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TEAM CODE: - TA 10

INTRA TRIAL ADVOCACY COMPETITION– 2016

In the “Hon’ble District Court” of the Dehradun


Civil Suit No. ____Of 2016

Under Section 62 of “Copyright Act, 1957” read with Section 20 of the “Civil Procedure
Code” of 1908

Mr. Gopal Singh,

(Plaintiff)

V.

Mr. Mohan Sharma,


(Defendant 1)

&

Publisher, Madhushan Publishing Co. Pvt. Ltd.


(Defendant 2)

On submission to the Hon’ble District Court of Dehradun

MEMORANDUM ON BEHALF OF THE PLAINTIFF

Memorandum for the plaintiff


ii

TABLE OF CONTENTS

Table of Contents……………………………………………………………………………...ii
List of Abbreviations…………………………………………………………………………iii
Index of Authorities…………………………………………………………………………...v
Statement of Jurisdiction………………………………………………………………….....viii
Statement of Facts…………………………………………………………………………….ix
Statement of Issues………………………………………………………………………….....x
Summary of Arguments……………………………………………………………………....xi
Arguments Advanced……………………………………………………………………….....1
ISSUE 1: WHETHER THERE WAS AN INFRINGEMENT OF COPYRIGHT OR
NOT...........................................................................................................................................1

1.1 Copyright subsisted in the works of Shyam Singh ‘Madhav’……………………………..1


1.1.1 Moral Rights of the plaintiff are infringed………………………………………….2
1.1.2 Economic Rights of the plaintiff are infringed……………………………………..3
1.2 Mohan Sharma will be liable for infringement of copyright………………………………3
1.3 Madhushan Publishing Company is liable for infringement of copyright…………………5

ISSUE 2: WHETHER THE HON’BLE COURT SHOULD GIVE INJUNCTION


ORDERS AND DAMAGES TO THE PLAINTIFF...............................................................6

1.1 Permanent injunction should be passed……………………………………………………6


1.2 Interim relief should be given……………………………………………………………...7
1.3 Damages of Rs. 5 Lakh should be given……………………………………………………8

Prayer……………………………………………………………………………………..….xii

Memorandum for the Plaintiff ii


iii

LIST OF ABBREVIATIONS

& And
¶ Paragraph
Acc. According
AIC Agricultural Insurance Company
AIR All India Reporter
ALT Andhra Law Times
AP Andhra Pradesh
APLJ Australian Property Law Journal
Andh. Andhra
Ano. Another
Art. Article
Bom. Bombay
Civ Civil
Co. Company
Const. Constitution
Corpn Corporation
CPC Civil Procedure Code
CR Criminal
Cri. Criminal
DB Division Bench
Del Delhi
DLT. Delhi Law Times
Ed. Edition
Govt. Government
Harv. Harvard
Hon’ble Honourable
ILR Indian Law Reports
Inc. Incorporation
IPC Indian Penal Code
Ker Kerala
KLT Kerala Law Times
LR Law Report

Memorandum for the Plaintiff iii


iv

Ltd. Limited
Mad. Madras
MIPR Military Interdepartmental Purchase
Request
MNCs Multi-National Companies
MP Madhya Pradesh
MPC Madhusudan Publishing Company
Mr. Mister
NCT National Capital Territory
Ors. Others
PIL Public Interest Litigation
PP. Pages
Prof Professor
Pvt. Private
Raj. Rajasthan
Rs. Rupees
SC Supreme Court
SCC Supreme Court Cases
Supl. Supplementary
UDHR Universal Declaration of Human Rights
UOG Union of Gotham
U.P. Uttar Pradesh
U.S United States
V. Versus
Viz. Videlicet
Vol. Volume

