Written Submissions.docx

WRITTEN SUBMISSIONS

CONTENTION 1: THAT THE “FAIR USE” RULE APPLIES TO THE PRESENT CASE 1. That, the Merriam Webster Dictionary defines copyright as “the exclusive legal rights to reproduce, publish, sell, or distribute the matter and form of something (such as a literary, musical, or artistic work)1.” 2. That, the Copyright Act, 1957 defines an infringing copy in Section 2(m) as – (i) in relation to literary dramatic musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film2; 3. That, the meaning of the term copyright has been defined in Section 14 of the Act3 as – “For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorize 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 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 copies already in circulation,

1

Merriam Webster, Legal Dictionary, https://www.merriam-webster.com/dictionary/copyright visited on November 4, 2018. 2

Section 2(m), Copyright Act of 1957.

3

Copyright Act, 1957.

(iii)

to perform the work in public, or communicate it to the public,

(iv)

to make any cinematography film or sound recording in respect of the work,

(v)

to make any adaptation of the work,

(vi)

to, do, in relation of any adaptation or translation of the work, any of the facts specified in relation to the work in sub clauses (i) to (v).

b.

in the case of a computer programme to do any of the acts specified in clause (a): (i)

to sell or give on hire, or offer for sale or hire, any copy of the computer programme, regardless of whether such copy has been sold or given on hire on earlier occasions

c.

in the case of an artistic work, to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work, (i)

to issue copies of the work to the public not being copies already in circulation,

(ii)

to issue copies of the work to the public not being copies already in circulation,

(iii)

to include the work in any cinematograph film,

(iv)

to make any adaptation of the work,

(v)

to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub clauses (i) to (iv).

d.

in the case of a cinematograph film, to make a copy of the film, including a photograph of any image forming part thereof

(i)

To sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions,

(ii) e.

To communicate the film to the public.

in the case of a sound recording, to make any other sound recording embodying it: (i)

to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions,

(ii)

to communicate the sound recording to the public.

4. That, in the present case Mr. Ravinder Singh, who is a professor at Delhi University has been accused of infringing the copyright of Mr. Kashmir Singh. 5. That, according to the facts of the case, the recent work of Mr. Ravinder Singh, that is “Dashmesh Prakash” is said to be a copy of his previous work “Dassam Guru”. The copyright of his previous work “Dassam Guru” were sold to Mr. Kashmir Singh. 6. That, the Defendant has rebutted all such accusations and is not guilty of infringing the copyright of the Plaintiff, Mr. Kashmir Singh. 7. That, the Defendant later started to write a series of books on various Sikh Gurus. One of his many books was the new publication, “Dashmesh Prakash”. 8. That, while his last published work “Dassam Guru” was in press, the Defendant published the new biography on Sri Guru Gobind Singhji’s life. 9. That, upon hearing about the publication of “Dashmesh Prakash”, the Plaintiff filed a suit against the Defendant for infringing his copyright. 10. That, it is admitted that no higher rights had been conferred on the Plaintiff apart from those available to him as per the statutory law.

11. That, the new work on Sri Guru Gobind Singhji’s life is a much longer and detailed work as compared to the previous publication. 12. That, it has been compiled after due research, extensive travelling and further study, and has new incidents which do not lead to the infringement of copyright of the Plaintiff. 13. That, the laws relating to copyright should be inferred in a reasonable and generous spirit. It is unethical to close all avenues of scholarship and research in the name of copyright. 14. That, the Plaintiff has sought to move the Hon’ble Court to restraint the Defendant from proceeding with the sale and further publication of his new book. 15. That, certain material cannot be copyrighted as that would defeat the “fair use” rule. In such situations, the use of other person’s work without permission is also justified. 16. That, under the "fair use" defense, another author may make limited use of the original author's work without asking permission. Certain uses of copyrighted material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." 17. That, fair use is based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism. The fair use privilege is perhaps the most significant limitation on a copyright owner's exclusive rights. 18. That, quoting a short passage in a scholarly, scientific, or technical work for illustration or clarification of the author's observations would be deemed acceptable. 19. That, use that benefits the public or that lends to education also weighs heavily in favour of a finding of fair use.

