[Commons-Law] Publishing confusions - ADVISE please

[Lawrence Liang]

Hi Ritika

Just to add to some of what Shamnad has already said about the importance of
inserting comments etc or showing the usage to be  a part of a larger
process of research, criticism or review. Sec. 52 (1)(a) of the copyright
Act allows for fair dealing, and I am reproducing  it below. There is not
much case law on the point in India, but one useful case would be Civic
Chandran v. Amiini Amma, I am including a case note of the same as well as
the case below. Your use of it won web blog may take it outside of the scope
of private use, including research, so you will have to ensure that it comes
under 'criticism or review', and that's where the insertion of comments etc
will help.

Lawrence
    
===================
Sec. 52 (1)

 (a) a fair dealing with a literary, dramatic, musical or artistic work
3[not being a computer programme] for the purposes of-

4[(i) private use, including research;]

 (ii) criticism or review, whether of that work or of any other work;



Case Note:

 ŒNingal Enne Communistakki¹ is a well known drama written in 1952 by the
late Thoppil Bhasi a famous Malayalam Playwright. All the rights in
publishing and staging of the drama were reserved by Thoppil Bhasi and after
his death, stand vested with the respondents. Civic Chandran, the defendant,
has written another counter drama 'Ningal, Are Communistakki', and had
published the same and intends to stage the drama widely. The defendant had
filed a suit for copyright infringement and secured an interim injuction
against the appellants. This appeal was filed against that order.

 

This court addressed two grounds for appeal: first, whether there was
copyright infringement? The court found that there was similarity between
the ideas and themes in the two plays but there was no slavish copying.
Moreover, the appellants claimed that the counter-drama was protected under
s 52(1) (b) which related to fair dealing for the purposes of criticism. The
court found that there was ample evidence that the counter drama was written
to contest the ideologies of the drama and did not reproduce portions of it
to develop a competing script.

  

Secondly, the court considered the grounds for an interim order and relied
on the ratio of the American Cyanamid case. Balancing the interests and
claims of the two parties the court found that the balance tilted in favour
of the plaintiff given the expenses they had incurred and dismissed the
application for an interim injunction.

 

Citation: 1996 PTR 142 (Kerala High Court)





Full Text of the decision









Civic Chandran







v.







Ammini Amma







Hon'ble Mr. T. V. Ramakrishnan, J.











NLS 1996 CR/Kerl.







C. M. A. No. 329 of 1995, Decided on 27.2.1996







JUDGMENT





T. V. RAMAKRISHNAN, J.







The staging of drama 'Ningal Are Communistakki' (hereinafter referred to as
'the counter drama')

written by the appellant No. 1 Mr. Civic Chandran has been restrained by an
interlocutory order of injunction issued by the learned Additional District
Judge-1, Mavelikara in O. S. 1/1995 pending before him. The ground on which
the order has been issued is that the staging of the said drama would prima
facie constitute infringement of the copy right of the famous drama 'Ningal
Enna Communistakki' (hereinafter referred to as 'drama') written by late Mr.
Thoppil Bhasi, one of the well known playwrights whose legal representatives
are the plaintiffs in the suit and the respondents in the appeal. Aggrieved
by the order, defendants 1, 4 and 5 have filed this appeal. The question to
be considered is whether the order under challenge is legally sustainable in
the facts and circumstances of the case and in the light of the legal
principles required to be followed while granting interlocutory order of
injunction in cases like the one on hand.







2. Briefly stated, tire relevant facts are thus:'Ningal Enne Communistakki'
is a well known drama

written in 1952 by the late Thoppil Bhasi one of the famous Malayalam
Playwright who has received some prestigious awards for his literary skill
as a playwright . According to plaintiffs, the said drama dealt with some of
the burning social and political problems of those days specially espoused
by the Communist Party of India before its split. The drama had considerably
aided the undivided Communist Party of India to come to power in Kerala in
1957 Assembly Elections. The realistic theme and songs of the said drama
attracted and influenced large audience enormously. Some of the characters
of the dramas like 'Mala' and 'Karumpan' had become immortal. The drama had
already been played in more than 10,000 stages and was widely appreciated
throughout the State and outside and is still capable of attracting large
audience. It was being staged by the 6th defendant K.P.A.C. (Kerala People's
Art Club), a famous Arts Club on the basis of the permission originally
given by Thoppil Bhasi and subsequently by the respondents. All the rights
in publishing and staging of the drama were reserved by Thoppil Bhasi and
after his death, stand vested with the plaintiffs. According to plaintiffs,
the 1st defendant has 'fabricated' another drama 'Ningal, Are
Communistakki', styling it as a counter drama to Thoppil Bhasi and had
published the same in 1995 in the annual issue of 'India Today (Malayalam)
which is owned by the 2nd dependent, a private company whose executive
Director, Printer and Publisher is the 3rd defendant. The 1st defendant had
copied substantial portions of the drama with some comments here and there
in his counter dramas. The characters and dialogues in the drama are also
reproduced as such in the counter drama. Such copying and reproduction are
made without any bonafides and with intention of taking undue advantage pit
that creative talent and labour of Thoppil Bhasi which is illegal and
violative of the provisions of the Copy Right Act. Further it was alleged
that through the so called counter drama, an attempt has been made by the
1st defendant to denegrade and defame Mr. Thoppil Bhasi. Defendants 4 and 5,
the President and Secretary of a drama troop by name 'Rangabhasha' are
making large scale preparations to stage the counter drama at various
centres. In the circumstances, the plaintiffs have prayed for a perpetual
injunction against defendants 1 to 3 restraining them from publishing the
counter drama any more and a perpetual injunction against defendant 1, 4 and
5 restraining them from staging the counter drama. Plaintiffs have also
prayed for damages from defendants I to 3 for publishing the counter drama
in the literary annual edition of 'India Today' which is owned by the 2nd
defendant, a Private Limited Company whose Executive Director, Printer and
Publisher is the 3rd defendant.