Memorandum for the Plaintiff iv


v

INDEX OF AUTHORITIES

TABLE OF CASES

1. Academy of General Education v. B.Malini Mallya, (2009) 4 SCC 256: (2009) 2 SCC
(Civ) 122: AIR 2009 SC 1982.
2. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001).
3. Amar Nath Singh v. Union of India, 2005.
4. Apple Computer, Inc. v. Formula Int’l, Inc., 725 F.2d 521 (9th Cir. 1984).
5. Associated Electronic and Electrical Industries v. Sharp Tools, AIR 1991 Kant 406
6. Baxter v. MCA, Inc., 821 F.2d 421, 423 (9th Cir.), 484 U.S. 954 (1987).
7. Blackwood v. Parasuraman, AIR 1971 Bom. 48.
8. Blackwood and Sons Ltd. v. A.N. Parasuraman, AIR 1959 Mad 410.
9. Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 520-23 (4th Cir. 2003)
10. Cadence Design Sys. Inc. v. Avant! Corp., 125 F.3d 824,827 (9th Cir. 1997).
11. C. Cunnaiash and Co. v. Balraj and Co., AIR 1961 Mad. 22.
12. Chi-boy Music v. Charlie Club, Inc., 930 F.2d 1224, 1229 (7th Cir. 1991)
13. Dabur India Ltd. v. K.R Industries,(2008) 10 SCC 595: (2008) 69 AIC 180 (SC): AIR
2008 SC 3123
14. D. Narayan v. V. Prasad, (1979) 2 APLJ 231.
15. Deltak, Inc. v. Advanced Sys. Inc., 754 F.2d 467, 471 (2nd Cir. 1985).
16. Duchess Music Corp. v. Stern, 458 F.2d 1305(9th Cir. 1972).
17. Fateh Singh Mehta v. O.P. Singhal, AIR 1990 Raj. 8
18. Fiest Publications v. Rural Telephone Service, 499 U.S. 340 (1991).
19. Goldenberg v. Doe, 731 F. Supp. 1155, 1159-60 (E.D.N.Y. 1990).
20. Hindustan Lever Ltd. V. Ashok Vishnu Kate,(1995) 6 SCC 326: 1995 SCC (L&S) 1385
21. Lallubhai v. Laxmishankar, AIR 1945 Bom. 51: 1946 Bom. LR 679.
22. Lakedreams v. Taylor, 932 F.2d 1103 (5th Cir. 1991).
23. Lipton v. Nature Co., 71 F.3d 464, 471 (2d Cir. 1995).
24. Microsoft Corpn. v. Kiran, 2007 SCC OnLine Del. 1209: (2007) 144 DLT 274 (Del.).
25. NOIDA v. Desh Raj, (2010) 15 SCC 451: (2013) 2 SCC (Civ) 84
26. N.T. Raghunathan v. A.I.R. Ltd., AIR 1971 Bom. 48.
27. Paragon Rubber Industries v. Paragathi Rubber Mills,(2014) 14 SCC 762
28. Plains Cotton Co-op. v. Goodpasture Computer Service, Inc., 725 F.2d 1256, 1259 (5th
Cir. 1987).
29. Phelps & Assoc., LLC v. Galloway, 477 F.3d 128 (4th Cir. 2007).
Memorandum for the Plaintiff v
vi

30. Raghunathan v. All India Reporter, AIR 1971 Bom. 48.


31. R.G. Anand v. Delux Films, AIR 1978 SC 1613.
32. R. Madhavan v. S.K. Nayar, AIR 1978 SC 1613: (1978) 4 SCC 118.
33. Sakiri Vasu v. State of U.P, (2008) 2 SCC 409: (2008) 1 SCC (Cri) 440
34. Sony Corp. v. Universal City Studios, 464 U. S., at 486
35. State of Haryana v. State of Punjab, (2004) 12 SCC 673.
36. State of Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26
37. Tata Consultancy Services v. State of A.P., AIR 2005 SC 371.
38. Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1170 (7th Cir. 1997).
39. Urmi Juvekar Chiang v. Global Broadcast News Limited, 2007 (4) All MR 617: 2008
(2) Bom CR 400: (2007) 109 Bom LR 981: MIPR 2007 (2) 223: 2008 (36) PTC 377.
40. University of London Press Ltd. v. University Tutorial Press Ltd., (1916) 2 ChD 601
41. Vishaka v. State of Rajasthan, AIR 1997 SC 3011.
42. Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.), 476 U.S. 1159 (1986).
43. Walter v. Wane, (1900).
44. Warner Bros., Inc. v. Dae Rim Trading Inc., 877 F.2d 1120 (2nd Cir. 1989).

BOOKS CITED / REFERRED

1. Cornish W.R. Intellectual Property: Third Edition, First Indian Reprint by University
Law Publishing, Delhi (2001)
2. Bhandari, Dr. M. K., 2012. Law relating to Intellectual Property Rights. 3rd ed.
Allahabad: Central Law Publications
3. Paul, Meenu, 2003. Intellectual Property Law. 1st ed. Delhi: Allahabad Law Agency
4. Jacob, Sir Robin, 2004. A Guide Book to Intellectual Property. 5th ed. London: Sweet
and Maxwell.
5. Warrier, Vishnu, 2015. Understanding Patent Law. 1st ed. Gurgaon: Lexis Nexis.
6. K. Yu, Peter, 2012. Intellectual Property and Information Wealth. 4th ed. Delhi:
Pentagon Press.
7. Llewelyn, D., 2010. Intellectual Property, Patents, Copyright, Trade Marks and Allied
Rights. 7th ed. New Delhi: Sweet and Maxwell.
8. D. Llewelyn, w. Cornish, 2008. Intellectual Property, Patents, Copyright, Trade Marks
and Allied Rights. 2nd ed. New Delhi: Sweet and Maxell
9. Cornish, William, 2006. Cases and Materials on Intellectual Property. 5th ed.: Sweet
and Maxell