20. There are five major considerations which are used to determine the application of the “fair use” rule in a literary work4. They are – (a) The purpose and character of your intended use of the material involved is the single most important factor in determining whether a use is fair under copyright law. The question to ask here is whether you are merely copying someone else's work verbatim or instead using it to help create something new. (b) The purpose of the new work is to compete with the older works. In such cases, the fair use rule fails. (c) Fair use rule does not mandate the author to credit the works from where he has borrowed the material. (d) The material which has been borrowed from previous publication should not be the main text or in a large quantity. (e) The quality of material taken is as important as the quantity. If you take the crux of the previous work and use it in your own publication, then that would defeat the fair use rule. 21. That, referring to the present case, Mr. Ravinder Singh used the contents of the previous book “Dassam Guru” to create a new, better version of Guru Gobind Singhji’s biography. This was not done to compete with previous works but merely to provide authentic, well-researched information about the Guru. 22. That, the content borrowed from his previous work is minimal and only regarding the historical facts. Apart from this, the Defendant has not taken the crux of the previous work either.

4

Legal Encyclopedia, “Fair Use Rule in Copyright” (May 23, 2015) https://www.nolo.com/legalencyclopedia/fair-use-rule-copyright-material-30100.html visited on November 4, 2018.

23. That, thus it is clear that the five considerations of the “fair use” rule are fulfilled in the present case. 24. That, according to the Berne Convention for the Protection of Literary and Artistic Works5, an exception to limitations to copyright is only available if – (a) It

covers special cases,

(b) It

does not conflict with normal exploitation of the work,

(c)

It does not unreasonably prejudice the interests of the author.

25. That, the book “Dasham Prakash” does not prejudice the interests of the Plaintiff as it covers several different topics when compared to the text of the previous book. 26. That, the biography falls under a special case. It covers historical events and the life of a Sikh Guru. A copyright cannot be given on historical events or facts as that would lead to restrictions on further researches and studies. 27. That, the provisions of Section 52 of the Copyright Act, 1957 provide for certain acts, which would not constitute an infringement of copyright namely fair dealing with a literary, dramatic, musical or artistic work not being a computer program for the purposes of – (a) the

reading or recitation in public of any reasonable extract from a published

literary or dramatic work6. 28. That, the book “Dasham Prakash” is a literary work aiming to inform the people about the life of Guru Gobind Singhji. The author, Mr. Ravinder Singh has only taken the relevant extracts from the previous work in order to publish the perfect recital of the Guru’s life. Therefore, the publication of this book comes under the exception to limitations of copyright. 5

R K Dewan, R K Dewan Articles, “Informed Strategies and Solutions For Your IP” (June 18, 2014) http://www.rkdewan.com/articledetails.php?artid=131 visited on November 5, 2018. 6

Section 52, Copyright Act of 1957.

29. That, the Doctrine of Fair Use was explained in the case of Kartar Singh Giani vs Ladha

Singh7.

The

Hon’ble

Judges

had

explained

that

–

“two points have been urged in connection with the meaning of the expression fair, in fair dealing (1) that in order to constitute unfairness there must be an intention to compete and to derive profit from such competition and (2) that unless the motive of the infringer were unfair in the sense of being improper the dealing would be fair.” 30. That, according to many jurists fair dealing is a significant limitation on the exclusive right of the copyright owner. It has been interpreted by the courts on a number of occasions by judging the economic impact it has on the copyright owner8. 31. That, the publication of the book “Dashmesh Prakash” is not in any manner affecting the sale of the previous book titled “Dassam Guru”. The new book has been published on the goodwill to provide more information and authentic facts regarding the life of the Sikh Guru, Guru Gobind Singhji. 32. That, in the case of Kartar Singh the defendant-appellant was allowed to proceed with the production of his new book on the life of Guru Gobind Singhji. 33. That, the abovementioned case has facts very similar to the present case and must be taken into consideration by the Hon’ble Court. 34. In the case of Ratna Sagar Pvt Ltd9 it was held by the Hon’ble Court that an injunction or restraint on publication can only be ordered where one party attempts to use a similar title to gain profits from the goodwill of another author10.

