TA 10 - Plaint

TEAM CODE: - TA 10 INTRA TRIAL ADVOCACY COMPETITION –  2016  2016

Court  In the “ Hon’ble Di stri ct Court  ” of the Dehradun

Civil Suit No. ____Of 2016

ocedur e Under Section 62 of “Copyright Act , 1957  ”  ” read  read with Section 20 of the “Civi l Pr ocedur

”  ” of  of 1908 Code 

M r. Gopal Gopal Singh,

(Plaintiff)

V.

M r. M ohan ohan Sharma, Sharma,

(Defendant 1) & Publi sher, M adhushan adhushan Publi shi ng Co. Pvt. L td.

(Defendant 2)

On submission to the Hon’ble District Court of Dehradun

MEMORANDUM ON BEHALF OF THE PLAINTIFF

Memorandum for Memorandum for the  plaintiff

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TABLE OF CONTENTS

Table of Conte nts……………………………………………………………………………...ii

List of Abbreviations………………………………………………… Abbreviations………………………………………………………………………… ………………………iii Index of Authorities…………………………………………………………………………...v Statement of Jurisdiction………………………………………………………………….....viii Statement of Facts…………………………………………………………………………….ix

Statement of Issues………………………………………………………………………….....x Summary of Arguments……………………………………………………………………....xi Arguments Advanced……………………………………………………… Advanced……………………………………………………………………… ……………….....1 ISSUE 1: WHETHER THERE WAS AN INFRINGEMENT OF COPYRIGHT OR NOT............................................ ................................................................ ............................................ ............................................ .............................................. .............................1 .....1

1.1 Copyright subsisted in the works of Shyam Sh yam 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............................. PLAINTIFF...................................................... ..................................6 .........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 s hould be given ……………………………………………………8

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

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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

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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 Memorandum for the Plaintiff

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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 Union of India, 2005. 4.  Apple Computer, Inc. v. Formula Formula Int’l, Inc., 725 Inc., 725 F.2d 521 (9 th 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 (9 th Cir.), 484 U.S. 954 (1987). 7.  Blackwood v. Parasuraman, Parasuraman, AIR 1971 Bom. 48. 8.  Blackwood and Sons Sons Ltd. v. A.N. Parasuraman, Parasuraman, AIR 1959 Mad 410. 9.

 Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 520-23 (4 th Cir. 2003)

10. Cadence Design Sys. Inc. v. Avant! Corp., 125 Corp.,  125 F.3d 824,827 (9 th 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 (7 th Cir. 1991) 13. Dabur 13. Dabur India Ltd. v. K.R Industries,(2008) Industries ,(2008) 10 SCC 595: (2008) 69 AIC 180 (SC): AIR 2008 SC 3123 14. D. 14. D. Narayan v. V. Prasad, Prasad, (1979) 2 APLJ 231. 15. Deltak, 15. Deltak, Inc. v. Advanced Sys. Inc., 754 F.2d 467, 471 (2 nd Cir. 1985). 16. Duchess 16. Duchess Music Corp. v. Stern, 458 F.2d 1305(9 th Cir. 1972). 17. Fateh 17. Fateh Singh Mehta v. O.P. O.P. Singhal, AIR Singhal,  AIR 1990 Raj. 8 18. Fiest 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 20. Hindustan Lever Ltd. V. Ashok Ashok Vishnu Kate Kate,(1995) ,(1995) 6 SCC 326: 1995 SCC (L&S) 1385 21. Lallubhai 21. Lallubhai v. Laxmishankar, AIR 1945 Bom. 51: 1946 Bom. LR 679. 22. Lakedreams 22. Lakedreams v. Taylor, 932 F.2d 1103 (5 th Cir. 1991). 23. Lipton 23. Lipton v. Nature Co., 71 F.3d 464, 471 (2d Cir. 1995). 24. Microsoft 24. Microsoft Corpn. v. Kiran, Kiran, 2007 SCC OnLine Del. 1209: (2007) 144 DLT 274 (Del.). 25. NOIDA 25. NOIDA v. Desh Raj, (2010) 15 SCC 451: (2013) 2 SCC (Civ) ( Civ) 84 26. N.T. 26. N.T. Raghunathan Raghunathan v. A.I.R. Ltd., AIR 1971 Bom. 48. 27. Paragon 27. Paragon Rubber Industries Industries v. Paragathi Rubber Mills,(2014) Mills ,(2014) 14 SCC 762 28. Plains 28. Plains Cotton Co-op. v. Goodpasture Computer Computer Service, Inc., 725 F.2d 1256, 1259 (5 th Cir. 1987). 29. Phelps 29. Phelps & Assoc., LLC v. Galloway, 477 F.3d 128 (4 th Cir. 2007). Memorandum for Memorandum for the Plaintiff

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30. Raghunathan 30. Raghunathan v. All India Reporter, AIR 1971 Bom. 48. 31. R.G. 31. R.G. Anand v. Delux Films, AIR Films,  AIR 1978 SC 1613. 32. R. 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, 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 (7 th 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 (2 nd 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 Memorandum for the Plaintiff

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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.

