Academy of General
Edu., Manipal & ANR. Vs. B.Malini Mallya  INSC 131 (23 January 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 389 OF 2008 [Arising out
of Special Leave Petition (Civil) No. 15612 of 2008] ACADEMY OF GENERAL EDU.,
MANIPAL & ANR. ... APPELLANTS Versus
S.B. SINHA, J.
is a form of ballet dance. It has its own heritage.
Kota Shivarama Karanth (for short, "Dr. Karanth"), a Jnanapeeth
awardee, who was a Novelist, Play Writer, Essayist, Encyclopediationist,
Cultural Anthropologist, Artist, Writer of Science, Environmentalist. He
developed a new form of `Yakshagana'. He was a 2 Director of the appellant -
institute. On or about 18.6.1994, he executed a Will in favour of the
respondent. Dr. Karanth expired on 9.12.1997.
dance as developed by Dr. Karanth was performed in New Delhi on or about
18.9.2001. Respondent filed a suit for declaration, injunction and damages
alleging violation of the copyright in respect of the said dance vested in her
in terms of the said Will stating that Dr. Karanth developed a new distinctive
dance, drama troop or theatrical system which was named by him as `Yaksha
Ranga' which in his own words mean "creative extension of traditional
Yakshagana" and, thus, the appellants infringed the copyright thereof by
performing the same at New Delhi without obtaining her prior permission. It was
stated that Dr. Karanth had composed seven verses or prasangas for staging
Yaksharanga Ballet apart from bringing in changes in the traditional form
thereof on its relevant aspects, namely, Raga, Tala, Scenic arrangement,
Costumes etc. These prasangas are: (i) Bhishma Vijaya; (ii) Nala Damayanthi;
(iii) Kanakangi or Kanakangi Kalyana; (iv) Abhimanyu or Abhimanyu Vada; (v)
Chitrangadha or Babruvahana Kalaga; (vi) Panchavati; and (vii) Ganga Charitha.
3. Plaintiff -
respondent admittedly claimed copyright in respect of `literary and artistic
works' in her favour in terms of clauses 11 and 12 of the said Will dated
18.6.1994, which read as under:
3 "11. Since I
left the house `suhasa' I have been living in a specially built house
"Manasa" of Smt.
Malini Mallya, who
has built it with borrowed money at her cost. She had joined my service as
Copyist and later, she secured an employment in Life Insurance Corporation of
India. Ever since 1974 till now in my old age she has been serving me with
exemplary devotion and sincerity. And in this occasion I must also acknowledge
with gratitude that she diligently cared and nursed my wife Leela Karanth
during her prolonged illness till her last day. And she has cared and looked
after me also during my illness which at times had been quite serious,
enfeebling me for long period.
In recognition of her
devotion and sincere affection towards me in 1986 I have dedicated one of my
novels namely, "Antida Aparanji" to her. I have also placed on record
her invaluable services to me in my Memoirs, "Hunchu Mansina Hathu
Mukhagalu" 1991 Edition. In my opinion, very long enduring and a signal
service she has done to me and to my literary works is, in writing a
bibliography of all my books- a highly meritorious and scholarly work involving
so much of pains taking research, that it has been acclaimed and rated as the
first of its kind in Kannada and highly appreciated by Critics and Scholars.
Apart from this, she has collected and edited all my stray writings from 1924
onwards upto date in eight Sumptuous volumes which are being published by
Mangalore University. This work also has brought her deserving fame and
appreciation of Scholars. Such painstaking service in this direction has
brought to light several of my hitherto untraced, forgotten and unknown
writings and thereby giving them extended or renewed lease of life. For all
these services, I hereby declare that after my death copyrights in respect of all
my literary works shall vest with Smt. Malini Mallya and she alone shall be
entitled to receive royalties of all my books and she shall be entitled to
print, publish and republish and market the 4 same. Whatever she may earn
thereby shall be her exclusive income and property. No one else shall have any
right or claims for the same.
12. From time to time
I have distributed among my children all gold and silver jewels and ornaments
and other valuables, which were gifted to me by my friends and admirers. And I
have distributed all copper and bronze vessels and utensils among my children
while leaving my former home "Suhasa" keeping only bare essential and
necessary things and articles. Whatever movable properties, books, fittings,
furniture, utensils etc. belonging to me into this house `Manasa' and my Car
and cash money in hand after my death shall go to Smt. Malini Malya only.