Memorandum for the Plaintiff vi


vii

10. Epstein, Michael A., 2008. Epstein on Intellectual Property. 5th ed. New Delhi: Wolters
Kluwer
11. Singh, Dr. Raghubir, 2014. Law relating to Intellectual property. 3rd ed. New Delhi:
Universal Law Publishing Co.
12. Sarkar, Sudipto, 2009. Law of Evidence in India. 16th ed. Nagpur: Lexis Nexis
13. V R Manohar, Justice Y V Chandrachud, 2006. Law of Evidence in India. 21st ed.
Nagpur: Lexis Nexis

LEGISLATIONS REFERED

1. Code of Civil Procedure, 1908


2. Indian Evidence Act, 1872
3. Copyright Act, 1857
4. Specific Relief Act, 1963

CONVENTIONS AND TREATIES

1. Universal Declaration of Human Rights, 1948.

Memorandum for the Plaintiff vii


viii

STATEMENT OF JURISDICTION

The plaintiff has approached the Hon’ble District Court under Section 62 of Copyright Act,
1957 with Section 20 of Civil Procedure Code, 1908:

62. Jurisdiction of court over matters arising under this Chapter. - (1) Every suit or other
civil proceeding arising under this Chapter in respect of the infringement of copyright in any
work or the infringement of any other right conferred by this Act shall be instituted in the
district court having jurisdiction.

(2) For the purpose of sub-section (1), a “district court having jurisdiction” shall,
notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any
other law for the time being in force, include a district court within the local limits of whose
jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting
the suit or other proceeding or, where there are more than one such persons, any of them
actually and voluntarily resides or carries on business or personally works for gain.

Read with Section 20:

20. Other suits to be instituted where defendants reside or cause of action arises: - Subject to
the limitations aforesaid, every suit shall be instituted in a Court within the local limits of
whose jurisdiction—

(a) The defendant, or each of the defendants where there are more than one, at the time of the
commencement of the Suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of
the suit, actually and voluntarily resides, or carries on business, or personally works for gain,
provided that in such case either the leave of the Court is given, or the defendants who do not
reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such
institution; or

(c) The cause of action, wholly or in part, arises.

Memorandum for the Plaintiff viii


ix

STATEMENT OF FACTS

I. Shyam Singh ‘Madhav’, a writer passed away on 1st November, 2015. His lawyer
disclosed the contents of his will which bequeathed all of his works copyright therein
upon his son, Gopal Singh.
II. Mr. Gopal, donated the books to a local private library called Shri Giridhar Library,
looked after by Keshav Prasad(owner), and asserted a copyright in all the books and drew
up a license agreement for unpublished works which included a 5 poem book “Radiance”.
Keshav Prasad had a helper named Mr. Banwari and a guard Mr. Banke who maintained
an entry register at the gate.
III. On 11th December, 2015, Mr. Keshav Prasad found Radiance missing. On checking, he
found that over 70 people had come to the library and gone between yesterday and then.
He immediately filed an FIR with the police and informed Gopal Singh. However over
the next few months, the matter went on the backburner for the police as well as for the
library.
IV. On the morning of 8th March 2016, Gopal Singh noticed a small piece of article ‘Launch
of “Iridescence”: by Mohan Sharma ‘Murlidhar’’. It said that the launch took place in
Dehradun on 7th March and that Mohan Sharma, a journalist and poet, may very well be
in line for receiving the Gyanpeeth Award for his career.
V. On 15th March, Keshav called Gopal to the library and showed him the newly ordered
book called ‘Iridescence’. Gopal noticed that it was a copy of Radiance. It was a
collection of five poems and some titles and lines appeared to be similar. Though it was
not a verbatim copy of Radiance, the last poem had striking similarity.
VI. Further Banwari had left the services of Keshav in January and joined Madhusudan
Publishing Company Pvt. Ltd. as a staff. MPC, a Company registered and having its
office in Dehradun. The same company that published Mohan Sharma’s ‘Iridescence’.
VII. Gopal Singh contacted Mr. Govind Shrivastav, an old friend of his father. During his
lifetime, his father would send manuscripts of his works to Mr. Govind for comments.
He found out that his father did send him the copy of the collection of poems.
VIII. After going through the manuscript sent by Mr. Govind, Mr. Gopal sent a cease and desist
notice to Mr. Mohan and MPC. However, Mr. Mohan responded by asserting that he had
not infringed copyright in any work, and that Iridescence was his original work that he
wrote taking consultation from Mr. Natwar, his editor and an employee of MPC. Mr.
Gopal filed a civil suit for copyright infringement against Mohan Sharma.

