JUDGMENT
Brij Kishore Sharma, Chairman
1. This is an application under Section 50 of the Copyright Act, 1957 for rectification of the register of Copyrights. The applicant is engaged in the business of manufacturing and marketing of Bidis. He claims to be the originator and proprietor of an original artistic work entitled “No. 206 Super Shiv Bidi Label and Wrapper”. He claims to have adopted the said artistic work in the year 1999 and that he has been continuously using the same. He further states his “goods bearing the said trademark I artistic work I labels command huge demand in the market on account of standard quality”. The applicant applied for the registration of trademark under the Trade and Merchandise Marks Act, 1958 in which he mentions 10.4.1995 as the date of the user of the trademark. Later on, he applied to the Trademark Office for amendment so that the user would read “since the year 1991”.
2. The applicant also claims to be the owner and proprietor of the artistic work “No. 206 Super Shiv Bidi”. it is stated in the plaint that he is the owner and proprietor of the artistic work and that he has made an application for registration of copyright before the Registrar of Copyrights.
3. His grievance is that the respondents are using a label “No. 203 Special Shiv Bidi” which according to the applicant is a slavish copy of his label. It is stated that the label of the respondent is identical with and deceptively similar to the label of the applicant. The respondent obtained the registration of the said label (hereinafter No. 203) under the Copyright Act, 1957. The applicant pleads that the registration was obtained dishonestly and by suppressing material facts. It is further stated that the respondents are not the owners or authors of the said artistic work No. 203. The respondents’ label No. 203 according to the applicant is a slavish imitation of his label “No. 206 Super Shiv Bidi” (hereinafter No. 206). According to the applicant the respondents are guilty of passing of their goods and business as that of the petitioners. It is further stated that civil and criminal cases are pending between the two parties in different Courts. The applicant claims to be an aggrieved party because the work No. 203 is not original and is a slavish copy of the work of the applicant which is referred in this Order as No. 206.
4. The respondent in his written reply starts by giving the background of the facts in chronological Order most of which are completely irrelevant to the present proceedings. According to the respondent, the present respondent a private limited company was constituted in 1992 which is successor to a partnership founded in 1990 which itself is a successor to a proprietorship which commenced business in 1987. In the written statement the respondents have questioned that the applicant could not have used the artistic work because he obtained the excise licence to manufacture bidis in the year 1996 and without a valid excise licence he could not have manufactured Bidis. In the written statement extensive quotations are given from the pleadings in various Courts including a suit at a Civil Court in Jhajjar (Haryana) and another at Murshidabad (West Bengal). In the written statement it is repeatedly stated that the respondent used and advertised No. 203 continuously since 1992 [Para G(i) of the written statement.] Details of the proceedings in various Civil and Criminal Courts also form part of the written statement.
5. The matter was listed for hearing before the Board at Bhubaneshwar on 19.12.2003. On that date the advocate for the applicant moved an application for adjournment on the ground that his father-in-law is to undergo bypass surgery on 19.12.2003. Another counsel appeared on behalf of the advocate for the respondent and stated that the advocate could not reach in time from Delhi. The Board regretted that the advocates are seeking adjournment on totally flimsy grounds and, therefore, it was decided that the parties will file their written submissions and the matter would be decided on the basis of written submissions only. No oral hearing would be given.
6. The parties thereafter filed written submissions within the prescribed time. It is surprising that in the written submissions in Para B on page 2 the advocate for the respondent gave altogether a different reason for not appearing before the Board at Bhubaneshwar on 19.12.2003.
7. The documents submitted by the respondent are quite voluminous and most if not all have no bearing at all with the present application. Similarly, the written submissions also are in most part not at all relevant. We observe this because we have carefully gone through every page.
8. The applicant has tried to argue that No. 206 -his artistic work-is original which was created at his instance by Messrs Design Centre and the copyright was assigned to him in 1991. The petitioner has been continuously using No. 206 as a label and wrapper for Bidis manufactured and sold by him. He states that the work of the respondent ,is a slavish copy of his work and, therefore, should not have been registered and must not be allowed to remain on the register.
9. On the other hand, the respondent has stated that the applicant has not been able to discharge the onus that the entry in the copyright register was wrongly made. According to the respondent the applicant has not come with clean hands and has suppressed material on vital facts and does not deserve relief from the Board. He has further argued that the applicant is not a person aggrieved within the meaning of Section 50 of the Copyright Act. It is further stated that the Respondent is a prior user and that the applicant came as a user only in 1995. It is again stated that the applicant obtained an excise licence in 1996 and so could not have manufactured Bidis before that year. The respondent has again reproduced the list of documents which is a copy of the list contained in the paper book submitted by the respondent. The respondent repeatedly quoted from the proceedings before the Civil and Criminal Courts.
