IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 32 of 2008()
1. VINAYAKUMAR @ VINAYAN,
... Petitioner
Vs
1. SARATH CHANDRAN,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.P.VIJAYA BHANU (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :12/11/2010
O R D E R
M.SASIDHARAN NAMBIAR, J.
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Crl.M.C No.32 OF 2008
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Dated this the 12th day of November, 2010.
O R D E R
Petitioner is the first accused in C.C.No.450 of 2001 on the
file of Judicial First Class Magistrate Court-IV, Kozhikode, taken
cognizance for the offences under Section 63 of Copy rights Act
and Sections 418 and 420 r/w Section 34 of Indian Penal code.
The petition is filed under Section 482 of Code of Criminal
Procedure to quash the cognizance taken contending that
ingredients of the offences are not at all attracted. Petitioner
would contend that, the story of Malayalam Movie ‘Vasanthiyum
Lakshmiyum Pinne Njanum’ is not the story of ‘Partha’ authored
by the first respondent and, therefore, neither an offence under
Section 63 of copy rights Act or offences under Indian Penal
code are attracted.
2. Learned counsel appearing for the petitioner and the
learned Public Prosecutor were heard.
3. Annexure-A the final report submitted by the Sub
Inspector of police which was taken cognizance by the learned
Magistrate shows that prosecution case is that a story written by
the first respondent by name ‘Partha’ was published in 1999
March-April issue of magazine ‘In Wayanad’ and without
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permission, knowledge or consent of the first respondent
violating the copy right of the first respondent, fifth accused in
furtherance of the common intention after making slight changes,
making use of the story, created Malayalam Movie ‘Vasanthiyum
Lakshmiyum Pinne Njanum’ suppressing the real facts from the
first respondent with an intention to cause loss to him, and
thereby committed offences under section 418 and 420 r/w 34 of
Indian Penal Code and 63 of Copy Right Act. The copy of the
story ‘Partha’ is produced by the petitioner as Annexure-F.
Annexure-E is the summery of the story of Malayalam Movie
‘Vasanthiyum Lakshmiyum Pinne Njanum’. The learned counsel
appearing for the petitioner pointed out that Annexure-D story
has no resemblance with the story seen as Annexure-E. Case is
that except the main character is a blind singer and he is having
a sister in both stories, there is no violation of the provisions of
the Copy right Act. The learned counsel also pointed out that
Annexure-E story has nothing to do with Annexure-F story of the
first respondent and hence cognizance is to be quashed. Learned
counsel relied on the decision of the Apex Court in R.G.Anand v.
Delux Films, (AIR 1978 SC 1613), which was followed by the
Division Bench of this Court in Madhavan v. S.K.Nayar and
Crl.M.C No.32 OF 2008 3
others, (1987 (2) KLT 47).
4. Learned counsel appearing for the first respondent
pointed out that the crime was registered based on a complaint
filed by the first respondent and the complaint discloses that
when the case of the first respondent is that the story of the
Malayalam Movie ‘Vasanthiyum Lakshmiyum Pinne Njanum’ is
taken from a one line story handed over to the accused by the
first respondent, and the Investigating Officer did not properly
investigate the case. But the prosecution case is only that
Malayalam movie was created based on the story of the first
respondent by name ‘Partha’ (Annexure-F) which is in violation of
the Copy Right Act and not that there is violation of the copy
right of a one line story.
5. A reading of Annexure-F story written by the first
respondent and Annexure-E story of the Malayalam movie show
that both stories are distinct and different. Hence learned counsel
appearing for the first respondent was directed to point out the
similarities in the two stories. Learned counsel produced a
statement prepared by the first respondent, which according to
the first respondent shows that both the stories are similar. The
said statement claims that the main characters of both the
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stories are blind singers and both earn by singing and maintain
their family and both characters have a younger sister who is
maintained by the blind singer. It is also point out that there is a
similar dialog in the story and in both stories when the singer
reaches home his sister asks the causes for the delay. It is also
claimed that in both the stories, the singer is a lover and both
singers are dumb. But Annexure-F story does not show that
Andriya who loves the singer was a dumb person. It is claimed
that the sisters in both the stories have a lover, though both the
lovers were having different avocations. It is also stated that in
both cases steps were taken to have operation to the main
character, so that he could regain eye sight, though it is alleged
that subsequently the story in the movie was developed.
