IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 Crl.MC.No. 32 of 2008() ---------------------------- CC.450/2001 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... PETITIONER(S): ACCUSED NO.1 ------------------------------------- VINAYAKUMAR @ VINAYAN, FILM DIRECTOR, "HARITHA", PIPE LINE ROAD, PALARIVATTOM, ERNAKULAM DISTRICT. BY ADVS. SRI.P.VIJAYA BHANU, SENIOR ADVOCATE SRI.M.REVIKRISHNAN RESPONDENT(S): DEFACTO COMPLAINANT AND STATE ---------------------------------------------------------------- 1. SARATH CHANDRAN, 10/11, PARASANTHIPURAM COLONY, MALAPPARAMBU NADAKKAVU. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADVS.SRI.P.K.RAMKUMAR SRI.M.S.SAJI PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs/ M.SASIDHARAN NAMBIAR, J. -------------------------------------------------------- Crl.M.C No.32 OF 2008 --------------------------------------------------------- Dated this the 12th day of November, 2010. O R D E R Petitioner is the first accused in C.C.No.450 of 2001 on the file of Judicial First Class Magistrate Court-IV, Kozhikode, taken cognizance for the offences under Section 63 of Copy rights Act and Sections 418 and 420 r/w Section 34 of Indian Penal code. The petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken contending that ingredients of the offences are not at all attracted. Petitioner would contend that, the story of Malayalam Movie 'Vasanthiyum Lakshmiyum Pinne Njanum' is not the story of 'Partha' authored by the first respondent and, therefore, neither an offence under Section 63 of copy rights Act or offences under Indian Penal code are attracted. 2. Learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. Annexure-A the final report submitted by the Sub Inspector of police which was taken cognizance by the learned Magistrate shows that prosecution case is that a story written by the first respondent by name 'Partha' was published in 1999 March-April issue of magazine 'In Wayanad' and without Crl.M.C No.32 OF 2008 2 permission, knowledge or consent of the first respondent violating the copy right of the first respondent, fifth accused in furtherance of the common intention after making slight changes, making use of the story, created Malayalam Movie 'Vasanthiyum Lakshmiyum Pinne Njanum' suppressing the real facts from the first respondent with an intention to cause loss to him, and thereby committed offences under section 418 and 420 r/w 34 of Indian Penal Code and 63 of Copy Right Act. The copy of the story 'Partha' is produced by the petitioner as Annexure-F. Annexure-E is the summery of the story of Malayalam Movie 'Vasanthiyum Lakshmiyum Pinne Njanum'. The learned counsel appearing for the petitioner pointed out that Annexure-D story has no resemblance with the story seen as Annexure-E. Case is that except the main character is a blind singer and he is having a sister in both stories, there is no violation of the provisions of the Copy right Act. The learned counsel also pointed out that Annexure-E story has nothing to do with Annexure-F story of the first respondent and hence cognizance is to be quashed. Learned counsel relied on the decision of the Apex Court in R.G.Anand v. Delux Films, (AIR 1978 SC 1613), which was followed by the Division Bench of this Court in Madhavan v. S.K.Nayar and Crl.M.C No.32 OF 2008 3 others, (1987 (2) KLT 47). 4. Learned counsel appearing for the first respondent pointed out that the crime was registered based on a complaint filed by the first respondent and the complaint discloses that when the case of the first respondent is that the story of the Malayalam Movie 'Vasanthiyum Lakshmiyum Pinne Njanum' is taken from a one line story handed over to the accused by the first respondent, and the Investigating Officer did not properly investigate the case. But the prosecution case is only that Malayalam movie was created based on the story of the first respondent by name 'Partha' (Annexure-F) which is in violation of the Copy Right Act and not that there is violation of the copy right of a one line story. 5. A reading of Annexure-F story written by the first respondent and Annexure-E story of the Malayalam movie show that both stories are distinct and different. Hence learned counsel appearing for the first respondent was directed to point out the similarities in the two stories. Learned counsel produced a statement prepared by the first respondent, which according to the first respondent shows that both the stories are similar. The said statement claims that the main characters of both the Crl.M.C No.32 OF 2008 4 stories are blind singers and both earn by singing and maintain their family and both characters have a younger sister who is maintained by the blind singer. It is also point out that there is a similar dialog in the story and in both stories when the singer reaches home his sister asks the causes for the delay. It is also claimed that in both the stories, the singer is a lover and both singers are dumb. But Annexure-F story does not show that Andriya who loves the singer was a dumb person. It is claimed that the sisters in both the stories have a lover, though both the lovers were having different avocations. It is also stated that in both cases steps were taken to have operation to the main character, so that he could regain eye sight, though it is alleged that subsequently the story in the movie was developed. 6. On a reading of the two stories I cannot agree with the case of the prosecution that the story of 'Vasanthiyum Lakshmiyum Pinne Njanum' the same as seen Annexure-F and it is in violation of the Copy right of the story 'Partha' written by the first respondent. 7. The Hon'ble Supreme court in R.G. Anand's case(Supra) laid down the following propositions emerging on a careful consideration and elucidation of the various authorities based on Crl.M.C No.32 OF 2008 5 the case law on the subject of Copy Right. They are:- “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 violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. 4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. 5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. 6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above. 7. Where, however, the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents gave a colour and complexion different from the manner in which the Crl.M.C No.32 OF 2008 6 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.” This Court in Madhavan's case(supra) followed the said principles. 8. When the story written by the first respondent is read along with Annexure-E story of the Malayalam Movie it can only be formed that it is not in violation of Copy Right of Annexure-F story. If that be so the cognizance taken for the offence under Section 63 of the Copy Right Act can only be quashed. 9. If the prosecution case is that the Malayalam movie created by the petitioner, was not the same story of the first respondent, by name 'Partha', the further case of the prosecution that petitioner has committed offences under Sections 418 and 420 of Indian Penal code can only be quashed. The learned counsel appearing for the first respondent submitted that said case is based on the allegation that the one line story furnished by first respondent to the petitioner and others was used for creating the film. But no such one line story was produced by the prosecution or it was relied by the prosecution in the final report. In such circumstances the cognizance taken for the offences Crl.M.C No.32 OF 2008 7 under Section 418 and 420 also can also quashed. Petition is allowed. Cognizance taken in C.C.No.450 of 2001, on the file of Judicial First Class Magistrate Court-IV, Kozhikode is quashed. M.SASIDHARAN NAMBIAR, JUDGE. mns