3. Appellant No. 1 as 1st defendant in the suit (1st counter petitioner in
I.A.394/95) has filed a

detailed counter affidavit opposing the reliefs prayed for in the
application. While admitting the fact of writing and publishing the counter
drama it was pointed out that though the counter drama was published in the
annual issue of 'India Today' in January, 1995. the plaintiffs have filed
the suit only in the month of August, 1995 just prior to the date fixed for
the maiden staging of the counter drama. There was no complaint about any
violation of the copy right till the filing of the suit. As such, it was
contended that there is no bona fides in the claim made in the suit and the
application. It was also claimed that the counter drama is a new literary
innovation 'where a play is counter-posed by using the very same these and
characters'. Late Thoppil Bhasi himself has adopted this method of writing
dramas in his later play 'Innu Innale Nale'. That play is a criticism
against Bhasi himself and he refused to confront his own characters in
'Ningal Enne Communistakki'. The counter drama has been written mainly for
the purpose of criticism or critical analysis of the original drama and its
characters for bringing out before the public how it failed to achieve the
ultimate purpose intended to the achieved by Bhasi by writing it. Copying of
certain portions of the drama in the counter drama can only be treated as
'fair dealing' since the purpose of reproduction was criticism of the drama.
As such it will amount to fair dealing and will not amount to infringement
of copy right. The counter drama is an original creative work of the 1st
defendant on which he has expended considerable time, energy, labour and
literary skill. The passages copied from the drama was extracted only for
the purpose of reciting or reading the same from the stage as a dramatic
device and such uses cannot also be treated as an infringement of the copy
right. It was also pointed out that appellants have already spent
considerable amount of time, effort and money in training the actors by
conducting the rehearsal camps and making costumes and stage settings. As a
result of the public debate and advertisement carried out by appellants
throughout the State, the public was eager to view the drama. If the counter
drama is staged, it will have a great impact on the developments in the
State just as the drama was having when it was staged originally. If the
staging of the counter drama is delayed, the time, effort and money spent
already would go waste since the theme of the counter drama is closely
related to contemporary political situation, the relevance of it itself will
be lost considerably, if not fully. If the injunction is to continue, it
will cause irreparable injury to the appellants - counter petitioners. On
the other hand, even if the counter drama is permitted to be staged, no
serious or irreparable injury or prejudice will be caused to the plaintiffs.
Even if loss or injury is caused to the plaintiffs as a result of the
staging of the play, the same can be compensated by awarding damages if the
court ultimately finds that there is any infringement of the copy right
claimed by the plaintiffs in respect of the drama. The claim was resisted on
the above basis.







4. After referring to the relevant provisions of the Copy Right Act
(hereinafter referred to as 'the Act')

namely Sections 14, 51 and 52 and certain judicial decisions on the point,
the learned Judge considered the question whether the 1st defendant had
copied or reproduced substantial portion of the drama in their counter drama
and whether such copying can be treated as 'fair dealing'. On the 1st
question, the learned Judge found that the 1st defendant had extracted
substantial portion of the drama. After finding so, on the question of
defence plea of 'fair dealing', the only discussion paragraph 13 of the
order is to this effect:











'Mr. Civic Chandran, the 1st defendant ? counter petitioner may have some
particular ideas,



political or social. He has every right to express and propagate those
ideas. Writing, publishing or playing of drams is an effective media for
expressing or propagating such ideas. In doing so, he may criticise the
views expressed by others. But he must seek to write, publish or play drama
in such a way as not to infringe the copyright of the work of others. If he
wanted to criticise the ideas expressed by Thoppil Bhasi in his drama, Mr.
Civic Chandran could have used his own characters, dialogues and manner of
presentation in the counter drama. Even if he had extracted portions of the
drama for the purpose of such criticism it would not have infringed the copy
right provided that he could show that is only 'fair dealing'. Copying down
or extracting substantial portions of the drama, and using the same
characters and dialogues of the drama with some comments here and there
through two or three characters in the counter-drama cannot be treated as
'fair dealing' for the purpose of criticism. But that is what exactly is
done by Mr. Civic Chandran. In such a case, he cannot claim protection under
Section 52 of the Copy Right Act.'







5. Both sides have reiterated before me their respective contentions raised
before the court below

while arguing the appeal. Further, Shri A. X. Varghese, the learned counsel
for the appellants has submitted that while granting temporary injunction,
the learned Judge has not even adverted to the important aspects of
irreparable injury and the balance of convenience and as such the order is
unsustainable in law. It was also pointed out that there is a fair chance of
the defence, plea of 'fair dealing' being accepted and as such no injunction
should have been ordered taking note of the irreparable loss and injury
likely to be caused to the appellants by the grant of temporary injunction.
On the other hand, the learned counsel for the respondents Shri Achutha
Kurup had submitted that being an appeal against an interim order passed in
a pending suit unless it is found, that the order is totally illegal or
perverse, this court while exercising the appellate jurisdiction will not
normally disturb the discretion exercised by the lower court while passing
the impugned order reitraining the staging of the counter drama. The balance
of convenience is in keeping the status quo which has continued from
22.8.1995 till the disposal of the suit by the trial court. As such, there
may be a direction to the trial court to dispose of the suit as early as
possible keeping alive the order of injunction till the date of disposal of
the suit was the submission of the learned counsel for the respondent.







6. As already indicated is a case where the plaintiffs have alleged
infringement of their copyright in

the drama by copying or adopting substantial portions of the drama as part
of the counter drama. The submission was that it amounted to literary piracy
or plagiarism. The fact that portions of the drama have been copied or
extracted in the counter drama is not in serious dispute. There is also no
case that such copying was done with the consent of the owners of the
copyright. But, it is relevant to note that the drama has not been
reproduced or copied in its entirely or even substantially in the counter
drama. There is also no specific case that the purpose of copying is to
imitate or to produce a drama similar to that of the drama with
inconsequential changes here and there to mask the copying, for the purpose
of conveying the same idea for rival purpose. As against the alleged
infringement of the copyright, the main defence put forward is one of 'fair
dealing' as contemplated under Section 52(1) (a)(ii) of the Copy Right Act.
The specific case put forward in substantiation of the defence set up is
that copying or extracting of portions of the drama has been done only as
part of the literary technique or method of writing a counter drama. It has
been done specifically for the purpose of criticism of the drama, the ideals
and the events dealt with therein. The scheme of the criticism to reproduce
such parts of the drama which is to be criticized for the effectiveness of
the criticism and not for the purpose of re-enacting the drama for a rival
purpose or to cause prejudice monetary or otherwise to the author for the
persons in whom the copyright is vested. Such copying or adoption will not
amount to unfair appropriation of the drama was the submission on behalf of
the 1st defendant. It was contented that the same is the case in regard to
the alleged adoption of portions of the dialogues and the names of some of
the characters in the drama as part of the counter drama. It was submitted
that in the light of the claim made and the defence set up, the plaintiffs
can be found to have established a prima facie case of infringement of the
copy right only in case it is found that the defendants have failed to
substantiate prima facie their statutory defence of 'fair dealing'. This is
brief is the scope and the effect of the pleadings and the arguments of the
parties.