Memorandum for the Plaintiff ix


x

STATEMENT OF ISSUES

ISSUE 1: WHETHER THERE WAS AN INFRINGEMENT OF COPYRIGHT OR


NOT?

1.1 Copyright subsisted in the works of Shyam Singh ‘Madhav’


1.1.1 Moral Rights of the plaintiff are infringed
1.1.2 Economic Rights of the plaintiff are infringed
1.2 Mohan Sharma will be liable for infringement of copyright.
1.3 Madhushan Publishing Company is liable for infringement of copyright

ISSUE 2: WHETHER THE HON’BLE COURT SHOULD GIVE INJUNCTION


ORDERS AND DAMAGES TO THE PLAINTIFF?

2.1 Permanent injunction should be passed.


2.2 Interim relief should be given
2.3 Damages of Rs. 5 Lakh should be given

Memorandum for the Plaintiff x


xi

SUMMARY OF ARGUMENTS

ISSUE 1: WHETHERDEFENDANTS HAS INFRINGED COPYRIGHT OF THE


PLAINTIFF?

It is humbly submitted before the Hon’ble District Court that the defendant has infringed the
copyright of the plaintiff on the unpublished book “Radiance” by publishing it with a different
name and a slight difference in the words with same meaning. According to Section 13 of the
Copyright Act, 1957 copyright subsists throughout India on original literary, dramatic, musical
and artistic works. According to Section 57 of the Act author has special rights to claim
authorship of the work and to restrain and claim damages in respect of any distortion,
mutilation, modification or other act in relation to the said work which is done before the
expiration of the term of the copyright.

ISSUE 2: WHETHER THE HON’BLE COURT SHOULD GIVE INJUNCTION


ORDERS AND DAMAGES TO THE PLAINTIFF?

The plaintiff humbly submits before the Hon’ble Court that injunction orders should be passed
in order to stop the publishing of the book “Iridescence”. A decree for injunction is an equitable
relief. In the present case, the plaintiff is seeking the relief by way of restraining defendant
from infringing his copyright through permanent injunction, interim injunction, perpetual
injunction and ad interim injunction. In case of injunction a party is prevented from doing a
particular thing or continuing with a particular action.

Memorandum for the Plaintiff xi


1

ARGUMENTS ADVANCED

ISSUE 1: THAT THE DEFENDANTS HAS INFRINGED THE COPYRIGHT OF THE


PLAINTIFF.

It is humbly submitted before the Hon’ble District Court that the defendant has infringed the
copyright of the plaintiff on the unpublished book “Radiance” by publishing it with a different
name and a slight difference in the words with same meaning.

1.1 Copyright subsisted in the works of Shyam Singh ‘Madhav’

According to Section 13 of the Copyright Act, 1957 copyright subsists throughout India on
original literary, dramatic, musical and artistic works. The words ‘literary work’1 cover work
which is expressed in print or writing, irrespective of the question whether the quality or style
is high. The word ‘literary’ seems to be used in a sense somewhat similar to the use of the word
‘literature’ in political or electioneering literature and refers to written or printed matter.2 In the
present case the poems written by the deceased comes under literary work and the copyright of
which was well bequeathed by him to his son, Gopal Singh, by the way of will.3

Referring to the essentials of copyright we see that:

 There should be a creation of statute


 There should be multiple rights
 The work must be original
 Copyright exists in expression of idea and not the idea itself.

In the present case the creation of statute as given in Section 16 4 has been fulfilled. Further,
copyright is not a single right, rather it is a bundle of rights in the same work. It comprises of,
in case of literary work, right to reproduction, right to translation, right to adaptation, right to
dramatic and cinematographic version, right to public preformation and right to serial
publication. All these rights subsisted with Shyam Singh is the present case. Further, use of
original skill and labour is essential to acquire copyright in a work.5 As evident by the statement
of Mr. Govind Shrivastav, an old friend of the author and also a Professor at the University of

1
Section 2(m), Copyright Act, 1957.
2
University of London Press Ltd. v. University Tutorial Press Ltd., (1916) 2 ChD 601.
3
Refer Fact Sheet, Page 2, and ¶ 1.
4
“No copyright except as provided in this Act.- No person shall be entitled to copyright or any similar right in
any work, whether the provisions of this Act or any other law for the time being in force, but nothing in this
section shall be construed as abrogating any right or jurisdiction to restrain breach of trust or confidence.”
5
C. Cunnaiash and Co. v. Balraj and Co., AIR 1961 Mad. 22.

