REPORTABLE

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

B. MALINI MALLYA … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1.Leave granted.

2.‘Yakshagana’ is a form of ballet dance. It has its own heritage.

Indisputably, Dr. 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

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.

Yakshagana Ballet 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:

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“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

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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.”

4.Plaintiff- Respondent, inter alia, prayed for passing a judgment and

decree against the defendants – appellants granting the following reliefs:

“1.A 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.

1,000-00

4

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.

15,000-00

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.……………………………..

6.……………………………….”

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.

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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. Karanth.

7.Appellants 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 dismissed.

8.Appellants are, thus, before us.

9.Dr. Rajiv Dhavan, learned Senior Counsel appearing on behalf of

appellants in his usual fairness conceded:

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

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the form of the said dance including the Prasangas fell within

the purview of ‘originality’ in respect whereof copyright could

be claimed.

It was, however, urged:

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 different things.

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.

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11.The Copyright Act, 1957 (for short, “the Act”) was enacted to amend

and consolidate the law relating to copyright.

Section 2 is the interpretation section.

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.

The term “communication to the public” as defined in Section 2(ff)

reads as under:

“(ff)“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

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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.

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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;

(b)cinematograph 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 under:

“22. Term of copyright in published literary,

dramatic, musical and artistic works.- Except as

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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

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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 last.

Explanation.—For the purposes of this

section, the identity of an author shall be deemed

to have been disclosed, if either the identity of the

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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 recording.

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.”

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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:

“i.Does 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

the defendants?”

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 dated 18.6.1994.

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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:

“…..No doubt, 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 residuary bequest.

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-

à-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 observed:

“Dramatic works 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

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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 held:

“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 books.”

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) 15

th

Edition, provides the following information about

“Dramatic Literature.

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“Dramatic 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 right.

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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:

“Defendants or 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, however, directed:

“(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.

Karanth, the 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 plaintiff.”

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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

copyrighted work.

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

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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

above.

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.”

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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.

21

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.

.……………….…..………….J.

[S.B. Sinha]

22

..………………..……………J.

[Lokeshwar Singh Panta]

……………….…..………….J.

[B. Sudershan Reddy]

New Delhi;

January 23, 2009

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