7. From what is discussed above, it is clearly a case where while the
plaintiffs have got a copyright

in the drama and they have put forward a claim based on its alleged
infringement by the 1st defendant by copying substantial portions of the
drama, the defendants have put up a statutory defence of 'fair dealing' in
answer to the plaint claim. In the circumstances, it becomes necessary to
consider what are the guiding principles to be followed and the, approach to
be made in the matter of granting or refusing the interim injunction prayed
for in this case.







8. The law regarding copyright and its infringement in India is at present
contained in the provisions

of the Act and the decisions rendered prior to and subsequent to the Act by
the Indian Courts and the Foreign Courts to the extent they do not go
against the statutory provisions. While Section 51 of the Act deals with
actions which may amount to infringement of the copyright. Section 52 deals
with the acts which may not constitute an infringement of copyright. Section
52(1) (a) of the Act reads thus:











'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) Criticsm or review whether of that work or of any other work.'







The term 'fair dealing' has not been defined as such in the Act, But Section
52(1) (a) and (b)







specifically refers to 'fair dealing ' of the work and not to reproduction
of the work. Accordingly, it may be reasonable to hold that the
re-production of the whole work or a substantial portion of it as such will
not normally be permitted and only extracts or quotations from the work will
alone be permitted even as 'fair dealing'. In the circumstances, the quantum
of extracts or quotations permissible will depend upon the circumstances of
each case. It may not be proper to lay down any hard and fast rules to
coverall cases where infringement of copy right is alleged on the basis of
extracts or quotations from the copyrighted work. In a case like the one on
hand, court will have to take into inconsideration (1) the quantum and value
of the matter taken in relation to the comments or criticism; (2) the
purpose for which it is taken; and (3) the likelihood of competition between
the two works.







9. According to Copinger, the learned author, ' It is only when the court
has determined that a

substantial part has been taken that any question of fair dealing arises.
Though, once this question arises, the degree of substantiality, that is to
say, the quantity and value of the matter taken, is an important factor in
considering whether or not there has been a 'fair dealing'. Further, it is
thought that, even under the present law, in considering whether a dealing
with a particular work was fair, it would have to be considered whether any
competition was likely to exist between the two works. But each case will
depend on its facts, and what may he fair in one case will not necessarily
be fair in other case.' (See Copinger and Skone James in Copyright, Eleventh
Edn., Paragraph 461. page 196).







10. As regards the principles governing grant or refusal of injunction in
Copy right cases, the

following passage from Halsbury's Laws of England, 4th Edn., Vo1.9,
Paragraph 944, is apposite and may be usefully quoted.











'An interlocutory injunction will not, however, be granted where the
defendant might suffer



irreparable injury from an injunction restraining him from publishing
pending the trial and the plaintiff can be properly protected by the
defendant being ordered to keep an account, nor will it normally be granted
where a bona fide defence of fair dealing has been pleaded coming to the
Court or his conduct has amounted to acquiescence in the infringement or if
there is any substantial doubt as to the plaintiff's right to succeed. It
has been held that in considering whether to grant an interlocutory
injunction the Judge must look at the whole case and that the remedy by
interlocutory injunction must be made the subject of strict rules.'







11. The balancing process indicated by Lord Diplock in American Cyanamid v.
Ethicon (1975)

RPC 513 at pages 539-542) is relevant:











'The object of interlocutory injunction is to protect the plaintiff against
injury by violation of



his right for which he could not be adequately compensated in damages
recoverable in the action if the uncertainty were resolved in his favour at
the trial; but the plaintiffs' need for such protection must weighed against
the corresponding need of the defendant to be protected against injury
resulting from his having been prevented from exercising his own legal
rights for which he could not be adequately compensated under the plaintiffs
favour at the trial. The court must weigh one need against another and
determine where the balance of convenience' lies.'







12. Alongwith the above special legal principle applicable to copy right
cases, the normal factors to

be established before granting or not granting interim injunction have also
to be kept in view, namely the establishment of a prima facie case, the
balance of convenience and the irreparable injury liable to be caused in
case injunction is refused. At the same time, it has also to be borne in
mind that it is no part of the court's function at the interlocutory stage
of the litigation to try to resolve finally any of the points to be decided
in the suit with reference to the evidence yet to be adduced in the suit
during trial.







13. Hubbard v. Vosper (1972 (2) W.L.R.389) rightly relied upon by the
learned District Judge was

a case where a claim based on infringement of copy right was put forward on
the allegation that copious questions were made by the defendant in his book
from the copy righted work. As in this case, the defence in that case was
also one of fair dealing'. Of the three judges of the Court of Appeal who
heard the case, Lord Denning M.L.J. has dealt with in detail the principle
to be borne in mind while issuing interim injunction with specific reference
to the defence of 'fair dealing'. It was also a case where the trial Judge
had initially granted exparte interim injunction which was later confirmed
by him after hearing the defendant. On appeal, the Court of Appeal had
vacated the order in injunction and permitted the defendant to proceed with
the publication of his work without any condition whatsoever. It was held in
the decision that 'fair dealing' is a question of fact and of impression to
which factors that are relevant include the extent of quotation and its
proportion to comment (which may be justifiable although the quotation of
the whole work). It is relevant to quote the following passage from Vosper's
Case (page 398, Denning L.J.):











'It is impossible to define what is 'fair dealing'. It must be a question of
degree. You must



consider first the number and extent of the quotations and extracts. Are
they altogether too many and too long to be fair? Then you must consider the
use made of them. If they are used as a basis for comment, criticism or
review, that may be fair dealing. If they are used to convey the same
information as the author, for a rival purpose, that may be unfair. Next you
must consider the proportions. To take long extracts and attach short
comments may be unfair. But, short extracts and long comments may be fair.
Other considerations may come. to mind also. But after all is said and done;
it must be a matter of impression. As with fair comment in the law of lible
so with fair dealing in the law of copyright. The tribunal of fact must
decide.'