Memorandum for the Plaintiff 1


2

Literary Studies, that Shyam Singh would invariably send manuscripts of his works to his
friend and that also included Radiance.6Copyright law protects particular expression of
ideas.7The idea of the poems was completely his own and was not copied from anyone. Plus,
it was not just an idea but was written down as well.8

The claim of copyright by a person is based on his creativity in some or other tangible form.
The person who first gives the concrete shape to the idea is entitled to copyright. The claim of
the first ownership is based on the authorship. Under section 17 the first ownership of copyright
is given to the author of the work. In Tata Consultancy Services v. State of A.P.9, the Supreme
Court has made it clear that copyright remains with the originator of the intellectual property.
Thus, the copyright of the poem well existed with Shyam Singh and he had full authority to
bequeath it to whoever he wants and is willing to. The author can transfer his rights through
assignment or grant permissive use of copyright to any person.

Further, the plaintiff humbly contends that when the owner of copyright, whether it is published
or unpublished dies, the copyright will pass on to his personal representative as a part of the
estate.10 In the present case, the personal and legal representative of Shyam Singh was Gopal
Singh and thus the assignment of copyright is valid under such Section.

1.1.1 Moral Rights of the plaintiff are infringed

According to Section 57 of the Act author has special rights to claim authorship of the work
and to restrain and claim damages in respect of any distortion, mutilation, modification or other
act in relation to the said work which is done before the expiration of the term of the copyright.
“In the material world, laws are geared to protect the right to equitable remuneration. But life
is beyond the material. It is temporal as well. Many of us believe in the soul. Moral rights of
the author are the soul of his works. The author has a right to preserve, protect and nurture
his creations through his moral rights.”11

Further, according to Article 27(2) of the Universal Declaration of Human Rights everyone has
the right to the protection of the moral and material interest resulting from any scientific,
literary or artistic production of which he is the author. Under the case Vishaka v. State of

6
Refer Fact Sheet, Page 2, ¶ XI
7
N.T. Raghunathan v. A.I.R. Ltd., AIR 1971 Bom. 48.
8
Refer Fact Sheet, Annexure III.
9
AIR 2005 SC 371.
10
Section 20, The Copyright Act, 1957.
11
Justice Pradeep Nandra jog: Amar Nath Singh v. Union of India, 2005.

Memorandum for the Plaintiff 2


3

Rajasthan,12 the Supreme Court held that provision of international conventions can be read
into the Constitution where there is no contrary domestic law in the field.

Moral rights also include right of paternity which refers to a right of an author to claim
authorship of a work and a right to prevent all others from claiming authorship of work. It also
includes right of integrity that empowers the author to prevent distortion, mutilation or other
alteration of his work, or any other action in relation to said work, which would be prejudicial
to his honour or reputation.

1.1.2 Economic Rights of the plaintiff are infringed

The rights are mainly in respect of literary, to reproduce the work in any material form
including the storing of it in any medium by electronic means, to issue the copies of the work
to the public, to perform the work in the public or communicating it to the public, and to make
any translation or adaptation of the work. The first owner of the copyright shall be entitled to
have or right to share in the resale price of such original copy.

In the present case, the defendants have violated moral as well as economic rights of the
plaintiff by reproducing and publishing it. Thus, this will amount to infringement of copyright
of the plaintiff.

1.2 Mohan Sharma will be liable for infringement of copyright.

Infringement prima facie means unauthorised and illegal reproduction of work of others. The
relevant factors which need to be addressed in determining the infringement are13-

 Copying and substantial copying;


 Subconscious copying;
 Indirect copying; and
 Direct evidence of copying from the work in which copyright subsists.

According to Section 51 copyright of a person is deemed to be infringed when any person,


without a licence granted by the owner of the copyright does anything, which is the exclusive
right to do conferred by the Act upon the owner of the copyright. Where a person has a
copyright in a literary work and any other person produces or reproduces the work or any

12
AIR 1997 SC 3011.
13
See Cornish W.R. Intellectual Property: Third Edition, First Indian Reprint by University Law Publishing,
Delhi (2001), pp. 360-362.

Memorandum for the Plaintiff 3


4

substantial part thereof in any material form, he is committing an infringement of copyright. 14In
the present case the original work by Shyam was copied by the defendant. Although the words
of the poems were not exactly same but yet the meaning were completely same. In fact the last
poem had not much difference except the names of the ideals. In the original work the names
are given of Hindu ideals15 and in the copied poem the names are of Christian ideals16.