7

Kartar Singh Giani vs Ladha Singh, 1934 Lahore Series

8

R K Dewan, R K Dewan Articles, “Informed Strategies and Solutions For Your IP” (June 18, 2014) http://www.rkdewan.com/articledetails.php?artid=131 visited on November 4, 2018. 9

Ratna Sagar Pvt Ltd vs Trisea Publications and Others, 1997 (1) ARB LR30 (Delhi).

35. That, in the present case the Defendant, Mr. Ravinder Singh has in no manner tried to maximize his profits through his previous work, “Dassam Guru”. The new book was written after due research and in-depth formal study about the Guru. 36. That, it is thus humbly submitted before this Hon’ble Court that the book “Dasham Prakash” falls under the ambit of the “Fair Use” rule. The contents of the book do not infringe the copyright of the Plaintiff in any manner, whatsoever.

10

Legal Crystal, “Concise Landmark Judgements” (January 12, 1997) https://www.legalcrystal.com/case/699307/ratna-sagar-pvt-ltd-vs-trisea-publications visited on November 4, 2018

CONTENTION 2: THAT ANY HISTORICAL FACT CANNOT BE COPYRIGHTED 37. That, it has been fairly established that copyright is the legal right that one has to control copies and distributions of their work. 38. That, a copyright is used to protect the thoughts of an author. The concept of copyright evolved in order to prevent other people from using a published work for their personal gain. However, a historical fact cannot be copyrighted11. 39. In the case of Feist Publications Inc12 it was held that “A person who discovers a fact about the world (like a biologist who discovers a fact about human cellular structures, a historian who discovers a fact about Napoleon’s life, or a journalist who learns secret information about a news event) is not the author of that fact under copyright law. That person has neither expressed anything to create the fact nor does a fact of the world involve any creative originality.” 40. That, the abovementioned case states that even facts discovered by a certain scientist or author do not confer copyright rights on him. 41. That, in the same fashion, any work on a historical event, fact or person cannot copyrights the historical events, facts or persons so mentioned. Only the thoughts of the author can be copyrighted. 42. That, in the present case the author, that is, Mr. Ravinder Singh has authored and published a book which discusses the events of a historical person namely, Guru Gobind Singhji. 43. That, the book involves in-depth discussion on historical events which have been taken from various sources like books of other eminent authors, religious texts, 11

New Media Rights, “What Can and Can’t Be Copyrighted?” (October 10, 2017) https://www.newmediarights.org/business_models/artist/ii_what_can_and_can%E2%80%99t_be_copyrighte d visited on November 5, 2018 12

Feist Publications Inc. vs Rural Tel. Serv. Co, 499 U.S. 340, 347 (1991).

internet, discussions with heads of the Sikh community, and various visits made to important places. 44. That, the Defendant cannot change the historical facts or events in order to prevent any copyright infringement. 45. That, according to the law “New edition of an existing work is made by making additions, alterations and deletions. If the changes made are material which has made the new edition original when taken as a whole, it will be protected as a new work13.” 46. That, whether changes made from a substantial part of the work or not. If the existing edition is still under copyright protection, the alterations constitute original work. 47. That, in regards to copyright on religious works, it is not always clear who the right holder is. Under the provisions of the Berne Convention, copyright is granted to the author on creation of the work. Several religions claim that all or some of their works were authored (written or dictated) by their god or gods14. 48. That, in the case of Maltz vs Witterick15, the Supreme Court of Canada denied award to the applicants for alleging copyright infringement of their intellectual work. It held that amended work with similar facts cannot be taken as infringement of copyright. 49. That, it reiterated a fundamental principle in copyright law that there cannot be copyright protection in facts and offers an example as to what extent one can use