No one else shall
have any claim or right over the same. Any outstanding due to me and Bank
Deposits and whatever assets or properties not mentioned above, that is,
residuary after my death shall belong to Smt. Malini Mallya alone."
Respondent, inter alia, prayed for passing a judgment and decree against the
defendants - appellants granting the following reliefs:
declaration that the plaintiff is the exclusive copyright holder in respect of
Yaksharanga ballets, namely, Bhishma Vijaya, Kanakangi, Nala Damayanthi,
Panchavati, Gaya Charitha, Chitrangadha, Abhimanyu Vadha, and for consequential
permanent injunction restraining the Defendants, their agents, employees etc.
from staging or
performing any of the above said 7 ballets or Prasangas or any parts thereof.
2. Directing the
Defendants to pay to the plaintiff damages of Rs.15,000/- towards infringement
of her copyright on account of stating or performing Abhimanyu Vadha on
18-9-2001 at New Delhi.
3. Directing the
Defendants to pay to the plaintiff interest on Rs.15,000/- at 15% p.a.
from 18-9-2001 till
now which is 95-00
4. Directing the
Defendants to pay future interest on Rs.15,000/- at 15% p.a. till payment of
the entire amount.
5. Appellants in
their written statement, however, denied and disputed any copyright of the said
dance in Dr. Karanth alleging that whatever work he had done was in the
capacity of a Director of the Kendra with the assistance, finance and staff
provided by the Organization of Mahatma Gandhi Memorial College Trust in
respect whereof a Committee was formed under him by the Board of Trustees. It
was furthermore contended that Dr. Karanth was appointed as the President of
the Executive Committee of Yakshagana Kendra for a period of three years by the
appellant and while holding the said post only he expired.
6. By reason of a
judgment and decree dated 14.11.2003, the District Judge, Udupi decreed the
said suit declaring the plaintiff - respondent as a person having the exclusive
copyright in respect of seven Prasangas and that she had acquired the same by
reason of a Will as a residuary legatee and the defendants - appellants or
their employees or agents were restrained from performing the said seven ballets
or Prasangas or any parts thereof in any manner as evolved distinctively by Dr.
aggrieved thereby and dissatisfied therewith preferred an appeal before the
Karnataka High Court which was marked as R.F.A. No. 271 of 2004. By reason of
the impugned judgment and order dated 5.12.2007, the said appeal has been
8. Appellants are,
thus, before us.
9. Dr. Rajiv Dhavan,
learned Senior Counsel appearing on behalf of appellants in his usual fairness
i. The copyright in
the literary work has been assigned by reason of the said Will in favour of the
respondent in terms of clause 12 of the Will.
ii. Dr. Karanth has
made substantial changes in the original traditional form of the Yakshagana
dance. Additions made in 7 the form of the said dance including the Prasangas
fell within the purview of `originality' in respect whereof copyright could be
It was, however,
i. Keeping in view of
the findings of the learned trial judge, it ought to have been held that no
cause of action arose against the appellants in this case as the Institution
had performed the said dance at New Delhi in the memory of Dr. Karanth without
charging any fees.
ii. The form of
copyright as regards dramatic work as has been held by the High Court stating
the same to be a part of the literary work is not correct as they connote two
iii. The form of
injunction granted in favour of the plaintiff - respondent is not in terms of
the provisions of the Copyright Act, 1957 as the appellant as an institution or
otherwise is entitled to use the same in terms of clauses (a), (i) and (l) of
sub-Section (1) of Section 52 thereof.
10. Mr. G.V.
Chandrashekhar, learned counsel appearing on behalf of the respondent, on the
other hand, would support the impugned judgment.
11. The Copyright
Act, 1957 (for short, "the Act") was enacted to amend and consolidate
the law relating to copyright.
Section 2 is the
Section 2(c) defines
`artistic work' to mean (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) a work of architecture; and (iii)
any other work of artistic craftsmanship.
The word `author' is
defined in Section 2(d) to mean, (i) in relation to a literary or dramatic
work, the author of the work; (ii) in relation to a musical work, the composer;
(iii) in relation to an artistic work other than a photograph, the artist; (iv)
in relation to a photograph, the person taking the photograph; (v) in relation
to a cinematograph film or sound recording, the producer; and (vi) in relation
to any literary, dramatic, musical or artistic work which is
computer-generated, the person who causes the work to be created.
"communication to the public" as defined in Section 2(ff) reads as
"communication to the public" means making any work available for
being seen or heard or otherwise enjoyed by the public directly or by any means
of display or diffusion other than by 9 issuing copies of such work regardless
of whether any member of the pubic actually sees, hears or otherwise enjoys the
work so made available.
