1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.3477 of 2005 IN Suit No.3094 of 2005 Indiana Gratings Private Limited & anr. .. Plaintiffs V/s. Anand Udyog Fabricators Private Limited & ors. .. .. Defendants Dr.Veerendra Tulzapurkar, Senior Advocate with Mr.Amit Jamsandekar, Mr.Vicky Singh, Mr.V. Desai and Mr.Sahil Kanuga i/by M/s.Nishit Desai & Associates for Plaintiffs. Mr.Ajit Jkhadi for Defendants 1 to 3 & 8 to 12. Mr.M.V. Khatavkar for Defendants 5 to 7. Mr.L.M. Acharya with Mr.M. More for Defendants 13 to 18. Mr.M.P.S. Rao i/by M/s.Little & Co. for Defendant 22. ------ CORAM : SMT.ROSHAN DALVI, J. Dated : 26th June, 2008 JUDGMENT : 1.The Plaintiffs claim to be manufacturers of certain gratings used for industrial purposes. Initially the manufacture of gratings was by traditional handmade technique. After 1997, the Plaintiffs claim to have manufactured the Electro 2 Fold Gratings. For this purpose, they claim to have imported a second hand Electro Fold machine in the assembled form from a European manufacturer. It was not found suitable to Indian conditions and accordingly the Plaintiffs made certain improvements and modifications to those machines through the employees of Plaintiff No.2. Their work was documented in the form of certain drawings for the manufacture of several parts of the gratings. 2.Under an Agreement dated 12.12.1997 between the Plaintiffs, the artistic work containing in those drawings made by the employees of Plaintiff No.2 came to be assigned to Plaintiff No.1. 3.Between 1999 and 2001, the Plaintiffs claim to have created the first indigenous Electro Fold machine on the basis of those drawings. The Plaintiffs have since maintained only two sets of those drawings; one in the possession of Rajkumar Borkar of the Maintenance Department and other with Defendant No.4 at his office at Jejuri. The contracts of employment with Defendants 5 to 7 are not denied. These contracts contain confidential clause with regard to the drawings. The Plaintiffs claim a copyright in those drawings as artistic work. The Plaintiffs claim that Defendants 1, 2 3 and 3, who are sister Concerns, through their partners and Directors, Defendants 8 to 12 have infringed the Plaintiffs' copyright in those artistic work contained in the drawings by reproduction of those drawings into finished products which they use for their business. 4.Defendants 4 to 7 were admittedly employees of the Plaintiffs. Defendant 4 has left for Dubai and since not contested that Suit despite service. Defendants 5, 6 and 7 have since resigned and joined Defendants 1 and 2, who are in the same business as the Plaintiffs. 5.Defendants 13 to 23 are various suppliers who have received orders from Defendants 1 and 2, represented by Defendants 5, 6 and 7 and have supplied certain products which are claimed to be products manufactured upon infringement of the Plaintiffs' copyright in their drawings. The Plaintiffs have, therefore, claimed the relief of injunction against the Defendants from infringing their copyright in the drawings mentioned in Exhibit-G to the Plaint or making use of or making any copies thereof or making any three dimensional object of machine parts which would be reproduction of the Plaintiffs' drawings or a colourable imitation thereof. The Plaintiffs have also claimed damages in the Suit from the 4 Defendants for infringement of their copyright. 6.The Plaintiffs have 330 drawings on the basis of which they manufacture new Electro Fold wielding machine as described in the Plaint. In the Notice of Motion, the Plaintiffs have prayed for a similar relief of injunction and order for delivery of the drawings. 7.The Plaintiffs' claim is based upon the fact that they realized on 19th April 2005 that some of their drawings were missing from the drawers of Defendant 4 where they were kept by him. Defendant 4 has since left the Plaintiffs-Company and gone to Dubai. The Plaintiffs learnt that he had caused photocopies of these drawings to be made from time to time. The Plaintiffs have relied upon the Affidavits of two Assistant Managers and their driver in that behalf. The Plaintiffs made inquiries in the market and learnt that Defendant 2 had placed orders with some suppliers for identical parts. These orders were got placed under the signature of Defendant 5, who was earlier the Plaintiffs' employee. Two of such Purchase Orders in the name of Defendant 2 dated 15.3.2005 and 23.3.2005 addressed to a supplier one Sumeet Dhody, marked Exhibit-L to the Plaint, are relied upon by the Plaintiffs to show as an example of how 5 Defendants 1 and 2 through their employees who were earlier the Plaintiffs' employees placed orders for parts of the grating machines largely similar to the Plaintiffs' dimensions. The Plaintiffs' Advocates have labouriously identified their specific drawings under their specific numbers largely similar to the dimensions mentioned in the Purchase Order dated 15.3.2004. The Plaintiffs claim that their Inquiry reflected a far larger theft than was calibrated in one such Purchase Order. The Plaintiffs filed a Criminal Complaint for theft and criminal conspiracy against Defendants 4 to 7 in respect of 128 drawings. Criminal investigation proceeded. 