It is not necessary that the alleged infringement should be an exact or verbatim copy of the
original but its resemblance with the original in a large measure is sufficient to indicate that it
is a copy.17Here, the first four poems are not exact or verbatim copy of Radiance 18 but yet
comes under copyright infringement because the meaning of the poem were same. Even a small
part of work used may constitute infringement. In D.Narayan v. V. Prasad19, court held that
substantial part of work has been copied and thus there has been infringement of copyright.
Further, the piracy in an alleged infringing work may be detected by making a careful
examination of it to see whether any of the deviations and mistakes, which license permits in
the original have been reproduced into the alleged infringing copy. 20 If a careful examination
will be made of the poems a reasonable man will see the similarity.

One of the surest 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 would be
clearly of the opinion and get an unmistakable impression that the subsequent work appears to
be a copy of the first. In other words, dealing with the question of infringement of copyright of
the applicant’s work by the respondent’s work, the court is to test on the visual appearance of
the object and drawing, design or artistic work in question, and by applying the test, viz., ‘lay
observer test’ whether to persons who are not experts in relation to objects of that description,
the object appears to be a reproduction.21

Reproduction of publication of translation without consent or licence of the owner of the


copyright in the original would amount to infringement.22 Also, here there has been abridgment

14
Fateh Singh Mehta v. O.P. Singhal, AIR 1990 Raj. 8; Walter v. Wane, (1900); Fiest Publications v. Rural
Telephone Service, 499 U.S. 340 (1991).
15
Refer Fact Sheet, Annexure III
16
Refer Fact Sheet, Annexure II
17
R.G. Anand v. Delux Films, AIR 1978 SC 1613.
18
Refer Fact Sheet, Page 2, ¶ IX.
19
(1979) 2 APLJ 231.
20
Lallubhai v. Laxmishankar, AIR 1945 Bom. 51: 1946 Bom. LR 679.
21
Associated Electronic and Electrical Industries v. Sharp Tools, AIR 1991 Kant 406; R. Madhavan v. S.K.
Nayar, AIR 1978 SC 1613: (1978) 4 SCC 118.
22
Blackwood v. Parasuraman, AIR 1971 Bom. 48.

Memorandum for the Plaintiff 4


5

in the present case. Abridgement is the reproduction of an original work in a much more precise
and concise way. A genuine abridgement of a literary work is an original work and is a subject
matter of copyright.23

Therefore, the plaintiff humbly submits before the Hon’ble court that Mohan Sharma has
infringed the copyright of Gopal Singh and therefore he is liable for infringement of copyright.

1.3 Madhushan Publishing Company is liable for infringement of copyright

The plaintiff humbly submits before the Hon’ble court that along with Mohan Sharma,
Madhushan Publishing Company will also be liable for the infringement of copyright. Here
arises secondary liability or contributory liability. Contributory liability or contributory
infringement has been defined as a form of liability on the part of someone who is not directly
infringing but nevertheless is making contributions to the infringing acts of others. Material
contributions to the act, as well as knowledge of the act itself, are key elements of contributory
liability.24

Copyright infringement is where the copyrighted work is duplicated by another person without
the consent of the owner or the existence of any lawful excuse by another with the aid of
another.25Further, MPC is an interested party here. By publishing this poem and book the
company is going to make a lot of profits and also as the author was about to receive Gyanpeeth
Award for his works26, then the book selling will increase more. Knowledge is not an element
of copyright infringement, thus even if the infringer has no knowledge of the copyrighted
product being infringed, same is not defence.27

According to Section 52(g) of the Copyright Act, 1957 “the publication in a collection, mainly
composed of non-copyright matter, bona fide intended for the use of educational institutions…”
does not come under infringement of copyright. On analysing this Section, one can come to
the conclusion that any publishing contrary to this will come under copyright infringement. In
the present case, the publication was of copyrighted matter and also not for educational
purposes, therefore, the publishing company will be liable for the infringement of copyright.

23
Raghunathan v. All India Reporter, AIR 1971 Bom. 48.
24
Sony Corp. v. Universal City Studios, 464 U. S., at 486 (Blackmun, J., dissenting); 3 M. Nimmer & D.
Nimmer, Copyright § 12.04[A] (Indian Rep. 2010).
25
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001).
26
Refer Fact Sheet, Page 1, ¶ VII.
27
Microsoft Corpn. v. Kiran, 2007 SCC OnLine Del. 1209: (2007) 144 DLT 274 (Del.).

Memorandum for the Plaintiff 5


6

Also, according to Section 14 of the Act, copyright means the exclusive right for the creation
of some literary work and anyone who reproduces such work in any material form or translates
or adapts the work is liable for infringement of copyright. Further, it is well known that
reproduction of work for the purpose of its being so published gives the publication the title of
becoming the owner of the work. MPC well knew that they would get the title of book which
they are not authorised to even then they published the work and this amounts to infringement.