6. On a reading of the two stories I cannot agree with the
case of the prosecution that the story of ‘Vasanthiyum
Lakshmiyum Pinne Njanum’ the same as seen Annexure-F and it is
in violation of the Copy right of the story ‘Partha’ written by the
first respondent.
7. The Hon’ble Supreme court in R.G. Anand’s case(Supra)
laid down the following propositions emerging on a careful
consideration and elucidation of the various authorities based on
Crl.M.C No.32 OF 2008 5
the case law on the subject of Copy Right. They are:-
“1. There can be no copyright in an idea, subject-matter,
themes, plots or historical or legendry facts and violation of the
copyright in such cases is confined to the form, manner and
arrangement and expression of the idea by the author of the
copyrighted work.
2. Where the same idea is being developed in a different
manner, it is manifest that the source being common,
similarities are bound to occur. In such a case the courts should
determine whether or not the similarities are on fundamental or
substantial aspects of the mode of expression adopted in the
copyrighted work. If the defendant’s work is nothing but a
literal imitation of the copyrighted work with some variations
here and there it would amount to violation of the copyright. In
other words, in order to be actionable the copy must be a
substantial and material one which at once leads to the
conclusion that the defendant is guilty of an act of piracy.
3. one of the surest and the safest test to determine
whether or not there has been a violation of copyright is to see
if the reader, spectator or the viewer after having read or seen
both the works is clearly of the opinion and gets an
unmistakable impression that the subsequent work appears to
be a copy of the original.
4. Where the theme is the same but is presented and
treated differently so that the subsequent work becomes a
completely new work, no question of violation of copyright
arises.
5. Where however apart from the similarities appearing in
the two works there are also material and broad dissimilarities
which negative the intention to copy the original and the
coincidences appearing in the two works are clearly incidental
no infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy
it must be proved by clear and cogent evidence after applying
the various tests laid down by the case law discussed above.
7. Where, however, the question is of the violation of the
copyright of stage play by a film producer or a Director the task
of the plaintiff becomes more difficult to prove piracy. It is
manifest that unlike a stage play a film has a much broader
perspective, wider field and a bigger background where the
defendants can by introducing a variety of incidents gave a
colour and complexion different from the manner in which theCrl.M.C No.32 OF 2008 6
copyrighted work has expressed the idea. Even so, if the viewer
after seeing the film gets a totality of impression that the film is
by and large a copy of the original play, violation of the
copyright may be said to be proved.”
This Court in Madhavan’s case(supra) followed the said
principles.
8. When the story written by the first respondent is read
along with Annexure-E story of the Malayalam Movie it can only
be formed that it is not in violation of Copy Right of Annexure-F
story. If that be so the cognizance taken for the offence under
Section 63 of the Copy Right Act can only be quashed.
9. If the prosecution case is that the Malayalam movie
created by the petitioner, was not the same story of the first
respondent, by name ‘Partha’, the further case of the prosecution
that petitioner has committed offences under Sections 418 and
420 of Indian Penal code can only be quashed. The learned
counsel appearing for the first respondent submitted that said
case is based on the allegation that the one line story furnished
by first respondent to the petitioner and others was used for
creating the film. But no such one line story was produced by the
prosecution or it was relied by the prosecution in the final report.
In such circumstances the cognizance taken for the offences
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under Section 418 and 420 also can also quashed.
Petition is allowed. Cognizance taken in C.C.No.450 of
2001, on the file of Judicial First Class Magistrate Court-IV,
Kozhikode is quashed.
M.SASIDHARAN NAMBIAR, JUDGE.
mns