62 copies of the Plaintiffs' drawings came to be recovered by the Police from the factory of Defendant 1, one copy was stated to be seized from Defendant 8 and 10 copies of drawings have been recovered from Defendant 16, a supplier of Defendant 2. These drawings have been kept in a sealed cover in the custody of the Prothonotary and Senior Master, which have been opened by this Court and seen alongside the Plaintiffs' drawings from the other set of drawings of the Plaintiffs produced by them. The recovery of the Plaintiffs' drawings is the largest single circumstance and corroborative evidence of the Plaintiffs' case of theft by Defendants 4 to 7 and the reproduction and user of these drawings by Defendants 1, 2 and 3 in the course of their 6 business upon infringing the copyright therein. 8.The prima facie case made out by the Plaintiffs for the grant of injunction for infringement of their copyright in their drawings would be best seen from an illustration of the infringement. Defendant 22 is one such supplier. During the course of investigation of the criminal complaint of the Plaintiffs, Defendant 22 handed over to the Police a copy of the letter addressed by Defendant 2 for a quotation for undertaking job work for deep hole drilling in Copper Plates based upon the handmade sketch annexed thereto. Such sketch is provided to Defendant 22 by Defendant 2. The letter of Defendant 2 enclosed a sketch showing a dimension of the Copper Plates. These were hand-drawn showing precise measurements required. Defendant 22 handed over to the Police the said letter and the said sketch during the investigation of the Plaintiffs' criminal complaint. The Plaintiffs' Advocates have shown the Plaintiffs' drawings at page 10 in one of the files in the sealed cover produced before the Court showing identical dimensions in the Plaintiffs' drawings. The larger machine was broken open into separate parts in the drawings of the Plaintiffs. One such drawing denoting part of the larger machine showing the Copper Plates in two separate blocks of identical 7 dimensions was drawn out in the sketch of Defendant 2, for which Defendant 22 had given quotation on 7.5.2005. 9.This exercise conclusively shows how the Plaintiffs' drawings, hitherto drawn by an employee of the Plaintiffs who later served with Defendant 2, used the same dimensions to make sketches for reproduction of the drawings into those parts, being Copper Plates, used as one of the products of the finished goods to be manufactured by Defendants 1 and/or 2. 10.Such illustration is evidenced from Exhibits A and to the Affidavit of Defendant 22. A clear prima facie case not only of theft substantiated by the recovery, but also of infringement of copyright contained in those drawings has come to be made out by the Plaintiffs. 11.The fact that the Plaintiffs and Defendants 1 and 2 manufactured the same goods in the market is not denied. In fact, it is the case of the Defendants that they are the Plaintiffs' competitors and the Plaintiffs have sought, by an illegal and restrictive trade practice, to seek a monopoly in the market. 8 12.The fact that Defendants 4 to 7 were the employees of the Plaintiffs under the contracts of employment showed by the Plaintiffs containing, inter alia, the clause of secrecy in respect of the drawings of the Plaintiffs, is also not denied. The fact that Defendants 4 to 7 have since resigned from the Plaintiffs-Company is also denied. Defendant 4 has not filed an Affidavit and Defendants 5 to 7 admit that fact whilst showing cause against this Notice of Motion. The fact that Defendants 5 to 7 are employees of Defendants 1 to 3, is also not denied. What is denied is that Defendant s 1 and 2 have ever reproduced the Plaintiffs' drawings and caused infringement of any copyright, if any, and Defendants 5 to 7 have stolen or made unauthorised use of any of the Plaintiffs' drawings. 13.The first contention of the Defendants is that the Plaintiffs themselves have no copyright in those drawings because on the Plaintiffs' own showing they are not original works of the Plaintiffs, the Plaintiffs themselves having copied from the second hand European machine admittedly imported by them in disassembled form. It is contended that even if the Plaintiffs' drawings would qualify as an artistic work being a production of their original effort, there has been no infringement by the Defendants by reproduction of those 9 artistic works in their finished products as three dimensional objects from the Plaintiffs' two dimensional drawings. 