Therefore, the plaintiff humbly submits before the Hon’ble Court that the defendant,
Madhushan Publishing Company is liable for the infringement of copyright.

ISSUE 2: THAT THE HON’BLE COURT SHOULD PASS INJUNCTION ORDERS


AND ALLOW DAMAGES TO THE PLAINTIFF.

The plaintiff humbly submits before the Hon’ble Court that injunction orders should be passed
in order to stop the publishing of the book “Iridescence”. A decree for injunction is an equitable
relief.28In the present case, the plaintiff is seeking the relief by way of restraining defendant
from infringing his copyright through permanent injunction, interim injunction, perpetual
injunction and ad interim injunction. In case of injunction a party is prevented from doing a
particular thing or continuing with a particular action.29

2.1 Permanent injunction should be passed.

A permanent or perpetual injunction is the one that is granted by the judgement that ultimately
disposes the suit, ordered at the time of the final judgement. This type of injunction are the
final relief. Permanent injunction are perpetual, provided that that the conditions that produce
them remain constant. As it is clear from Section 37(2) of the Specific Relief Act, 1963, a
perpetual injunction can only be granted by the decree made at the hearing and upon the merit
of the suit. The defendant is thereby perpetually enjoined from the assertion of a right from the
commission of an act which would be contrary to the right of the plaintiff. Section 38 of the
Act further provides the circumstances where the perpetual injunction may be granted in favour
of the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly
or by implication.

Under CPC in claims arising under statutes governing substantive or procedural law, a number
of remedies maybe combined. The court may grant an order of injunction even in a passing-off

28
Academy of General Education v. B.Malini Mallya, (2009) 4 SCC 256: (2009) 2 SCC (Civ) 122: AIR 2009 SC
1982.
29
State of Haryana v. State of Punjab, (2004) 12 SCC 673.

Memorandum for the Plaintiff 6


7

action. It is trite that where the court has jurisdiction to adjudicate, it will necessary have the
incidental power thereof.30

There is an immediate need to stop the publishing of the book by the way of permanent
injunction. A permanent injunction is final and conclusive of the facts in the context of which
the injunction is granted.31According to Section 110 of Indian Evidence Act, 1872, where the
respondents are unable to prove the title of possession, courts are justified in decreeing suit for
permanent injunction.32

Some courts have held that even where there is no evidence of access, “a striking similarity”
test between the works may give arise to a permissible inference of copying. 33Work of
defendant consisted of string of passages from the plaintiff’s work, copied mostly in author’s
own words but knit together by few sentences omitting colourful description constitute
infringement.34

2.2 Interim relief should be given

Interim relief is defined as a grant of something to give short-term help, or an order by the court
before a full trial to preserve the current situation until the trial.For grant of interim relief, it
has to be ascertained whether work of defendant is similar in material and substantial aspects
with that of plaintiff. Standard to be applied is form standpoint of observations and impressions
of an average viewer.35 In the present case, there were striking similarities36 in the work of the
plaintiff and that of the defendant.

In considering an award of preliminary injunctive relief- an immediate court order- to prevent


or restrain infringements of copyright,37 the following four factors typically are relevant: the

30
Dabur India Ltd.v. K.R Industries,(2008) 10 SCC 595: (2008) 69 AIC 180 (SC): AIR 2008 SC 3123; state of
Punjab v. Devans Modern Breweries Ltd., (2004) 11 SCC 26; Sakiri Vasu v. State of U.P, (2008) 2 SCC 409:
(2008) 1 SCC (Cri) 440; Hindustan Lever Ltd. V. Ashok Vishnu Kate,(1995) 6 SCC 326: 1995 SCC (L&S)
1385; Paragon Rubber Industries v. Paragathi Rubber Mills,(2014) 14 SCC 762.
31
Ibid.0)
32
NOIDA v. Desh Raj, (2010) 15 SCC 451: (2013) 2 SCC (Civ) 84.
33
Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1170 (7th Cir. 1997) (“[S]imilarity that is so close as to be
highly unlikely to have an accident of independent creation is evidence of access.”); Lipton v. Nature Co., 71 F.3d
464, 471 (2d Cir. 1995); Baxter v. MCA, Inc., 821 F.2d 421, 423 (9th Cir.), cert. denied, 484 U.S. 954 (1987).
Some court ask whether the established copying was an “illicit copying”- an improper appropriation of the
copyrighted work. This determination also is made by use of the substantial similarity test. See Walker v. Time
Life Films, Inc., 784 F.2d 44, 48 (2d Cir.), cert. denied, 476 U.S. 1159 (1986).
34
Blackwood and Sons Ltd. v. A.N. Parasuraman, AIR 1959 Mad 410.
35
Urmi Juvekar Chiang v. Global Broadcast News Limited, 2007 (4) All MR 617: 2008 (2) Bom CR 400: (2007)
109 Bom LR 981: MIPR 2007 (2) 223: 2008 (36) PTC 377.
36
Refer Fact sheet, Page 2, ¶ IX.
37
Lakedreams v. Taylor, 932 F.2d 1103 (5th Cir. 1991).

