CASE COMMENT ON:EASTERN BOOK COMPANY AND OTHERS V. D.B.MODAK AND ANOTHER

 

CASE COMMENT ON:

 

                               EASTERN BOOK COMPANY AND OTHERS………………. APPELLANTS

V.

                                 D.B.MODAK AND ANOTHER…………………………………RESPONDENTS

Case Details 

1.      Appellant: Eastern Book Company and Others.

2.      Respondents: D.B.Modak and Another.

3.      Citation: (2008), 1 SCC, 1

4.      Case Identity: Civil Appeals No. 6472 of 2004 with No. 6905 of 2004 and contempt Petition (C) No. 158 of 2006 in CA No. 6472 of 2004

5.      Decided on: December 12, 2007

6.      Counsels for the appellant: Mr. Raju Ramachandran, Senior Advocate.

7.      Counsels for the respondents: Mr. P.N.Lekhi and Ms Pratibha M. Singh

8.      Bench: P.P.Naolekar, J.

9.      Cases referred:

·         Gopal Das v. Jagannath Prasad, AIR 1938 All 266

·         V. Govindan v. E.M. Gopalakrishna Kone, AIR 1955 Mad 391

·         CCH Canadian Ltd. V. Law Society of Upper Canada, 19 (2004) 1 SCR 339 (Canada)

INTRODUCTION 

Copyright Act is an Act, which protects the right of a person when others use his work without his consent. This law protects the work of any person, which he produces by using his skill, capital and labour. Under this Act, minimal amount of creativity is required, which makes it different from other works. This Act exists on the principle that when a person produces something using his skill and labour that thing belongs to him and any other person would not be permitted to make profit out of it without the permission of the original author.  The object of the Act is to protect the author of the copyright work from an unlawful reproduction or exploitation of his work by others.

Eastern Book Company And Others v. D.B. Modak And Another[1] is a landmark case concerning copyright in because it studies different aspects related to infringement and importance of copyright.

FACTS:

·         The appellants in the present case are involved in printing and publishing of law report known as “Supreme Court Cases” in which they publish all reported and unreported judgments of Supreme Court of India.

·         The appellants make various changes in the original judgments and make it user friendly by adding many important things that make it clearer.

·         Respondent 1, Spectrum Business Support Ltd. has brought out a software called “Grand Jurix” published on CD-ROMs and Respondent 2, Regent Data Tech Pvt. Ltd. Has brought out software package called “The Laws” published on CD-ROMs.

·         As per Appellants the all the modules in the respondents software packages have been lifted verbatim from the appellants work. The respondents have copied the appellants’ sequencing, selection and arrangements of cases coupled with the entire text of copied edited judgment as published in the appellants’ law report along with the style and formatting, the copy editing, paragraph numbers, footnote numbers, cross-referencing, etc.

ISSUES:

1.      What shall be the standard of originality in the copy- edited judgments of the Supreme Court which is a derivative work and what would be required in a derivative work to treat it as original work of an author and thereby giving a protected right under the Copyright Act, 1957 to the author of the derivative work?

2.      Whether the entire version of the copy edited text of the judgments published in the appellants’ law report SCC would be entitled for a copyright as an original literary work, the copy edited judgments having been claimed as a result of inextricable and inseparable admixture of the copy edited inputs and the raw text, taken together, as a result of insertion of all SCC copy- editing inputs into the raw text, or whether the appellants would be entitled to the copyright in some of the inputs which have been put in the raw text? 

LAWS INVOLVED

In the present case, main focus is on the following Sections of the Copyright Act, 1957:

·         Section 2- In this Act, unless the context otherwise requires, –

(k) ‘Government work’ means a work which is made or published by or under the direction or control of-

(i) the government or any department of the Government;

(ii)any legislature in India;

(iii) any court, tribunal or other judicial authority in India;

(o) ‘literary work’ includes computer programs, tables and compilations including computer database;

(y) ‘work’ means any of the following works, namely-

(i) a literary, dramatic, musical or artistic work;

(ii) a cinematograph film;

(iii) a sound recording;

·         Section 13– Works’ in which copyright subsists- 

(1) Subject to the provisions of this Section and the other provisions of this Act, copyright shall subsist 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 recordings.

(2)Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of Section 40 or Section 41 apply, unless,-

(i) in the case of a published work, the work is first published India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India;

(ii) in the case of an unpublished work other than a work of architecture, the author is at the date of making of the work a citizen of India or domiciled in India; and

(iii) in the case of a work of architecture, the work is located in India.

Explanation-in the case of a work of joint authorship, the conditions conferring copyright specified inthis sub-section shall be satisfied by all the authors of the work.

 

(3) Copyright shall not subsist-

(a) in any cinematograph film a substantial part of the film is an infringement of the copyright in any other work;

(b) in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed.

  Section 14. Meaning of copyright.-For the purposes of this Act, “copyright” means the exclusive right

subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect

of a work or any substantial part thereof, namely:-

(a) in the case of a literary, dramatic or musical work, not being a computer programme, –

(i) to reproduce the work in any material form including the storing of it in any medium by electronic

means;

(ii) to issue copies of the work to the public not being copies already in circulation;

(iii) to perform the work in public, or communicate it to the public;

(iv) to make any cinematograph film or sound recording in respect of the work;

(v) to make any translation of the work;

(vi) to make any adaptation of the work;

(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation

to the work in sub-clauses (i) to (vi);

·         Section 17. First owner of copyright.-Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein Provided that-

(d) 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;

 

·         Section 52. Certain acts not to be infringement of copyright. -(1) The following acts shall not constitute an infringement of copyright, namely:

 

(q) the reproduction or publication of-

 

(iv) any judgement or order of a court, tribunal or other judicial authority, unless the reproduction    or publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority, as the case may be;

JUDGMENT 

The judgment in the present case is not just one sided. The apex court after giving some detail about the arguments of the appellants and the respondents gave its judgment in a very confined but clear way.