14.It must first be seen whether the Plaintiffs' drawings constitute a work in which a copyright would subsist. The Plaintiffs claim that the drawings are artistic works within the meaning of Section 2(c) of the Copyright Act, 1957. Section 2(c) reads thus : “2(c) “artistic work” means,- (i)a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) . . . . . . . . . (iii) . . . . . . . . .” Consequently, it is seen that the drawing, which may be in the form of a diagram, would be artistic work even if it may not appear to be having any artistic quality to a layman. The Plaintiffs' drawings are such. 15.The case of the Plaintiffs is that the machine which they imported from Europe in disassembled form which they were to use for their business of gratings in the place and stead of 10 the earlier traditional handmade gratings, was found not suitable to Indian conditions and hence, they were required to modify the machine to suit Indian conditions. For that purpose, the employees of Plaintiff No.2 made certain drawings. These drawings, in modified form, were used by the Plaintiffs for the manufacture of their finished products. The European supplier has had no dispute with the Plaintiffs. It is argued on behalf of the Plaintiffs that the Defendants may also manufacture or supply gratings in the market but without the use of the Plaintiffs' drawings. Since the drawings in the form of diagram without any artistic quality are an artistic work, a copyright can be claimed in them as such artistic work. The Plaintiffs' claim for copyright subsists. The Defendants have not shown any other drawings of any manufacturer, Indian or European, which the Plaintiffs have used. Consequently, so far as the drawings are concerned, the artistic work is original. 16. The Plaintiffs have produced the original drawings in the set with them. The Police have recovered another set of 126 original drawings during investigation of the criminal case of the Plaintiffs. The statement of Defendant 8 in paragraph 3 (v) that the Plaintiffs have not produced their original drawings is incorrect. The Plaintiffs have produced before 11 this Court also the drawing in the form of a hand-drawn sketch which shows the alleged copying by the exact dimension shown therein in the letter calling for quotation from Defendant 2. Hence, the statement in paragraph 3(v)(i) of the Affidavit of Defendant 8 that the Plaintiffs cannot complain of infringement unless they have produced the industrial drawing alleged to be copied is also substantiated by the Plaintiffs by producing such copied drawing to be entitled to complain of infringement. 17.The Defendants' denial of infringement of the Plaintiffs' copyright would be required to be seen from what constitutes an infringing copy under Section 2(m) of the Copyright Act and the meaning of copyright under Section 14(c)(i) of the Copyright Act. An infringing copy in relation to an artistic work is a reproduction thereof. A copyright in an artistic work is the reproduction of the work in any material form including depiction in three dimensional of a two dimensional work. In this case, its depiction is in the Defendants' finished products of the Plaintiffs' drawings which makes it an infringing copy. It is the case of the Defendants that the Plaintiffs' drawings are commonplace shapes with dimensions written thereon. These are based on basic principles of engineering mechanics which are known 12 to the public since decades. Many of the manufacturers in the market would produce objects which conform to such drawings. No copyright can be claimed in such simplistic work. An attempt to claim copyright would lead to monopolizing the market which would be an act constituting a restrictive trade practice. Though it may be expected that a drawing with dimensions contained in Exhibit-L to the Plaint, seen singularly would indicate to be a three dimensional rod which could be manufactured by any one of that dimension, various drawings of the Plaintiffs taken as a whole for various parts of the machinery which would fit into one another used together do not show commonplace drawings which could have been made by just any one. 18.What is intriguing is that upon the Plaintiffs' case in the Plaint giving the illustration of a transaction contained in the letters dated 15.3.2005 and 23.3.2005 of Defendant 2 for the Copper Alloys mentioned therein, Defendant 8 in paragraph 24 of his Affidavit-in-reply has perhaps justifiably stated that “Perusing such an order no one can know that the said goods are ordered for parts which are allegedly identical to the parts of the Plaintiffs' machine.” Indeed, that would be so, but