Before the High Court of Delhi 1996 (38) DRJ 81 Appellant Rupendra Kashyap Respondent Jiwan Publishing House Date of Judgement 01.07.1996 Bench Hon’ble Justice R.C. Lahoti
The present case is an application filed by the applicant to seek an interim injunction as he claims his copyright has been infringed by the respondents. The case revolves around the Copyright Act of 1954, to determine whether the question papers for the purpose of examination can be claimed and considered as a subject matter of copyright. The present case also helps in determining the real owner of the copyright and if his copyright has been infringed, is he having the cause of action regarding the same. The present case also gives wide interpretation to the term ‘public undertaking’ as it is nowhere defined in the Copyright Act,1954.
The appellant Rupendra Kashyap is the owner of M/S Som Sudha Prakashan and deals in the publication of books. He claims that he is an exclusive licensee of Central Board of Secondary Education in respect of the publication of past year question papers for classes X and XII conducted from 1990 onwards and therefore within the meaning of Section 54 of the Copyright Act of 1954, is the original and first owner of the copyright and no one other than the plaintiff could publish or reprint the past year question papers of the respective classes of the exams conducted by CBSE. However, it is claimed that by publishing and reproducing the question papers, respondents (Jiwan Publishing House) have infringed petitioners’ copyright and hence have committed a breach of the rights of the plaintiff. The CBSE has completely supported the petitioners on the same.
Statute and Provisions discussed:
- Section 54 of the Copyright Act,1954.
- Section 54(b) of the Copyright Act, 1954.
- Section 17(dd) of the Copyright Act, 1954.
- Whether a question set by the CBSE for the purpose of conducting exams can be a subject matter for Copyright?
- Whether the respondents have infringed petitioners’ copyright?
- Whether the petitioner has any cause of action for bringing the suit?
Arguments on behalf of the Petitioner:
It was humbly submitted by the petitioner that he was an exclusive licensee of the CBSE in respect of past year question papers as prescribed by CBSE. The learned counsel submitted that identification of the paper setters cannot be disclosed, each and every question paper is the joint outcome of the paper setters than a single moderator, every person who remains anonymous, the ownership of the Copyright would certainly vest with the board who publishes the question paper first by the reading of Section 54(b) of the Copyright Act, 1954. The counsel for the petitioner relied on the Division Bench’s decision in Brooke Bond India Ltd Calcutta v. Balaji Tea[i].
Hence it was contended before the bench that the defendants have infringed appellants copyright. Some documents procured from the CBSE has also been filed of which instructions and guidelines to be followed before making the papers was the first and that the papers set for the purpose of the examination are the exclusive property of the board and copyright must vest in the Board itself. It was further contended that the terms and conditions mentioned in the documents procured clearly show that the said task must be performed under the direction and control of CBSE.
Arguments on behalf of Respondent:
It was submitted before the bench that the suit was essentially not even maintainable and there was no assignment of examination papers from authors in favor of CBSE. The defendants were of the view that a form signed by the author accompanied by the letter offering him to set the paper does not amount to the assignment of Copyright. There is no independent author of the examination papers but the papers are prepared by several people and moderated by the other hence it is very clear that there is no sole author of the examination papers.
It is obligatory in law on the part of plaintiffs to trace the title of the authors and co-authors who have contributed to the question papers. It has been further submitted that by further assuming that CBSE is a public undertaking, under Section 17(dd)of the Act of 1954, it cannot be said that the question papers were prepared under ‘direction or control’ of such public undertaking. The respondents hold that the contract between the setters of examination papers and CBSE may be ‘contract for service’ but not ‘contract of service’, it can be concluded from this very easily that the task of paper setting cannot be said to be performed under any direction or control.
It was held by the court that the plaintiff was the owner of the Copyright and is entitled to maintain the action for infringement being the “exclusive licensee”. It was very clearly said by the court that the defendants have infringed plaintiffs’ copyright. As it was said by the defendants that they had the right to infringe the copyright because the publishing of question papers was under public interest to which the court replied that merely because it is said that the copyright is in public interest no one s in authority to infringe the copyright.
It was perceived by the bench that the plaintiff’s prima facie made out a strong case in their favor, the irreparable injury could have been caused to the plaintiffs by the infringement of copyright. The damage done to the plaintiffs by the defendants is incapable of being projected in terms of money.
The plaintiff was granted for the injunction as prayed for and the interim injunction was allowed by the bench and the defendants were restrained from causing any infringement to plaintiffs copyright in terms of past years examination papers conducted by CBSE, defendants were also restrained from selling, offering to sell, printing, publishing the copies of the said question paper.
Copyright need not vest in a single person and can rightly be vested in a board. Because the plaintiff was the exclusive producer of the past year question paper and this right of his was granted to him by the Central Board for Secondary Education, hence the defendant’s act of reproducing the past year papers resulted in infringement of this right vested in the plaintiff by the board. Plaintiff is the exclusive producers of the past year question paper, is right in bringing the suit against the defendant.
“The views of the authors are personal“
[i]Brooke Bond India Ltd Calcutta v. Balaji Tea, (1993) 2 MLJ 132.