In the same decision, it has been held that criticism or review may relate
not only to literary

style but also to be doctrine or philosophy of the author as expounded in
his book. A fair criticism of the ideas and events described in the books or
documents would constitute 'fair dealing'. It is also relevant to quote the
following observations of Lord Denning M.R. in Hubbard v. Vosper (1972(2)
W.L.R. 389):







In considering whether to grant an interlocutory injunction the right course
for a judge is to

look at the whole case. He must have recalled not only the strength of the
claim but also to the strength of the defence and then decide what is best
to be done. Sometimes it is best to grant an injunction so as to maintain
status quo until the trial. At other times it is best not to impose a
restraint upon the defendant to leave him free to go ahead. The reason is
because the defendant if he is right is entitled to publish it and the law
will not intervene to suppress freedom of speech except when it is abused.'







14. As regards the decisions of our Supreme Court and the High Courts
referred to by the counsel

on both sides, it has to be noted that none of them cases where a defence of
'fair dealing' was put forward directly as a defence. The Supreme Court in
R.G. Anand v. M/s Delux Films and Others (AIR 1978 S.C. 1613) which was a
case where literary piracy or plagiarism was put forward and denied has held
thus:











'One of the surest and the safest test to determine whether or not there has
been vilation of



copyright is to see if the reader, spectator or the viewer after having read
or seen both the work is clearly of the opinion and gets an unmistakable
impression that the subsequent work appears to be a copy of the original.'







It has also been clearly laid down in the above decision that '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.'







15. Keeping in mind the above principles of law and the facts and
circumstances of the cases, it is

necessary to consider whether the plaintiffs have succeeded in establishing
prima facie case of infringement of the copyright to get an order of interim
injunction as granted by the learned District Judge in this case.







16. For a proper consideration of the above question, it may be useful to
have at least a hoard idea

about the theme, events, characters and certain other important features of
the drama and the counter drama.







17. It was in 1952 that the drama was written by Thoppil Bhasi. At the time,
Bhasi was an active

worker of the Communist Party of India and in fact he wrote it while he was
living in political hiding. The main theme of story of the drama is the
touching story of the oppressed and depressed classes of the contemporary
society in Kerala consisting mainly of agricultural and all other kinds of
workers who have turned out to be revolutionaries attracted and guided by
the new political ideology of the undivided Communist Party of India. It was
the most popular drama of that period. The main purpose intended to be
achieved by writing the drama was to organise the oppressed classes or
common people of the lowest strata of the society to fight against social
evils and to have a social, political and cultural revolution in the
contemporary society so as to set up a new social order where the workers
will be the rulers. The clarion call of the party to its followers was to
unite, revolt and fight against poverty, oppression, exploitation and all
other kinds of social and political evils and to sacrifice everything for
the success of the clause for which they were fighting. The promise made by
the party to its followers and the pubic was that they can hope for a better
tomorrow and the establishment of a new system in which they will be the
rulers and can live a life worthy of living. The characters in the drama
fall mainly into two or three groups. The respondent (a) landlords and
others belonging to rich upper classes who lead a life full of pleasure
exploiting the poor uneducated and socially backward classes of society (b)
socially and educationally backward classes of the society who are mainly
agricultural and other kinds of workers toiling day in and day out and still
living in poverty and miseries of all kinds; and (c) dedicated workers and
leaders of the Communist Party. Viliya Veettil Kesavan Nair is the
representative of the landlord class bent upon exploiting and harassing the
working class in all respects for safeguarding their self interest.
Paramupilla, Vehissar and Kallyani Amma are characters representing upper
middle class people who cling on to their past glory even while struggling
for existence as a result of new land legislations and other social and
political changes. Mala, Karampan, Sumam, Gopalan, Mathew and Pappu are all
political workers and leaders of the party. Of them Mala and Karampan are
representatives of the most depressed class of people in the society. Suman,
Gopalan and Mathew hail from upper or upper middle classes. Mala, a pulaya
lady, considered as the most important character of the story has been
characterized as an ardent party worker who have sacrificed everything for
the success of the cause for which the party, herself and her people were
fighting. Though Gopalan and Mala were close to each other, for a long time
and were in love with each other, Gopalan ultimately falls in love with
Sumam, an upper class party worker who is also the daughter of Viliya
Veettil Kesavan Nair Kesavan Nair representing the exploiting classes of the
society becomes a desperate, may be at the end of the drama when he found
that even his own daughter has turned out to be an ardent Communist Party
worker and that she has fallen in love with Gopalan whom he hates top to
bottom. Though desperate, Kesavan Nair still declares that he had not been
defeated so far and he is not going to be defeated hereafter also. At the
end of the drama, Paramupilla, father of Gopalan who at the beginning of the
drama strongly resisted and protested against the activities of workers and
leaders of the party gets transform as a Communist slowly but steadily and
joins with Mala, Karampana and other party workers and leaders in
participating in Jadhas and raising the red flag. The drama ends when
Paramupilla in an inspired mood gets the red flag held by Mala from her and
declares that he wanted to hold it with both hands. The drama consists of 14
scenes.