Explanation.- For the
purposes of this clause, communication through satellite or cable or any other
means of simultaneous communication to more than one household or place of
residence including residential rooms of any hotel or hostel shall be deemed to
be communication to the public"
Section 2 (ffa)
defines the word "composer", in relation to a musical work, to mean
the person who composes the music regardless of whether he records it in any
form of graphical notation. Section 2(h) defines "dramatic work" to
include any piece of recitation, choreographic work or entertainment in dumb
show, the scenic arrangement or acting, form of which is fixed in writing or
otherwise but does not include a cinematograph film.
Section 2(o) defines
"literary work" to include computer programmes, tables and
compilations including computer databases. Section 2(qq) defines
"performer" to include an actor, singer, musician, dancer, acrobat,
juggler, conjurer, snake charmer, a person delivering a lecture or any other
person who makes a performance.
10 Section 2(y)
defines "work" to mean any of the following works, namely:- (i) a
literary, dramatic, musical or artistic work; (ii) a cinematograph film; (iii)
a sound recording.
Section 13 which
occurs in Chapter III of the Act provides that subject to the provisions
thereof and the other provisions of the said Act, copyright shall subsists
throughout India in the following classes of works, that is to say,- (a)
original literary, dramatic, musical and artistic works;
films; and (c) sound recording.
Section 17 of the Act
deals with "First owner of copyright", in terms whereof, subject to
the provisions of the Act, the author of a work shall be the owner of the
copyright therein. Proviso (d) appended thereto states that in the case of a
Government work, Government shall, in the absence of any agreement to the
contrary, be the first owner of the copyright therein.
Sections 22, 23 and
52(1)(a), (i) and (l) of the Act, which are relevant for our purpose read as
"22. Term of
copyright in published literary, dramatic, musical and artistic works.- Except
as 11 otherwise hereinafter provided, copyright shall subsist in any literary,
dramatic, musical or artistic work (other than a photograph) published within
the life time of the author until fifty years from the beginning of the
calendar year following the year in which the author dies.
Explanation- In this
section, the reference to the author shall in the case of a work of joint
authorship, be construed as a reference to the author who dies last.
23 - Term of
copyright in anonymous and pseudonymous works.- (1) In the case of a literary,
dramatic, musical or artistic work (other than a photograph), which is
published anonymously or pseudonymously, copyright shall subsist until sixty
years from the beginning of the calendar year next following the year in which
the work is first published:
Provided that where
the identity of the author is disclosed before the expiry of the said period,
copyright shall subsist until sixty years from the beginning of the calendar
year following the year in which the author dies.
(2) In sub-section
(1), references to the author shall, in the case of an anonymous work of joint
authorship, be construed,-- (a) where the identity of the authors is disclosed,
as references to that author;
(b) where the
identity of more authors than one is disclosed, as references to 12 the author
who dies last from amongst such authors.
(3) In sub-section
(1), references to the author shall, in the case of a pseudonymous work of
joint authorship, be construed,-- (a) where the names of one or more (but not
all) of the authors arc pseudonymous and his or their identity is not
disclosed, as references to the author whose name is not a pseudonym, or, if
the names of two or more of the authors are not pseudonyms, as references to
such of those authors who dies last;
(b) where the names
of one or more (but not all) of the authors arc pseudonyms and the identity of
one or more of them is disclosed, as references to the author who dies last
from amongst the authors whose names arc not pseudonyms and the authors whose
names are pseudonyms and are disclosed; and (c) where the names of all the
authors arc pseudonyms and the identity of one of them is disclosed, as references
to the author whose identity is disclosed or if the identity of two or more of
such authors is disclosed, as references to such of those authors who dies
purposes of this section, the identity of an author shall be deemed to have
been disclosed, if either the identity of the 13 author is disclosed publicly
by both the author and the publisher or is otherwise established to the
satisfaction of the Copyright Board by that author.
52. Certain acts not
to be infringement of copyright.- (1) The following acts shall not constitute
an infringement of copyright, namely:- (a) a fair dealing with a literary,
dramatic, musical or artistic work not being a computer programme for the
purpose of-- (i) Private use including research;
(ii) criticism or
review, whether of that work or of any other work;
xxx xxx xxx (i) the
performance, in the course of the activities of an educational institution, of
a literary, dramatic or musical work by the staff and student of the
institution, or of a cinematograph film or a sound recording, if the audience
is limited to such staff and students, the parents and guardians of the
students and persons directly connected with the activities of the institution
or the communication to such an audience of a cinematograph film or sound
xxx xxx xxx (l) the
performance of a literary, dramatic or musical work by an amateur club or
society, if the performance is given to a non-paying audience, or for the
benefit of a religious institution."