13

Legal Service India, “Copyright on Historical Books and Historical Facts” (August 27, 2016) http://www.legalserviceindia.com/copyright/historical-book.htm visited on November 5, 2018

15

Maltz vs Witterick, 2013 FC 524.

names and facts from an artistic work and use it to create another original artistic work without being an infringement of copyright16. 50. That, in the present case the Defendant has not used the intellectual work of the Plaintiff. In the new book, “Dasham Prakash” only the historical facts and events have been mentioned with certain similarities to the previous book. 51. That, the Defendant decided to write a new book on the same subject as he had come across a few errors in his previous work. The decision was made over a period of 10 years and involved a lot of research and better understanding about the Sikh Guru. 52. That, the author has added more incidents which have been explained in over 200 pages. The incidents mentioned in the new work are not found anywhere in the previous book named “Dassam Guru”. 53. That, in the case of Matthewson vs Stockdale17, the Hon’ble Court made certain instructive suggestions regarding copyright of historical facts. It was noted that historical facts and events were open for people to study and author. It was held that an author can take anything from an original work and add or amend the work into a new version. 54. That, a copyright infringement only bans the sales of “copied” works. The word copy means – “A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original.”

16

McCarthy Tetrault, “Historical Facts and Copyright” (June 27, 2016) https://www.mccarthy.ca/en/insights/blogs/snipits/historical-facts-and-copyright-maltz-v-witterick-case visited on November 6, 2018. 17

Matthewson vs Stockdale

55. The case of Garrold vs Heywood18 laid down a test for ascertaining infringement of copyright.

The

principle

laid

down

in

the

test

states

that

–

“If any part of a work complained of is a transcript of another work or with colourable additions and variations and prepared without any real independent literary labour such as portion of the work is practical. But it is impossible to establish a charge of piracy when it is necessary to track mere passages and lines through hundreds of pages or when the authors of a work challenged as piratical have honestly applied their labour to various sources of information.” 56. That, in the present case the subject-matter of both the books namely “Dasam Guru” and “Dashmesh Prakash” are similar in nature, however, both have very less similarities and the latter is an elaborate and detailed version of the life of Guru Gobind Singh Ji. Historical facts are facts considered to be in the public domain. 57. That, the life of Guru Gobind Singhji is in itself facts that are open to public They are not protectable under copyright law. The public has the right to discover facts and exchange ideas freely. Even if some facts were discovered as the product of long and hard work, they are not entitled to protection under copyright laws. 58. That, two authors may have the same idea for a book. However the way they express themselves i.e., the way they put down their idea in a tangible form is what that makes a difference. It is the form in which a particular idea, which is translated that is, protected. 59. That, in light of the abovementioned arguments, the counsel for the defendant submits before the Hon’ble Court that the facts and events mentioned in the book are historical and thus, cannot be copyrighted.

18

Garrold vs Heywood

CONTENTION 3: TEST OF DERIVATIVE WORK DOES NOT APPLY TO THE BOOK “DASHMESH PRAKASH” 60. That, it is humbly submitted before this Hon’ble Court that the new book is merely a derivative form of the previous work and not a copy. 61. That, the copyright law in itself allows the authors to not only have new thoughts but also, build up on the previously available material. 62. That, in order to determine whether or not the book “Dashmesh Prakash” is an infringement of copyright, the Hon’ble Court must apply the derivative test. 63. That, in the landmark judgement of Garrold vs Heywood19, the court laid down a certain test for determining infringement. According to the test –

“If any part of the work complained of is a transcript of another work or with colourable additions and variations and prepared without and real independent literary labour such portion of the work is piratical. But it is impossible to establish a charge of piracy when it is necessary to track mere passages and lines through hundreds of pages or when the authors of a work challenged as piratical have honestly applied their labour to various source of information.”

19

Ibid.