18. It is in 1995 about 4 decades after the drama was written that the
counter drama was written

and published for the first time. It contains 9 scenes together with a short
introductory scene are characters of the drama. Mala with a red flag,
Karampan, Mathew, Pappu and Gopalan, appear together in the background of a
burial ground with a martyr's memorial building therein. They appear on a
lower part of the stage. Paramu Pilla and Kesavan Nair of the drama also
appear, simultaneously. Dialogue spoken to by the characters in the
introductory scene relate to flag, the war that was wages by Mala and others
who united under the Red flag, the failure of he war waged by them.
Paramupilla, a conservative upper middle class Nair Small land holder
harassed by the rich landlord Kesavan Nair and helped in many ways by party
workers saying that he will hereafter live as a Communist and will be in the
forefront of political agitations and processions. He expresses his desire
to hold the red flag aloft. Kesavan Nair declares that he is not going to
admit defeat and is determined to live changing himself in tune with the
changed political and social set up. The scene ends with Thoppil Bhasi's
appearance on the scene saying that he has come there to see the real
condition in which Mala is at present. The curtain falls with an
announcement to the following effect:'Ningal Communistakki' - Counter Drama
- In the theater a political Dialogue - Ningal Are Communistakki'. In the
first scene the actors are the watchman of the burial ground an old man who
is a character in another drama written by Bhasi and Bharathi the adopted
daughter of Mala. Bharathi and the old man have come to the burial ground
with the dead body of Mala to be buried there. The day happens to be the day
prior to the date fixed for the swearing in the new Chief Minister elect who
is none other than Gopalan, the leader with whom Mala and others have waged
their struggle against oppression and fundal domination feudal. Through the
dialogue between the characters of the counter drama what is sought to be
conveyed is that when untimately the party has won the elections and came to
power and Gopalan who had by then married Suman the daughter of Kesavan Nair
after forsaking Mala and her lover is going to be sworn-in as Chief- 
Minister. Mala who represented the toiling masses of the depressed and 
oppressed class of the society had to die with a broken heart in the same 
old pitiable condition with shattered aspirations and hopes of a better 
tomorrow promised by her party and leader leaving her only daughter 
(adopted) in a hopeless condition. The dialogue in the scene in its entirety 
is about the drama, its characters, their life, about its author and the K. 
P. A. C. who staged the drama. Bharathi addresses the deadbody of her mother 
Mala and says:Mother tell these audience who have already seen this drama on 
more than 5000 stages, as to what has happened? What has been hidden by 
Trhopil Bhasi, K. P. A. C. and the Communist Party? How Mala's red flag who 
snatched away and handed over to Paramupilla and Keshavan Nair by Gopalan 
and Mathew? How they held it aloft? How they have held it aloft? How they 
have snatched the leadership jumping over Mala and Karampan who were in the 
front row all agitations. How Mala and Karampan were again contemptuously 
driven away for apart 64 feet away? As indicated at the end of the 
introductory scene what is contained in scene one is a discussion and a 
critical assessment about the these and events of the drama in the changed 
set up. The second scene of the drama is a repetition of scene No. 8 of the 
drama. It has been stated so at the beginning of the scene itself. All the 
characters and the dialogues are the same as in scene No. 8 of the drama. 
The comments made by Bharathi at the end of the scene alone is the addition 
made by the author of the counter drama and that is to this effect:'This is 
how Gopalan made Sumavali Amma the heroine of his own life and the party 
kicking the heart of the Malaj.'







19. Scene 3 is specifically indicated as a :continuation of scene 2. 
Bharathi, old man and he

watchman are the only characters who appear in scene 3 also. Characters are 
involved in a keen discussion abut the conduct o f the party leaders like 
Gopalan and others in the drama at the time of discussion how Mala was 
forsaken and betrayed by Gopalan and about certain political developments of 
general importance which took place subsequent to the writing and staging of 
the drama concerning the leaders of the party and the cultural revolution 
which followed the staging of the drama. In scene 4 also, the characters are 
Bharathi, oldman, and the watchman. Bharathi and the oldman are engaged in 
an animated discussions about all that has happened to Bharathi, the adopted 
daughter of Mala, the heroine of the drama and the frontine workers of the 
party, Karampan, Mala's father and to their hopes for a better tomorrow. 
Certain political and social developments both cuneiform and past are the 
topics discussed by the characters. In the discussion, well-known political 
and social leaders like Sir C.P. Iyyankali and Com. Krishna Pillai are being 
referred to incidentally. It also refers to the fall of the Communist Party 
in Eastern Europe. A reference is even made to the famous story in 
Mahabharatha where Kauravas attempted to kill the Pandavas and their mother 
Kunthi trapping them in a building built of wax and setting fire to it. 
Though Pandavas getting information about the treacherous plan of the 
Kauravas escape from the wax building timely through an underground path, 
Bhima who sets fire to the wax building sees that a Nishadha woman and her 
five children who were given food by Kunthi get perished inside the building 
so as to make it appear to the Kauravas that Pandavas have really perished 
in the fire. The suggestion made by referring to the epic story is that the 
intelligent and clever upper class always escapes or succeeds whereas the 
depressed and oppressed class always fails or gets etheated and perished at 
the hands of the upper class. The entire dialogue between Barathi and the 
oldman is clearly a criticism of the various actions which the party had 
taken during the time when the drama was written and thereafter till date in 
Scene 5, the characters are Karampan, Sumam, Gopalan and the oldman. In 
fact, a portion of scene 7 of the drama has been made part of scene 5 of the 
counter drama. Copying has been specifically acknowledged at the very 
beginning of the scene itself. The only addition to the extracted portion of 
the drama is the comment made by the old man at the end of the scene. Scene 
6 is stated to be a continuation of scene 5. In scene 6 again, the old man, 
Bharathi and the watchman are engaged in an animated discussion and 
criticism of the different ways in which the followers of the depressed 
classes and the upper classes within the party have behaved during the time 
of the political and cultural revolution and thereafter. There is even a 
comparison between the work done by personalities like Iyyankali and 
Sreenarayana Guru and that done by party and its leaders for the oppressed 
and depressed classes with a view to show that how insincere was the party 
and its leaders towards the oppressed and depressed classes for whose 
upliftment and welfare the party was supposed to have been built up. The 
suggestion is that the party and its upper class leaders were cheating the 
depressed and oppressed Section of its followers and were betraying them for 
their own personal benefit. As such the oldman suggests that they should 
have poets, leaders, artists, singers and philosophers from their own class 
and not from the upper classes who cannot at all be believed. This in short 
is the critical assessment made by Bharathi and old man during their 
dialogue in scene 6. Scene 7 again incorporates a portion of scene 13 of the 
drama though a very small portion. As scene 3 and 6 were continuation of 
scenes 2 and 5, scene 8 is also stated to be a continuation of scene 7. In 
scene 8 again there is a heated discussion among Bharathi, old man and the 
watchman about certain events and developments which took place in the past 
and about matters to happen hereafter as well. It again is a critical 
analysis of the social and political changes taking place on Kerala and in 
the world. Mainly what is suggested in the discussion is that persons with 
vested interest always try to corner power and to continue in power whatever 
be the changes which may happen in the social and political set up. The old 
man declares that success is always that of 'Valiyaveetans'. They become 
Congress when Congress rules, they become Communist when Communist comes 
into power, they would become Nexalites when Naxalites come into power. Com. 
Gopalan, the Chief Minister elect and Valiya Veetil Kasavan Nair his 
father-in-law comes to pay their respects by placing wreaths in front of the 
Martyr's memorial building Kesavan Nair was accompanying Gopalan to be 
honoured by conferring the title of Padmasree by Gopalan on that day itself. 
As soon as they enter the scene. Bharathi and the old man rush to the scene 
with the covered deadbody of Mala and then slowly removes the cloth from 
here face. Mala begins to speak slowly in a low voice to the effect that in 
the war we failed, failed. Then the old man just like a magician makes Mala 
stand up as if she was only sleeping till then. Thereafter in the stage a 
trial goes on in which Mala takes the role of a Judge. At the time when the 
trial was about to begin. Thoppil Bhasi enters saying of Mala that I have 
come again to see you and to see the real condition in which you are. At the 
end of the scene, the old man makes a declaration to the following effect:' 
But Mala, can we be satisfied with this old red flag even now? Should we not 
begin from where the soviets and Communes have failed? Should it not be 
necessary for us to read Gandhi and Lohya at least now? Is there not before 
us the path, Neyogi, Amte and Medha are now trading upon? Yes. We should 
have a new concept of freedom. A new relationship between society and 
nature. 'There is a further note to the effect that from here a dialogue 
begins.