12. Before adverting
to the submissions made by the learned counsel for the parties, we may notice
the issues framed in the suit, which are:
plaintiff prove that late Dr. Shivaramaji Karanth had acquired copyright in
respect of seven Yakshagana Prasangas and also in respect of Yakshagana
dramatic or theatrical form i.e., Bhishma Vijaya, Nala Damayanthi, Kanakaangti
or Kanakangi Kalyana, Abhimanyu or Abhimanyu Vadha, Chitrangadha or Babruvahana
Kalaga, Panchavati Chritha followed in the plaint? ii. Has the plaintiff became
entitled to the said right under the Registered Will dated 18.06.1994? iii.
Does the plaintiff prove that her right under the said Will was infringed by
13. Indisputably, in
view of the submissions made at the bar, respondent had acquired copyright in
respect of seven Yakshagana Prasangas as also in respect of Yakshagana dramatic
or theatrical form as a residuary legatee in terms of clause 12 of the Will
15 However, we may
notice that whereas the trial court has proceeded on the basis that clause 12
of the Will shall apply in the instant case, the High Court opined that clause
11 thereof is attracted, stating:
by reading para-12 of the `Will' in isolation, one can certainly arrive at the
conclusion that the bequest made in favour of the plaintiff is in the nature of
But, that is not all,
in the `Will'-Ex. P-1. I have already referred to para No. 11 of the `Will'
while dealing with the topic dramatic works vis- `-vis literary work and
therefore if the `Will' is read in its entirety and if we take into account,
the benefits that flow from the bequest made by Dr. Karanth in favour of the
plaintiff, it is not as if the plaintiff received the bequest only in respect of
the things which form the residuary as mentioned in para-12 of the `Will' but
the plaintiff also was given the copyrights in respect of literary works and
all books as well as the right to print, republished and mark the literary
works as well as the books."
Referring to the new
Encyclopaedia Britannica and Halsbury's Laws of England, that a literary work
with dramatic elements in it would also be literary work, the High Court
also could contain in its, passages of great literary taste, as in the case of
great plays of William Shakespear. Therefore, the main classification as
literary work and dramatic work cannot be construed to mean that dramatic 16
work has nothing to do with literary work. The only difference I see in them is
that the dramatic work (Plays) forms the text upon which the performance of the
plays rests whereas a `literary work' enables one to read the printed words.
Neither of the two
can be produced without the imaginative skill of the author."
It was furthermore
"I am of the
considered opinion that all the above changes brought about by Dr. Karanth in
respect of Yakshagana Ballet leads to the inference that the imaginative
faculties of Dr. Karanth permeated the entire Yakshagana Prasangas and thus a
new look was given to the Yakshagana Ballets. I, therefore, hold that the
bequest of copyright in literary works and books in favour of the plaintiff by
Dr. Karanth, will have to be treated as the bequest covering the dramatic works
also since I have also drawn the conclusion that the dramatic works is also a
form of literature. Therefore, necessity of mentioning copyright separately in
respect of dramatic works does not arise. The plaintiff, therefore, is entitled
to copyright even in respect of the dramatic works namely the seven prasangas,
by virtue of bequest made in her favour in respect of copyrights and
14. Broadly speaking,
a dramatic work may also come within the purview of literary work being a part
of dramatic literature. The new Encyclopaedia Britannica (Vol-IV) 15th Edition,
provides the following information about "Dramatic Literature.
Literature: the texts of plays that can be read, as distinct from being seen
and heard in performance."
We must, however,
notice that the provisions the Act make a distinction between the `literary
work' and `dramatic work'. Keeping in view the statutory provisions, there
cannot be any doubt whatsoever that copyright in respect of performance of
`dance' would not come within the purview of the literary work but would come
within the purview of the definition of `dramatic work'. We, however, do not
mean to suggest that any act of literary work will be outside the purview of
the Will dated 18.6.1994.
Our exercise in this
behalf was only for the purpose of clarifying the provisions of the Act with
reference to the findings arrived at by the High Court.