64. That, to effectively apply the steps, the Court has to pass the literary work through three stages. Namely –

(a) The labour must be of the right kind, (b) The work (c)

must bring about a substantial change in the previous work,

The change must be of the right kind.

65. That, the defendant has put in the right amount of effort in order to write the new book. He went above and beyond his previous efforts in order to complete the book “Dashmesh Prakash”. 66. That, as provided in the fact sheet, the defendant not only referred to books of various eminent authors, he also did some ground work. He travelled to places like Patna, Gurudwara Anandpur Sahib and spoke to various religious heads. 67. That, this clearly shows that the defendant has put in a great amount of labour in his recent literary work. 68. That, the second stage requires the new work to bring some major changes as compared to the works that it borrows from. 69. That, as per the facts, the new book “Dashmesh Prakash” has over 200 pages more than the previous work “Dassam Guru”. 70. That, the author has in fact added more incidents and events from the life of Guru Gobind Singhji in the new book. These incidents and events are not available in the previous book. 71. That, this proves the fact that the new book has brought a “substantial change in the previous work.” 72. That, the last stage of the Derivative Test is to prove that the change is of the right kind.

73. That, the author has in order to publish a new book, used only the relevant and unavoidable parts from his previous literary work. The changes made in his new book are authentic and from reliable sources. 74. That, the Hon’ble Supreme Court in the case of R G Anand vs Deluxe Films20 observed that, the plaintiff was the author of a play called Hum Hindustani. In 1954, the defendant Mohan Sehgal sent a letter to the plaintiff expressing his desire to make a movie based on the play. The plaintiff and the defendant met and discussed the entire play. The defendant did not commit anything, but the plaintiff later came to know that the defendant released a movie titled New Delhi. After watching the movie, the plaintiff was of the opinion that it is based on the story of his play. So he filed a suit against the defendant for permanent injunction and damages. Both the District Court and the High Court ruled against the plaintiff on a finding of the facts. The case finally reached the Supreme Court of India. 75. That, it was held that, the movie cannot be considered to be an infringement of the script of the play. The reason it gave was that though the idea behind both the stories was the same, the manner in which both had been expressed were vastly different from each other. Therefore it cannot be held to be copyright infringement. 76. That, in a similar fashion, even though the idea behind the two books is the same, they cannot be considered as copies of each other. 77. In another landmark judgement, the Bombay High Court reiterated on the fact that ideas are not copyrightable. The residue left behind after filtering out dissimilarities is the idea which is not copyrightable and similarity of ideas does not lead to copyright infringement21.

20

R G Anand vs Deluxe Films, (AIR 1978 SC 1613).

21

Mansoob Haider vs Yash Raj Films, 2014 (59) PTC 292 (Bom).

78. It is obvious that the no two photographs of the bottle clicked by two different photographers can be the same. Even the variation in a slight angle can cause a huge difference. In such cases, the idea-expression dichotomy proffers no solution and is therefore, at times, inadequate22. 79. That, the Hon’ble Court may kindly allow the defendant to proceed with the sale and further publication of his new book, “Dashmesh Prakash.” 80. That, the counsel for defendant has beyond doubt proven that the book does not infringe any copyrights. It is a new literary work and has passed all major tests laid down by the law as well as the precedents.

22

Angela D’Souza, Intepat, “Idea-Expression Dichotomy Under Copyright Law”, (October 18, 2016)

https://www.intepat.com/blog/copyright/idea-expression-dichotomy-copyright-law/ visited on November 8, 2018.

PRAYER

Wherefore, in the light of the issues raised, arguments advanced and authorities cited, it is humbly requested that the Honourable Court may be pleased to adjudge and declare that: (a) That, the book “Dashmesh Prakash” does not infringe the copyright held by the Plaintiff. (b) That, the Defendant be allowed to proceed with its sale and further publication.

And pass any such order that the Honourable Court deems fit and proper in the interest of justice. For this act of kindness the Counsel for the Defendant, as in duty bound, shall forever pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_________________________ Sd/COUNSEL FOR THE DEFENDANT