20. From the above broad comparative analysis of the drama and the counter 
drama, it is evident

that copying or re?production of the portions of the drama was obviously not 
for the purpose of re?producing the drama either as a whole or in a 
substantial manner to convey the same idea which the author of the drama 
wanted to convey. The purpose was also not to imitate the drama or to 
produce a drama similar to the drama misappropriating the theme, the form of 
presentation, the characters, the dialogues and the technique adopted in 
writing the drama. Except in the scenes where expressly portion of scenes 
from the drama are adopted or incorporated as part of the counter drama all 
other scenes are scenes written without copying any of the features of the 
drama. The theme, the ideology intended to be propagated, the events 
discussed and the dialogue used and the technique adopted in writing the 
counter drama are entirely different from that of the drama except in the 
portions adopted from the drama. In fact, it is more or less evident that 
the purpose of writing counter drama is to criticise the idea propagated by 
the drama and to expose to the public that the drama has failed to achieve 
the real object intended to be achieved by writing the same. What is 
intended to be conveyed through the counter drama is that though the party 
has succeeded in coming to political power, it has for taken or forgotten 
the depressed classes who have fought mainly for its success and lost 
everything in that process including the lives of large number of them. As 
in the case of drama in the counter drama also, there is a message to be 
conveyed to its readers and viewers. The message is the one which the old 
man has declared in the last scene which has already been referred to 
earlier. The finding for a new path to establish a new social order removing 
the inequalities and evils now existing in the present system is the 
objection to be achieved. The dialogue spoken to be the characters of the 
counter drama are mainly criticism of the drama and the contemporary social 
and political developments taking place in Kerala and outside the Keralal. 
Often references are made to well?known social and political leaders and 
historical incidents which are consideres as milestones in the progress of 
society in Keralal. It may be extremely difficult to hold at least at this 
stage of the case that there are no new thoughts or new ideas in the counter 
drama and no labour and skill of his own was used by the 1st defendant in 
writing the counter drama and that it is a mere reproduction or imitation of 
the drama with inconsequential change effected here and there merely to 
escape from the charge of plagearism of literary piracy that apart even in 
respect of the 3 or 4 scenes where portions of the drama have been adopted 
as such, there is prima facie force in the submission that it was for the 
purpose of recapilating the important events in the drama that they were 
copied as such in the counter drama. Technique used is to reproduce or 
reenact part of drama from a raised portion of the stage and in succeeding 
scene staged in a lower part of the stage as a continuation of the scene 
make criticism of the important events directly dealt with in the drama in 
the light of the subsequent developments through the dialogue spoken to by 
the characters in the counter drama. Prima facie, I am inclined to take the 
view that the attempt was not to reproduce either a scene or parts of a 
scene in its entirely with a single comment made at the end of the quotation 
for conveying the same idea for a rival purpose, namely to reproduce the 
drama itself or part of it for monetary benefit causing loss to the owners 
of the copyright. The comment made at the end of the reproduction seems to 
be not one used only as a cover to mask the copying. It used to be discussed 
at length in the succeeding scene in the own language of the author of the 
counter drama without borrowing anything from the drama. In fact, such 
discussion used to be severe criticism of the theme and the ideology and 
philosophy of the author of the drama and the party and other connected 
matters. 'Whether such criticisms are fully justifiable or well-founded or 
bona fide is a matter to be decided after the entire evidence is adduced and 
duly considered in the case. The only point to be noted is that 
appropriation or part of drama as part of the counter drama was not for the 
same purpose for which the drama was written and was for the purpose of 
critism of the theme, events and the ideology of the book and its author. At 
any rate, it was not for the purpose of imitating or reproducing the drama 
like the copyrighted drama or to produce the same drama with some 
insignificant changes here and there. By no stretch of imagination one can 
come to such a conclusion in this case. There is every reason at lease prima 
facie to think as contended on behalf of the appellants that the portions of 
the drama were made part of the drama only to make the criticism of the 
drama and the events discussed in the drama more effective and dramatic. The 
counter drama is a criticism of the drama only in part. It is not a work in 
which the drama and its author alone are criticized. Substantial portion of 
the counter drama is intended also to criticize various political and social 
developments of current importance and to bring about a new political and 
social system curing those defects on account of which the movement let by 
the party and the characters in the drama failed according to the author of 
the counter drama or the characters in it. If, as a matter of fact, and as 
contended by the appellants, the drama, its ideas, events and its author are 
sought to be criticized in the counter drama along with various other 
contemporary developments in the political and social fields, there is 
strong reason to accept at least prima facie the contention that the 
quotations were made mainly for the purpose of effectively criticizing the 
drama. Without the attention of the readers and viewers being drawn to the 
relevant portion of the drama, the criticism to be made through the counter 
drama cannot be effective. Viewed in this manner, I find that there is 
sufficient reason to accept at least prima facie that there is strong 
defence case to be considered on merits put up by the defendants in 
opposition to the claim of the plaintiffs in the suit.