15. For the
aforementioned reasons, we agree with Dr. Dhavan that paragraph 12 of the Will,
namely, residuary clause shall apply in the instant case apart from the areas
which are otherwise covered by paragraph 11 of the Will. The residuary clause
will apply because it is well settled that no part of the stay lies in limbo.
It was also not a case where respondent in any manner whatsoever waived her
16. The learned trial
judge on issue No. 4 opined that plaintiff had not been able to prove actual
loss or damage particularly having regard to the fact that Dr. Karanth had
associated himself with the appellants for a long time. The learned trial judge
recognized the equitable interest vested in the plaintiff - respondent. A
declaratory decree, therefore, was passed.
17. We may notice at
this stage that the form of injunction granted both by the learned trial judge
as also by the High Court in favour of the plaintiff-respondent. The operative
part of the judgment of the trial court reads as under:
their employees or agents are restrained from performing the above said 7
ballets or Prasangas or in parts thereof in any manner as evolved distinctively
by Dr. Karanth by way of permanent injunction."
The High Court,
"(iii) As far as
the restraint order passed by the Trial Court by granting permanent injunction
to the plaintiff is concerned, the same is modified by ordering that if the
appellants desire to stage any of the seven Yakshagana prasangas in the manner
and form as conceived in all respects viz., costumes, choreography and
direction by Dr.
appellants can do so only in accordance with the provisions of the Copyrights
Act, 1957 in view of copyright in seven prasangas vesting with the
18. Decree for
injunction is an equitable relief. The courts while passing a decree for
permanent injunction would avoid multiplicity of proceedings.
The court while
passing such a decree, is obligated to consider the statutory provisions
governing the same. For the said purpose, it must be noticed as to what is a
copyright and in respect of the matters the same cannot be claimed or otherwise
the same is lodged by conditions and subject to statutory limitation.
19. In R.G. Anand vs.
M/s Delux Films & ors. [(1978) 4 SCC 118], this Court held:
"46. Thus, on a
careful consideration and elucidation of the various authorities and the case
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 legendary
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
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 20 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
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 prospective,
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."
21 Yet again in
Eastern Book Company & ors. vs. D.B. Modak & Anr.
[(2008) 1 SCC 1],
this Court held:
"57. The Copyright
Act is not concerned with the original idea but with the expression of thought.
Copyright has nothing
to do with originality or literary merit. Copyrighted material is that what is
created by the author by his own skill, labour and investment of capital, maybe
it is a derivative work which gives a flavour of creativity. The copyright work
which comes into being should be original in the sense that by virtue of
selection, coordination or arrangement of pre-existing data contained in the
work, a work somewhat different in character is produced by the author. On the
face of the provisions of the Copyright Act, 1957, we think that the principle
laid down by the Canadian Court would be applicable in copyright of the
judgments of the Apex Court. We make it clear that the decision of ours would
be confined to the judgments of the courts which are in the public domain as by
virtue of Section 52 of the Act there is no copyright in the original text of
the judgments. To claim copyright in a compilation, the author must produce the
material with exercise of his skill and judgment which may not be creativity in
the sense that it is novel or non- obvious, but at the same time it is not a
product of merely labour and capital. The derivative work produced by the
author must have some distinguishable features and flavour to raw text of the
judgments delivered by the court. The trivial variation or inputs put in the
judgment would not satisfy the test of copyright of an author."
20. The High Court,
in our opinion, should have clarified that the appellants can also take the
statutory benefit of the provisions contained in clauses (a), (i) and (l) of
sub-section (1) of Section 52 of the Act.
22 Section 52 of the
Act provides for certain acts which would not constitute an infringement of copyright.
When a fair dealing is made, inter alia, of a literary or dramatic work for the
purpose of private use including research and criticism or review, whether of
that work or of any other work, the right in terms of the provisions of the
said Act cannot be claimed. Thus, if some performance or dance is carried out
within the purview of the said clause, the order of injunction shall not be
applicable. Similarly, appellant being an educational institution, if the dance
is performed within the meaning of provisions of clause (i) of sub-section (1)
of Section 52 of the Act strictly, the order of injunction shall not apply
thereto also. Yet again, if such performance is conducted before a non-paying
audience by the appellant, which is an institution if it comes within the
purview of amateur club or society, the same would not constitute any violation
of the said order of injunction.
21. With the
aforementioned modification in the order of injunction, this appeal is
dismissed. However, in the facts and circumstances of the case, there shall be
no order as to costs.
[Lokeshwar Singh Panta]
[B. Sudershan Reddy]