether the script could be adopted for a cinematographic film. Evidence of P.W.1 is to the effect that he was given to understand that P.W.2 had shown the script to several persons and he was given to understand that some of them suggested certain modifications and variations so as to consider it as a script for making a cinematographic film. In cross examination P.W.1 says that P.W.2 did not mention the persons to whom he had shown Ext.A4. In fact the date of entrustment is stated as 5.12.1991. He would say that he happened to see the film 'Thooval Kottaram'. His definite case in chief examination was that on the next date, that is, on 30.12.1992 he had met the cine artist M.S.Thripunithura and informed him about the similarity between the script of R.F.A.240/2004. 20 the movie 'Thooval Kottaram'. He was given to understand by P.W.2 that P.W.2 had shown the script to several people. He then says that the endorsement found on Ext.A4, namely, Ext.A4(a) was made by M.S.Thripunithura and the script was returned to him. He speaks about the similarity between his script and the cinematographic film 'Thooval Kottaram'. 22. One may now have a look at the evidence of P.W.2. He would say that during the period 1991-92 Ext.A4 was handed over to him by the plaintiff. He says that during 1994-95 he had occasion to meet the first defendant at Shornur and he had showed Ext.A4 to him. He claims that the first defendant told him that the script as it stood could not be made use of for a film and it needed certain modifications and alterations. He says that he had told the first defendant that it should be mentioned that the plaintiff is the author of the story. P.W.2 further says that he kept Ext.A4 for 4-5 years and he returned the same to the R.F.A.240/2004. 21 plaintiff with Ext.A4(a) endorsement. P.W.2 does say that when he saw the film 'Thooval Kottaram', he felt that it was the story of 'Keerthana Pakshikal', of which the plaintiff was the author. In cross examination, this witness says that he had never told the plaintiff that he had shown the script to the first defendant. He had only told the plaintiff that he had shown the script to several persons. He had in no less terms stated that it was only after return of Ext.A4 to the plaintiff that the film was released. 23. P.W.3 claims to be the person who had seen the film and heard the 'Kadhaprasangam' of the work 'Keerthana Pakshikal'. He says that he felt that the contents of the film as well as the 'Kathaprasangam' are identical and same. 24. The question is whether the evidence of