the investigation has revealed a lot more. It has, inter alia, revealed, as the other illustrative effort shows, intriguing 13 minute dimensions made out in the Plaintiffs' drawings also shown in the handwritten sketch supplied by Defendant 2 to Defendant 22 as reflected in his letter dated 29.4.2005 addressed to Defendant 22. It would be worth mentioning that the dimensions of the Copper Blocks shown in the sketch are .452 x 210 and 1030, 30 x 25. Neither these dimensions nor the drawings are so commonplace as to be brushed aside for denying the right of copyright upon its infringement. Defendant 8 has shown how an Austrian machine imported in India in 1958-59 works to full capacity till 2005, 45 years later and is used in Chennai. Similarly a Swiss machine is used in Chennai and Bangalore. The descriptions, specifications and drawings of these machines given by Defendant 2 do not make out any case against the Plaintiffs. They also do not make out a case that the Plaintiffs' finished products are not the first indigenous such products. We are concerned, however, only with the Plaintiffs' products manufactured from the Plaintiffs' drawings by them and the reproduction of their drawings in the Defendants' products, if any. That reproduction is manifest in the aforesaid illustration. It is material to see and understand the Plaintiffs' drawings with their specific identifiable marks alongside the copies recovered from 14 Defendant 1, Defendant 16 etc. The Plaintiffs' drawings bear distinctive numbers showing their abbreviation such as IGPL- 01-02-12. They show the 1st Plaintiffs' logo as well as the 1st Plaintiffs' complete name with the description of the product along with the legend for the various items in the drawings. They further show engraving of imprint that “the drawing is the property of the Plaintiffs and must be returned on request and is confidential information in connection with the inquiry tendered, ordered or conducted and that it is not to be used for any other purpose or order nor made copied or lent without the Plaintiffs' authority in writing.” The list of drawings recovered by the Police shows the Plaintiffs' distinctive drawing number, legend as well as the aforesaid warranty. In some of the drawings, the warranty is erased when the abbreviation remains along side the number. A distinct attempt at copying and suppressing is made. It is sought to be contended on that premise that “No one would come to know” that the sketch made from such a drawing could be relatable to the Plaintiffs' drawing. A reading of the drawings would show that the person with ordinary intelligence would “come to know” that sketches are made from the copies of the Plaintiffs' drawings – copying which was prohibited as mentioned in the drawing itself. Section 13(a) of the Copyright Act would subsist only in an original artistic work. A diagram, which would be a 15 drawing, would be an artistic work. Under Section 2(c) a copyright in an artistic work is for reproduction of it in material form such as the finished products being a three dimensional object from a drawing which is the two dimensional work under Section 14(c) of the Copyright Act. 19.Dr.Veerendra Tulzapurkar, on behalf of the Plaintiffs, showed that what is original literary work came to be considered in the case of University of London Press, Limited vs. Tutorial Press, Limited, 1916 (2) Chancery Division 601. The case related to publication of examination papers for matriculation examination of January 1916. The Plaintiff published the papers for that examination. In the same month, the Defendant issued a publication in which 16 out of 42 papers were included. These papers were taken from the copies of the examination papers supplied by the students. The Defendant also published answers to the questions of some of the papers along with some criticism on the setting of papers. It was held that the term “original work” did not mean or include an expression of original or inventive thought. Since the Copyright Act is not concerned with originality of ideas but with the expression of thoughts, hence the work must not be copied from another work but must originate from the author. The questions set in the 16 papers were thought out by the Plaintiff' s Professors, they made notes or memoranda for future questions and drew on those notes for the purposes of the questions which they set. Consequently, the papers were originated from themselves and hence, were original works within the meaning of the Copyright Act. The Defendant copied the original questions. Hence, they copied the expression of the Plaintiffs and not their idea. 20.The Plaintiffs, in this case, may have taken the idea of the European manufacturer. Though the Plaintiffs' idea is the same – manufacturing the same finished products – the Plaintiffs' expression is in their drawings. Though the idea of the European manufacturer could be copied by the Plaintiffs and modified to suit their requirements, the actual expression in the thought documented in the drawings could not then be copied and carried a copyright. 