Professional Documents
Culture Documents
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
2. That, the Copyright Act, 1957 defines an infringing copy in Section 2(m) as –
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
programme:
(i) to reproduce the work in any material form including the storing of it in
(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,
work,
(vi) to, do, in relation of any adaptation or translation of the work, any of the
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
c. in the case of an artistic work, to reproduce the work in any material form
(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,
regardless of whether such copy has been sold or given on hire on earlier
occasions,
e. 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,
4. That, in the present case Mr. Ravinder Singh, who is a professor at Delhi University
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
7. That, the Defendant later started to write a series of books on various Sikh Gurus. One
8. That, while his last published work “Dassam Guru” was in press, the Defendant
9. That, upon hearing about the publication of “Dashmesh Prakash”, the Plaintiff filed a
10. That, it is admitted that no higher rights had been conferred on the Plaintiff apart from
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
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
rights.
18. That, quoting a short passage in a scholarly, scientific, or technical work for
19. That, use that benefits the public or that lends to education also weighs heavily in
(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
(b) The purpose of the new work is to compete with the older works. In such cases,
(c) Fair use rule does not mandate the author to credit the works from where he has
(d) The material which has been borrowed from previous publication should not be
(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
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
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/legal-
encyclopedia/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
24. That, according to the Berne Convention for the Protection of Literary and Artistic
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
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
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
“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
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
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
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
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
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
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
40. That, the abovementioned case states that even facts discovered by a certain scientist
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
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
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
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
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
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
53. That, in the case of Matthewson vs Stockdale17, the Hon’ble Court made certain
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
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
“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
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
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
18
Garrold vs Heywood
CONTENTION 3: TEST OF DERIVATIVE WORK DOES NOT APPLY TO THE
60. That, it is humbly submitted before this Hon’ble Court that the new book is merely a
61. That, the copyright law in itself allows the authors to not only have new thoughts but
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
“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
19
Ibid.
64. That, to effectively apply the steps, the Court has to pass the literary work through
(b) The work must bring about a substantial change in the previous work,
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,
67. That, this clearly shows that the defendant has put in a great amount of labour in his
68. That, the second stage requires the new work to bring some major changes as
69. That, as per the facts, the new book “Dashmesh Prakash” has over 200 pages more
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
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
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
76. That, in a similar fashion, even though the idea behind the two books is the same, they
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
79. That, the Hon’ble Court may kindly allow the defendant to proceed with the sale and
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
22
Angela D’Souza, Intepat, “Idea-Expression Dichotomy Under Copyright Law”, (October 18, 2016)
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
For this act of kindness the Counsel for the Defendant, as in duty bound, shall forever pray.
_________________________
Sd/-