The Apex court analyzed each part of the copy-edited judgment of the Appellants and stated that if the inputs put in by the appellants would have a copyright then it would mean that anyone who by his or her own skill and labour creates an original work of whatever character, shall enjoy an exclusive right to copy that work and no one else would be permitted to reap the crop what the copyright owner has sown. 

Further, it was stated by the Apex court that no doubt, the appellants have collected the material, improved the readability of the judgment by putting inputs in the original text of the judgment by considerable labour, and arranged it in their own style, but that does not give the flavour of minimum requirement of creativity.

The apex court stated that the ‘SCC Report’ does not as a whole display sufficient originality to amount to an original work of the author. To support copyright there must be some substantive variation and not merely a trivial variation, not the variation of the type where limited ways/unique of expression are available and an author selects one of them which can be said to be garden variety. Further, the Apex court stated that novelty, invention, or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity. 

With the above explanation, the Apex court stated that the inputs put in by the appellants in the copy-edited judgments do not match standard of creativity required for the copyright.

However further the court stated that setting up of paragraphs by the appellants of their own in the judgment entitled the exercise of brain work, reading and understanding of subject of disputes, different issues involved, statutory provisions applicable and interpretation of the same and then dividing them in different paragraphs so that chain of thoughts and process of statement of facts and the application of law relevant to the topic discussed is not disturbed, would require full understanding of the entire subject of the judgment. Thus, this exercise and creation thereof has a flavour of minimum amount of creativity.

Finally, with all the above stated explanation laid down by the Apex Court finally the appeals were partly allowed. Finally, the Apex court held that the respondents should not copy the head notes of the appellants and also the footnotes and editorial notes appearing in the journal. It was further directed by the Apex Court that the respondents should not use the paragraph made by the appellants in their copy edited version for internal references and their editor’s judgment regarding the opinions expressed by the judges by using phrases like “concurring”, “partly dissenting”, etc. on the basis of reported judgments in SCC.

ANALYSIS

  A good judgment is one which delivers justice and increases public confidence in the judiciary. Positive and negative sides are two ways to analyze any judgment. If any person visualizes the positive aspects of it then it is that he is supporting the judgment and if he is visualizing the negative aspects then it is clear that that person is not satisfied with the courts’ decision. A good judgment is one, which analyzes every aspect related to the case and finally judgment is laid down in simple and brief manner which even a layman can understand. Basic structure of a judgment should be such that a reader while reading it without difficulty understands the Facts delineated in the judgment. Further, a reader must be able to know effortlessly, the reasons given in it in reaching a just and indeed one might say, often-inevitable conclusion. “Simple, brief and clear is best.” Judgment must contain everything that needs to be said as to why a decision was reached and nothing more. The practice of writing lengthy judgment is not appreciated.[2]

The present case, which deals with the subject “Copyright in Copy-edited judgments of Supreme Court”, satisfies all the above-mentioned requirements and so it can be said that it is a very good judgment. By reading the text of the judgment, any person can infer that the court acted in a responsible manner and reached the final decision stepwise. 

Further, it is submitted that what happens in another cases that the judgment is made in favour of any one of the party to the case but in the preset case court gave its judgment in two parts where first half supported the defendants but later half supported the appellants. Thus, it can be inferred that each element of the case is analyzed properly because without that this type of judgment cannot be laid down.

The judgment laid down critically analyzed the importance of creativity under the Copyright Act and it studied the principle of “sweat of the brow”. It can be inferred from the judgment that copyright is a very essential right to stop others from exploiting the work without the consent or assent of the owner of the copyright.

From the judgment it can be inferred that copyright is given due importance in India and through this case the area of copyright related to government documents is made clear. In the present case the difference between the derivative and original work is clearly settled and it can be clearly inferred that to claim copyright on any work the author must produce the material with exercise of his skill and judgment with a flavour of creativity which may not be creative in the sense that it is novel or non-obvious, but at the same time is not a product of merely labour and capital. 

The judgment is clear because it clearly explains the nature of derivative work on which copyright is granted. It explains that the 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 is produced by the author. It is also explained clearly in the judgment that substantive variation is necessary for any type of derivative work and only trivial variation is not sufficient.

Thus from the above it can be concluded that the judgment of the present case fulfills all the requirements of a good judgment. Every aspect of the case was clearly studied and then the judgment was laid down. Thus, the author here supports the judgment.

 CONCLUSION

Copyright protection finds its jurisdiction in fair play. When a person produces something with his skill and labour, it normally belong to him and the other person would not be permitted to make a profit out of the skill and labour of the original author and it is for this reason that the Copyright Act, 1957 gives to the authors certain exclusive rights in relation to the certain works of the author. Basically this Act puts a check on exploitation of the original owner for against the use of his work without his consent.

The above case studies the copyright protection in the copy-edited judgments of the Supreme Court and clearly states that no person can claim copyright on the raw text which is directly taken from the registrar office.

Submitted by:
 

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