21.In the case of Dorling vs. Honnor, 1964 RPC 160-171, copyright was held subsisting in a kit or a list of parts for making a boat, as the shape of the boat was purely functional and being not registrable as a design was entitled to protection from being copied. The case of Merchant Adventurers Ltd. vs. M. Grew & 17 Co.Ltd., 1973 RPC 1 was for protection of copyright in engineering drawings of electric light fittings. Some drawings were made by the Plaintiffs' employees and some by an outside designer. The Plaintiffs were held to be owners in equity of the copyright therein. It was held that in an action for infringement of copyright the Plaintiffs must establish : (a) that there is work in which copyright can subsist, (b) that copyright does subsist in such work, (c)that the Plaintiffs own the copyright and (d) that such copyright has been infringed. 22.It was held that diagram of sections of the machines were drawings made by qualified persons (their employees). Further, the copyright in them was violated by reproduction in 3 Dimensional (3D) form as light fittings and their sale. Hence, they qualified for copyright. Infringement was held from a look at the 2 products – with great similarity in their shapes. It was urged that no sectional drawings could ever be infringed by a complete 3D object constructed from those sections. Negativing that contention, and drawing from the infringement of the figure in the Popeye case, which shall be dealt with presently, it was observed that several sectional drawings are so simple that “any reasonably intelligent person can visualise what they represent in 3D form” 18 and other drawings, both sectioned and otherwise are extremely difficult to understand and “which many non- experts would get little or nothing out of at all.” The cylindrical and square fittings with clean sidelines produced by the form of snap-on joints were held to be similar in the products of both the parties and hence, the Plaintiffs' copyright in the drawings was held to have been infringed. 23.This case was followed in the case of British Northrop Limited & ors. vs. Texteam Blackburn Limited & anr., (1974) 3 RPC 57. This was was a case of a Plaintiffs- Company manufacturing looms and weaving machinery. The Defendants sold spare parts of such machinery. Certain employees of the Plaintiffs later joined the Defendants to manufacture their spare parts. The Defendants contended that there was no copyright in the Plaintiffs' drawings because they were not of original authorship or publication and some of the drawings were too simple to constitute an original artistic work and some of them were merely variants of earlier drawings. In that case, the Plaintiffs claimed copyright in the specifications and spare lists. The Defendants were alleged to be using the numbers and names of the Plaintiffs' list in the Defendants' price list. A copy of the Defendants' list was even sent abroad. Parts of that list 19 were ordered from that list. The de-listing specifications comprised in the loom identified by their separate numbers. [Such as NLM 5494 (N)”).] The purchasers copied out the list of requirements and sent them to the Defendants. The Defendants compiled the quotations using the numbers and the names and sent the quotations to the foreign party. From these quotations, the Defendants compiled their loom list. It was held that the Defendants had infringed the Plaintiffs' copyright. In this case, the copies of the drawings recovered by the Police show the distinctive identifiable numbers and the legend of the Plaintiffs with or without their name being erased and also show the precise dimensions in the copies which are xerox copies exhibiting how the Plaintiffs' specifications and dimensions, complete with their drawings, have not only been thieved but later sought to be used for ordering parts of the machinery from various suppliers from whom they have been recovered. This case is on all fours the facts of the case of British Northrop (supra) relating to the drawings together with the specifications and the list of the parts of the machinery (in that case, loom). This case has been followed in the case of L.B. (Plastics) Limited vs. Swish Products Limited, (1979) RPC 551 in which the House of Lords 20 confirmed the judgment of the Trial Judge of Chancery Division, holding that the Plaintiffs had a copyright in their production of drawings which when reproduced in three dimensional by way of the finished products infringed their copyright. That was