21. It was contended that even if the purpose of copying or reproduction was 
to criticize the

portions of the drama or the ideologies of its author or the party, still, 
it may not amount to 'fair dealing' unless the 'defendants show that the 
criticism is fair and justifiable in the facts and circumstances of the 
case. Even assuming that the defendants in this case are under an obligation 
to establish that the criticism is justified in the facts and circumstances 
of the case, the question whether the criticism leveled are all justifiable 
or not is a matter to be considered in the suit itself and cannot be dealt 
with at this interlocutory stage. Defendant may have to be given an 
opportunity to establish that the criticism leveled is fair and justifiable 
in the facts and circumstances of the case.







22. At one stage of the argument it was submitted that there was no 
criticism either of the drama

or its ideals, but the intention of writing the counter drams was only to 
level baseless allegations and accusations against the author of the drama 
and the party and its leaders. Even assuming that it is really so, it may 
not help the respondent to establish their case that there is infringement 
of the copyright and on that ground to get an injunction against the 
defendants.







23. If on the other hand, the main purpose of the author of the counter 
drama is to critically analyse

the activities of the party and the author who was an ardent Communist Party 
worker while the drama was written with reference to the events which took 
place subsequent to the staging of the drama and the success of the party in 
getting political power and to express his own views or conclusions about 
it, the injunction ordered will really interfere with the freedom of 
expressing those ideas in an accepted art form. As the matters dealt with 
are of current importance, the prevention by injunction of the printing and 
publication and staging would be illegal and unjust. The counter drama in 
that even will altogether lose its relevance and would become practically 
worthless or useless, even if the suit is ultimately dismissed.







24. It is relevant in this connection to note two or three other important 
aspects of the case also.

First of all there is no case even that there will be any competition 
between the drama and the counter drama even if the counter drama is printed 
and published or stage. By no stretch of imagination, it can even be 
suggested that those who wanted to read or see the drama will read the 
counter drama. As such, one of the relevant considerations laid down in 
Habbard v. Vosper (1972(2) W.L.R. 389) to be satisfied while granting 
injunction namely, that there is likely to be a competition between the two 
works is not satisfied in this case.







25. Secondly, it is to be noted that the counter drama was published as 
early as in January, 1995

and the suit was only instituted in July 1995 just a day prior to the date 
fixed for staging the drama. If the plaintiffs were aggrieved by the 
printing and publishing of the counter drama, there is no explanation why 
they have not taken any action immediately after the printing and 
publication of the counter drama. Though the above circumstances may not be 
fatal to the maintainability of the suit, it should have been taken note of 
while considering the question of granting an injunction as prayed for by 
the plaintiffs in this case.







26. Thirdly, while considering the question of reparable injury and balance 
of convenience, the

learned District Judge ought to have taken note of the specific contention 
put forward by the defence that the defendants especially defendants 2 and 3 
have made all arrangements for staging the counter drama spending a huge 
amount and that if the staging is stayed, it will result in irreparable loss 
and hardship to them and that if an injunction is not granted, no 
irreparable injury would be caused to the plaintiffs. Even if any monetary 
loss is likely to be caused to the plaintiffs on proving the same, the 
plaintiffs could be compensated by directing the defendants to pay such 
damages or compensation which the court deems fit.







>From the case set up in the plaint itself, it is evident that even now the 
drama is popular and is in

demand for staging profitably. The exploitation of the drama by staging the 
same or by printing and selling it, will not in any way be affected by the 
printing and sale or staging of the counter drama. So long as there is no 
case that the staging of the counter drama would affect the collection that 
is being expected from staging the drama, it may not be possible to contend 
that monetary loss is going to be caused to the plaintiffs as a result of 
staging the drama. There is also a case for the defendants that unless the 
counter drama is allowed to be printed, sold and stage it will loose all its 
relevance as the matters dealt with in it are of current importance.







27. I may also make a note of the contention raised by the plaintiffs in the 
plaint that there is an

attempt in the counter drama to denegrade or tarnish the fair name and 
repute of the author of the drama. Even assuming that there is such an 
attempt, it cannot be treated as an infringement of the copyright and no 
injunction can be obtained in this suit on that basis. However, in this 
connection. I may record the submission of the learned counsel for the 
appellant that in the future publications of the counter drama, they will 
drop the following sentences from the script of the drama:







It was also submitted that while staging the drama also, the above sentences 
will not be used as

part of the drama.







28. In the light of the discussion made above, I am constrained to take the 
view that the learned

Judge was not justified in an injunction in the facts and circumstances of 
this case. In my view, the defendants have prima facie succeeded in 
establishing that copying of portions of the drama even if it is held to be 
substantial portions, was for the purpose of criticism and as such it will 
only amount to a fair dealing' and not an infringement of the copyright. If 
the defendants have succeeded in establishing prima facie that they have the 
statutory defense of 'fair dealing' to put up against the plaint claim, it 
may not be possible to find that the plaintiffs have succeeded in a 
establishing a prima facie case of infringement of the copyright even if 
admittedly there is copying of portions of the drama in the counter drama. 
In the light of the above findings, I would set aside the order granting the 
injunction and would dismiss the application for injunction.







29. As the injunction application is being dismissed, it is absolutely 
necessary that the trial and

disposal of the suit should be expedited to the maximum extent possible. 
Both the parties have expressed their readiness to get ready in the matter 
at any time the court decides the case to be posted for trial. In the 
circumstances, there will be a direction to the court below to complete all 
pre-trial steps within a maximum period of three months and to post the case 
to a definite date after the expirty of the three months and to proceed with 
trial till the end, posting the case on a day top day basis to the extent 
possible.







30. In the light of the somewhat detailed discussion of the various aspects 
of the case contained in

this judgment. I would specifically made it clear that none of the 
observations and findings contained in the judgment about the merits of any 
of the contentions raised in the suit should prejudice the trial and 
disposal of the suit and the suit should be disposed unaffected by such 
observations and findings in this judgment.







