High Court Kerala High Court

Vinayakumar @ Vinayan vs Sarath Chandran on 12 November, 2010

Kerala High Court
Vinayakumar @ Vinayan vs Sarath Chandran on 12 November, 2010
       

  

  

 
 
  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.
          --------------------------------------------------------
                       Crl.M.C No.32 OF 2008
          ---------------------------------------------------------
         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

Crl.M.C No.32 OF 2008 2

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

Crl.M.C No.32 OF 2008 4

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 the

Crl.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

Crl.M.C No.32 OF 2008 7

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