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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. Jur isdiction of cour t ove over matter matter s ari sin g under under thi s Chapter 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 of sub- section  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 sui ts to be i nstituted nstit uted where def def endants ndant s resi resi de or or cause cause of of action ari ar i ses: -  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 Memorandum for the Plaintiff

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STATEMENT OF FACTS

Shyam Singh ‘Madhav’, a writer passed away on 1 st  November, 2015. His lawyer

I.

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 assert ed 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 mai ntained 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 art icle ‘Launch

of “Iridescence”:  by Mohan Shar ma ma ‘Murlidhar’’. It said  that the launch took place in Dehradun on 7th March and that Mohan Sharma, a journalist and poet, may ver y 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’. ‘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 collecti on 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 h e 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.

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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 s hould be given

Memorandum for Memorandum for the Plaintiff

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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 publi shing 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 literar y, 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 i njunction 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.

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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 somewhat similar to the use of the word ‘literature’ in political or electioneering literature and refers to written or prin ted matter.2 In the  present case the poems poems written by the deceased comes under under literary work and the copyright 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 esse ntial 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. University of London Press Ltd. v. University Tutorial Press Ltd., (1916) 2 ChD 601. 3 Refer Fact Sheet, Page 2, and ¶ 1. 4 Act.-  No person shall be entitled to copyright copyright or any similar right in “ No copyright except as provided in this Act.- No any work, whether the provisions of this Act or any other la w 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. 2

Memorandum for Memorandum for the Plaintiff

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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 writ ten 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 t he 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 tr ansfer 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 i n 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 “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

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Refer Fact Sheet, Page 2, ¶ XI  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 jog:  Amar Nath Singh v. Union of India, 2005. 7

Memorandum for Memorandum for the Plaintiff

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 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 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 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 are 13

Copying and substantial copying;

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Subconscious copying;

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Indirect copying; and

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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. See Cornish W.R. Intellectual Property: Third Edition, First Indian Reprint by University Law Publis hing, Delhi (2001), pp. 360-362.

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Memorandum for Memorandum for the Plaintiff

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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 th e original work the names are given of Hindu ideals 15 and in the copied poem the names are of Christian ideals 16. 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. Prasad 19 , 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 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 t o objects of that description, the object appears to be a reproduction. r eproduction.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,  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 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. 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 Memorandum for the Plaintiff

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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 f or 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 a re key elements of contributory liability.24 Copyright infringement is where the copyrighted work is duplicated b y 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 recei ve Gyanpeeth Award for his works 26, 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. defence. 27 According to Section 52(g) of the Copyright Act, 1957 “the publication in a collect ion, ion, mainly composed of non-copyright 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. 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). 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 Kiran, 2007 SCC OnLine Del. 1209: (2007) 144 DLT 274 (Del.). 24

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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 titl e 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 the y 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 thereb y 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 Memorandum for the Plaintiff

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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 j ustified 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 pres erve the current situation until the trial. tri al.For 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) Industries,(2008) 10 SCC 595: (2008) 69 AIC 180 (SC): AIR 2008 SC 3123;  state of  Punjab v. Devans Modern Breweries Ltd., (2004) Ltd., (2004) 11 SCC 26; Sakiri Vasu v. State of U.P,  (2008) 2 SCC 409: (2008) 1 SCC (Cri) 440; Hindustan 440;  Hindustan Lever Ltd. V. Ashok Vishnu Kate,(1995) Kate,(1995) 6 SCC 326: 1995 SCC (L&S) 1385;  Paragon Rubber Industries v. Paragathi Rubber Mills,(2014) 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 (7 th 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., I nc., 821 F.2d 421, 423 (9 th 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) PT C 377. 36 Refer Fact sheet, Page 2, ¶ IX. 37  Lakedreams v. Taylor, 932 F.2d 1103 (5 th Cir. 1991). Memorandum for Memorandum for the Plaintiff

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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 cop yright 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 1976 42, 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 damages 48

Cadence Design Sys.,Inc. v. Avant! Corp.,  125 F.3d 824,827 (9 th Cir. 1997); Apple 1997); Apple Computer, Inc. v. Formula th  Int’l, Inc., 725 Inc., 725 F.2d 521 (9  Cir. 1984); Plains 1984);  Plains Cotton Co-op. v. Goodpasture Computer Service,Inc., Service,Inc., 725 F.2d th 1256, 1259 (5  Cir. 1987). 39  Phelps & Assoc., LLC v. Galloway, 477 F.3d 128 (4 th Cir. 2007). 40 Warner Bros., Inc. v. Dae Rim Trading Inc., 877 F.2d 1120 (2 nd Cir. 1989). 41  Duchess Music Corp. v. Stern, 458 F.2d 1305(9 th Cir. 1972). 42 Section 55. 38

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 (2 nd Cir. 1985). 44  17 U.S.C. ṧ 504© (1988). See Chi-boy Music v. Charlie Club, Inc., 930 F.2d 1224, 1229 (7 th 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. See Deltak, Inc. v. Advanced Sys., Inc., 767 F.2d 357 (7 th Cir. 1985) 47  Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 520-23 (4 th Cir. 2003); Goldenberg v. Doe, 731 F. Supp. 1155, 1159-60 (E.D.N.Y. 1990). 48 Supra at Supra at 30. 46

Memorandum for Memorandum for the Plaintiff

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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 Memorandum for the Plaintiff

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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 pa y 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 Memorandum for the Plaintiff

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