Forward a copy of the judgment along with the records if any records have 
been called for.







C.M.A. is accordingly allowed.







Order passed by the court below is set aside I.A. No. 395/1995 will stand 
dismissed. The parties





will bear their respective costs.







Cross Reference: 1996 PTR 142 (Kerala High Court)



On 9/12/04 7:02 PM, "Shamnad Basheer" <shamnadbasheer at yahoo.co.in> wrote:

> Dear Ritika,
> 
> While I agree with Jayna, I would caution that if
> possible, you intersperse the quotes with some
> comments as well-just so that you better your chances
> of remaining in the 'fair dealing' category. A fair
> use analysis would, to a large extent, depend on both
> the quality and quantity (more so the quality..) of
> the quoted material, in comparison with the original
> work.
> 
> If for example, you had quoted about 90% of Rummans
> work, you could well run into problems-it may be
> difficult to qualify a taking of 90% of an authors
> work as 'fair dealing'-despite the fact that this
> taking is for the purpose of critique.. 
> 
> Then again, the law would also look at the nature of
> your use of her work. If you have only quoted from her
> work, without additions/comments of your own, you
> could run the risk of falling outside the 'fair
> dealing' category.
> 
> On a side note, the fact that the workshop proceedings
> do not have a copyright notice or a statement that you
> cannot quote is not prejudicial to their claim against
> you (should one exist in the first place). Copyright
> exists by virtue of creation of the work and a notice
> is immaterial to a claim against copying (though it
> may certainly push the case a little more in favour of
> the copyright owner). 
> 
> The above holds true for credits as well. Giving
> credit to a borrowed piece of work may not absolve you
> of copyright liability-if your borrowing exceeds the
> scope of the 'fair dealing' defence (though of course,
> it may help your case a little more..)
> 
> I hope this helps.
> 
> Shamnad
>     
> 
> 
> .  --- Ritika <ritika at sarai.net> wrote: 
>> Thanx jayani, i am forwarding your mail on the
>> commons law list for a 
>> wider discussion
>> 
>> cheers
>> ritika
>> 
>> jaynakothari at justice.com wrote:
>>> Dear Ritika,
>>> 
>>> I read your blog where you have quoted from
>> Rumman's
>>> work. As far the practice goes, you can still use
>>> Rumman's work even after it is published by Sage,
>> by
>>> citing the new published verison of the article
>> and
>>> thus giving acknowledgement to the author in your
>> blog.
>>>  Copyright law does not prevent use of any
>> author's
>>> work for research and critique (which would
>> classify as
>>> 'fair use') provided proper acknowledgement is
>> given to
>>> the author and the copyright owner (i.e. Sage
>>> Publishers).  You don't need the Publisher's
>> permission
>>> for just quoting it on your blog, provided you
>> have
>>> cited the piece correctly.
>>> 
>>> best,
>>> Jayna
>>> 
>>> 
>>> 
>>> On Sat, 11 Sep 2004 16:42:17 +0530, Ritika wrote:
>>> 
>>> 
>>>> Dear All,
>>>> 
>>>> Writing this mail for advise from list members.
>>>> 
>>>> I have been maintaining a blog on my ongoing
>> research
>>>> on Slaugther 
>>>> Houses in Delhi. This blog is an attempt to build
>>>> community of 
>>>> commentators around what i am excavating and
>> thinking.
>>>> 
>>>> <http://blog.sarai.net/users/ritika>
>>>> (Read posting titled: HYGEINE, LANGUAGE AND
>>>> APPRENTICESHIP)
>>>> 
>>>> On reading some discussion papers of a workshop on
>>>> Education, by Konrad 
>>>> Adenaur Foundation (6th - 9th, April 2003) i liked
>>> 
>>> what
>>> 
>>>> was presented by 
>>>>  Ms. Rumman Hameed, and quoted excerpts from her
>>>> workshop presentation 
>>>> text in my blog.
>>>> 
>>>> She has written to me that, that her article from
>> the
>>>> same presentation 
>>>> will be appearing in a publication by Sage. She
>> has
>>>> asked me to withdraw 
>>>> the quote or else to seek permission from the
>>>> publishers or Adenaur 
>>>> Foundation.
>>>> 
>>>> The Adenaur Foundation's workshop proceedings
>>>> (photocopied - spiral 
>>>> bound) has no text on it forbidding any quoting or
>> for
>>>> that matter any 
>>>> further circulation. Author's text also does not
>> carry
>>>> any `do not 
>>>> quote` sticker.
>>>> 
>>>> I need to reply to Rumman as she is also a young
>>>> scholar putting her 
>>>> tentative feet into the world of academic paper
>>>> publishing. But, i 
>>>> really like what she has stated in her paper and
>> would
>>>> like all my blog 
>>>> readers to engage with these observations.
>>>> 
>>>> Now, what am i supposed to make of all this? Do as
>>>> researchers, we have 
>>>> to wait for publishing houses to give permissions
>> for
>>>> comparing, 
>>>> appreciating, critiquing, our peers' work?
>>>> 
>>>> I am a little baffled and distressed by all this,
>> and
>>>> need all of yours 
>>>> collective insights into this.
>>>> 
>>>> yours in anticipation
>>>> 
>>>> Ritika
>>>> 
>>>> 
>>>> 
>>>> -- 
>>>> Ritika Shrimali
>>>> The Sarai Programme
>>>> 
>>>> http://blog.sarai.net/users/ritika
>>>> _______________________________________________
>>>> commons-law mailing list
>>>> commons-law at sarai.net
>> 
>>> https://mail.sarai.net/mailman/listinfo/commons-law
>>> 
>>> 
>>> Ashira Law
>>> Advocates and Legal Consultants
>>> 50/6 Palace Road
>>> Bangalore 56 00 52
>>> Ph: 0091-80-2261090
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>> 
>> 
>> -- 
>> Ritika Shrimali
>> The Sarai Programme
>> 
>> http://blog.sarai.net/users/ritika
>> _______________________________________________
>> commons-law mailing list
>> commons-law at sarai.net
>> https://mail.sarai.net/mailman/listinfo/commons-law
>>  
> 
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