10. The Board would like to state that Section 50 of the Copyright Act confers a limited jurisdiction on the Board. The Section reads as under:
50. Rectification of Register by Copyright Board.- The Copyright Board, on application of the Registrar of Copyrights or of any person aggrieved, shall Order the rectification of the Register of Copyrights by-
(a) the making of any entry wrongly omitted to be made in the register, or
(b) the expunging of any entry wrongly made in, or remaining on, the register, or
(c) the correction of any error or defect in the register.
What is required to be proved in the first place is the maintainability of the application. The application can be moved either by the Registrar of Copyrights or by a person aggrieved. The Registrar being an officer of the Government acts in his official capacity and need not be a party aggrieved. But if an individual or a body of persons makes an application, it will be entertained only if it is established that the applicant is a person aggrieved. After establishing locus standi it must be proved, in case the applicant seeks relief of expunction of an entry, that the entry was wrongly made or wrongly remains on the register.
11. At the same time, provisions of Section 13 of the Copyright Act must be borne in mind. For our present purpose only Sub-section (1) of Section 13 is relevant and is therefore quoted below:
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.
X X X X X
It is laid down in the said provision that copyright shall subsist only in three types of work (a) original literary, dramatic, musical and artistic works; (b) cinematograph films and (c) sound recordings. Artistic work in Order to be eligible for registration must be original but the originality required is not of a very high degree. The leading case on this point is Macmillan and Co. v. K. and J. Cooper, AIR 1942 PC 75. It was stated in that case:
“The word ‘original’ does not mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the origin of ideas, but with the expression of thought and in the case of ‘literary work’ with the expression of thought in print or writing. The originality which is required related to the expression of the thought; but the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work that it should originate from the author.”
The originality required is minimal. If a person reads books written by other authors or if an artist closely observes the art work produced by other persons and by employing his own skill, labour, knowledge and talent creates a work, the work so created will be regarded as original. What is originality has been considered by the Courts on several occasions. Originality does not mean that the author creates something which had never existed before. We would also like to clarify that the date of the establishment of a firm or any other body of persons is not much relevant in the context of copyright. What is relevant is the date of the creation of the artistic work. Another thing that is to be borne in mind is that the length and user of an artistic work is completely irrelevant in the context of copyright. It may be relevant and necessary in an action for passing of or in some other action in relation to a trademark. For example, an artist may prepare an art work and just hang it in his drawing room and may not sell it or exhibit it publicly. Commercial user of an Article work is not necessary for establishing copyright in that work. If a person has not created an artistic or literary work, he cannot become the author of the work even though he might have used it repeatedly. It is the creator or author of an artistic or literary work who owns the copyright in the work whether he has used it for commercial gain or not and whether he has got it registered or not.
12. None of the parties has cared to go to the gist of the matter but have been arguing their cases as if the Copyright Board is to decided a question of passing of or infringement of a trademark. We have compared the two artistic works which we have earlier referred to as No. 203 and No. 206. There are lots of dissimilarities between the two. The numbers are different. The lettering is different. The photographs given in the circle are different. The names of manufacturers are different. Their addresses are different and the licence numbers printed are different. All that can be said is that one of them might have conceived the idea of using a photograph (perhaps of the proprietor or a partner) in the label. The idea might have appealed to the other party who has copied it. Similarly, one party has used a number (in this case either 206 or 203) and the other party may have regarded it as a novelty and tried to immitate. Thus from our perusal and comparison of the two artistic works, it appears that both may be regarded as original though based on similar ideas.
13. It is well known that there is no copyright in ideas. Copyright Acts are not concerned with the originality of ideas but with the expression of thought. The originality which is required relates to the expression of thought. The law of copyright gives protection to the way the ideas are expressed. The ideas are not given protection. Thus, the artists who created the two artistic works, namely, No. 203 and No. 206, may have been driven by similar ideas but then they applied their originality, skill, knowledge and labour and the result of the efforts was an artistic work which is independent of each other and not a copy of the other.
14. The applicant has not been able to place any evidence before the Board which may lead to the conclusion that the entries were wrongly made. No evidence was adduced which may lead to the conclusion that any part of the statement filed before the Registrar was wrong or amounted to misrepresentation or fraud. Thus, there is no reason to hold that the entry was wrongly made.
15. In the argument it was submitted that notice ought to have been issued under Rule 16 of the Copyright Rules to the applicant. This was not a ground taken in the application. Even if it is allowed, there is no material before the Board to hold that the applicant was a person who claims or has any interest in the subject matter of the copyright. Just because he was also a manufacturer of Bidi like the respondent he cannot be designated as an interested party. If it were so, a Bidi manufacturer will have to give notice to all other Bidi manufacturers and anyone who does not receive notice will be entitled to come and get the registration expunged. This would be a most unjust provision and we cannot interpret a law in this manner. It would have been better if the parties understood the law of copyright and did not make an attempt to invite the Copyright Board to work as a Civil Court or a Tribunal dealing with trademarks, If this is kept in mind, the pleading and arguments would be short, simple and crisp.
16. For the reasons given above, we hold that the applicant has no locus standi to challenge the entry and that even if he is permitted to do so, he has not been able to make out any case for expunction of the entry.
17. The application is dismissed.