COPYRIGHT ARGUMENT.

(SAM and BSL)

1. ORIGINAL LITERARY WORK
According to section 13 the Copyright Act, 1957, copyright subsists in original literary work.
Copyright Act is not concerned with the originality of the ideas but with the expression of
thought in print or writing. Such work must not be copied and should originate from the
author.1 Literary work means includes all the work that which comes under the ambit of
literature. The word literary is used in the same sense as the word literature in political
and electioneering literature and refers to written or printed matter.2
Test of originality- For a work to be original it should not be copied from another work and
that it should originate from the author. The said work should be a product of the labour, skill
and capital of the author and the work, the elements and the raw materials should not be
appropriated by others. The author should impart the precise amount of knowledge, labour,
judgement or literary skill which gives the product that quality which the raw material did not
had. 3 In the current case the book Ballad of malice and power was an original work of Jack
Samuelson. The book was published in a series of 7 books in span of 20 years. Thus
qualifying the all test of originality that should be there for copyright of any literary work.
Ideas cannot be protected under copyright laws but only the expression of the ideas is
protected. If the idea is put into any form of words or any form of expression and is thus
reduced into writing or tangible form then, the work can be protected under copyright laws 4.
In this case even though the character Boromir Bohemia had no physical appearance but
the character was reduced into words and expression and thus was not just an idea but
expression of idea and thus should be protected under the law

FICTIONAL CHARACTER (More research required)

A fictional character is a word portrait and the physical appearance and characterization
reside in the mind of the reader. Protection can be granted to the fictional character if the
character plays a pivotal role in the story and the audience and the readers associate that
character to one specific show, book or author. (Authority needed)
1 Camlin Private ltd v. National Pencil Industries,96 (2002) DLT 8: 2002(24) PTC
349 (Del) (DB).
2 University of London Press Ltd. V. University Tutorial Press Ltd.,1916 2 ChD 601;
Shyam Lal v. Gaya Prasad, AIR 1971 All 192
3 Macmillian v. Cooper. AIR 1924 PC 75
4 Donoughe v. Allied Newspaper, Ltd.,(1937) 3 Ch. D. 503

In Warner Brothers Pictures v. Columbia Broadcasting Systems the court held that the
character can be copyrighted if it is well delineated as to constitute the story being told. 5
(interpretation of story being told).
INFRINGMENT OF COPYRIGHT
The Copyright Act, 1957, extends copyright protection to the work by conferring certain
exclusive rights on its author. The rational of providing copyright protection to the owner of
the work is to enable him to reap the fruits of his labour and investment to the exclusion of
others. Infringement of a Copyright is a trespass in a private domain owned and occupied by
the owner of the Copyright, and therefore, protected by law6.
Under Section 51 of the Copyright Act, 1957 a work is deemed to be infringed when any
person without the permission of the owner of the copyrighta) Does anything, the exclusive right to do is conferred to the owner of the copyright.
b) Distributes or sells the infringing copies of the work for the purpose of trade or to
such an extent as to affect prejudicially the owner of the copyright.
If any person without the consent of the owner of the copyright copies his work, he will be
infringing the copyright under Section 51 read with Section 14(a) and Section 14(b) of the
Act. (Check 14 a and B)
In Shyam Lal Paharia and Another v. Gaya Prasad Gupta Rasal 7the court observed1) The question whether an impugned work is colourable imitation of another persons
work is always a question of fact and has to be determined from the circumstance in
each case.
2) The determining factor in finding whether another persons copyright has been
infringed is to see whether the impugned work is a slavish imitation and copy of
another persons work or it bears the impress of authors own labours and exertions.
The animus furandi, that is, an intention to take from another for purpose of saving labour,
is one of the important ingredients to be found against a defendant before he can, in a suit
under the Copyright Act, be damnified8.

5 216 F 2d945, 104 US P Q 103( 9th Cir 1954)

6 Bobbs- Merrill Company v. Isidor Straus and Nathan Straus, 210 US 339 :
(1907) 52 L Ed 1086
7 Shyam Lal Paharia and Another v. Gaya Prasad Gupta Rasal, AIR 1971 All 192
8 Federation of Industries of India and Another v. G. Kesavalu Naidu, 2011 (48) PTC 496
(Del) at p. 507.

INDIRECT COPYING SUBSTANTIAL TAKING

One of the tests to decide whether a work is a copy of other is to see the impact of the copied
work on the mind of the people reading it, if after looking at the copied work readers
associate that work with the author then it can be infringement of copyright of the original
owner9. The question whether copied a substantial part depends much more on the quality
than the quantity of what he has taken10. What is substantial is a question of facts and degree.
The quantity is not the test but it is the value which is looked into, even short extracts and
characters may form the substantial part of the work11. In the current case even though the
character of Boromir Bohemia has little mention in the story but still his character is very
important in the story as given in the paragraph 5 of the fact sheet.
For a compliant the plaintiff must show that his work was original and the work copied must
be substantial. It should also be proves that the copying affects the fruits of this labour 12. In
Daily Calender Supplying Bureau, Sivakasi v. United Concern it was observed that there can
be no test as to check whether what a substantial part is 13. It depends on the effect produced
upon the mind by the study of the work and of that which is alleged to be a copy of it14
In Zee Telefilms Ltd v. Sundial Communication Pvt Ltd, it was observed that in order to find
the similarity in the two concepts what was to be seen is the substance, the kernel and the
foundation as to see if the rest could stand without it. If it could not, then if any number of
similarities exists it will be considered to be a copy of the original15.
In Mother Dairy Fruit and Vegetable Pvt. LTd. V. Mallikarjuna Dairy Products Pvt. Ltd it was
given that the test to applied in case of infringement is as to see the effect produced on the
mind of the person who has seen the work of the plaintiff and the defendant. The degree of
resemblance in the work should suggest an impression in the mind of the reader that the work
of the defendant is that of the plaintiff.16
9 K.R Venugopal Sarma v. Sangu ganesan, 1972 Cr L J 1098 (Mad).
10 Ladbroke v. William Hill, (1964) 1 W.L.R 273 atp. 276
11 Johnslone v. Bernard Jones Publications Ltd, Beauehamp (1938) 1 Ch. 599.
12 F.L. Berawalla and Another v. R.K jain and Others, 26 (1984) DLT 176
13 Daily Calender Supplying Bureau, Sivakasi v. United Concern, AIR 1967 Mad 381

14 Hanfstaengl v. Bains and Co., 1895 AC 20, 25.

15 Zee Telefilms Ltd v. Sundial Communications Pvt. Ltd., (27) PTC 457 (BOM)
(DB)

CAUSAL CONNECTION
In order to prove infringement, the plaintiff must prove that there is causal connection
between the work of the plaintiff and the defendant. If there are similarities in the work and
that the plaintiffs work was earlier, then the presumption will be that the defendant has
copied from the plaintiffs work unless it is rebutted. The similarities of incidents and
situation undoubtedly afford prima facie evidence of copy and in the absence of any
explanation by the defendant regarding the sources, the plaintiffs must succeed 17.
Anand wala case

16 Mother Dairy Fruit and Vegetable Pvt. LTd. V. Mallikarjuna Dairy Products Pvt.
Ltd 2012 (49) PTC 346 (Del.) at p. 251.
17 Harnam Pictures N.V v. Osborn, (1967) 1 WLR 723: (1967) 2 All ER 324