Memorandum for the Plaintiff 7


8

likelihood of plaintiff’s success on the merits; irreparable harm to the copyright holder if
infringement is not restraint; the existence of serious question on the merits; and the balance of
the hardships to both the parties.38 Many courts have held that when a reasonable likelihood of
success on the merits or a prima facie case of copyright infringement is established, irreparable
injury is to be presumed.39 In addition to injunction relief, the Act provides that the court may
order impounding of infringing copies.40 A court may also order the destruction or other
reasonable disposition of all infringing copies made or used.41

Therefore, the plaintiff humbly submits before the Hon’ble Court that interim orders to stop
the publication should be passed by the court.

2.3 Damages of Rs. 5 Lakh should be given

Under the Copyright Act of 197642, a copyright proprietor who has established infringement
has the right to recover either

1. Actual Damages suffered by him or her as a result of the infringement.43


2. Statutory Damages.44
The copyright law compensates a copyright owner for the pecuniary damages and losses from
the infringement. Courts can measure damages by a variety of factors, including: (i) injury to
market value of the copyrighted work;45 (ii) plaintiff’s lost profits; and (iii) values actually
placed on the infringed work through prior negotiations between the plaintiff and defendant.46
The plaintiff is entitled to recover the profits attributable to the infringement.47 If a person is
found to be guilty of violation of copyright he will be bound to pay damages48

38
Cadence Design Sys.,Inc. v. Avant! Corp., 125 F.3d 824,827 (9th Cir. 1997); Apple Computer, Inc. v. Formula
Int’l, Inc., 725 F.2d 521 (9th Cir. 1984); Plains Cotton Co-op. v. Goodpasture Computer Service,Inc., 725 F.2d
1256, 1259 (5th Cir. 1987).
39
Phelps & Assoc., LLC v. Galloway, 477 F.3d 128 (4th Cir. 2007).
40
Warner Bros., Inc. v. Dae Rim Trading Inc., 877 F.2d 1120 (2nd Cir. 1989).
41
Duchess Music Corp. v. Stern, 458 F.2d 1305(9th Cir. 1972).
42
Section 55.
43
The copyright owner may be awarded wither his damages (or his lost profits) or the infringer’s profits,
whichever is greater, or both, except to the extent that they are duplicative. Deltak, Inc. v. Advanced Sys., Inc.,
754 F.2d 467, 471 (2nd Cir. 1985).
44
17 U.S.C. ṧ 504© (1988). See Chi-boy Music v. Charlie Club, Inc., 930 F.2d 1224, 1229 (7th Cir. 1991)
45
In so finding, the Court noted that since the nineteenth century the Court has interpreted the constitutional right
to a jury trial in “suits at common law” to apply not only to common law causes of action, but also to those actions
in which legal, as opposed to equitable, rights and remedies were established.
46
See Deltak, Inc. v. Advanced Sys., Inc., 767 F.2d 357 (7th Cir. 1985)
47
Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 520-23 (4th Cir. 2003); Goldenberg v. Doe,
731 F. Supp. 1155, 1159-60 (E.D.N.Y. 1990).
48
Supra at 30.

Memorandum for the Plaintiff 8


13

In the present case, the plaintiff has asked for damages of Rs. 5 lakhs as actual damages and
exemplary damages for the infringement of copyright.

Memorandum for the Plaintiff 13


xii

PRAYER

Wherefore in the light of issues involved, arguments advanced, reasons given and the
authorities cited, this Hon’ble court may be pleased:

TO HOLD:

 Madhusudan Publishing Company and Mr. Mohan Sharma liable for infringing
copyright.
 Mohan Sharma and Madhushan Publishing Company to be liable to pay damages to the
plaintiff.

TO PASS:

 Damages of Rs. 5,00,000


 Interim Orders to stop the publication
 Permanent injuction to ensure that the publication of that book does not happens in
future.

AND/OR

MISCELLANEOUS:

Any other relief which this Hon’ble court may be pleased to grant in the interests of Justice,
Equity and Good Conscience. All of which is respectfully submitted.

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

Sd/-

(Counsels for the Plaintiff)

Memorandum for the Plaintiff xii