1. In the case of Raj Prakash v.

Mangat Ram Choudhary, AIR 1978 Del 1, it was held

that an invention, as is well known, is to find out something or discover something not
found or discovered by anyone before. It is not necessary that the invention should be
anything complicated. The essential thing is that the inventor was first to adopt it. The
principle, therefore, is that every simple invention that is claimed, so long as it is
something which is novel or new, it would be an invention and the claims and
specifications have to be read in that light.

2. The relevance or say importance of the specification can be seen in the landmark
judgement of the Supreme Court in the case of Biswanath Prasad Radhey Shyam v.
Hindustan Metal Industries,
Hindustan Metal Industries (Plaintiff) is a registered partnership firm carrying on the
business of manufacturing brass and German silver utensils at Mirzapur.
§ Biswanath Prasad Radhey Shyam (Defendant) is a concern carrying on the business
of manufacturing dishes and utensils in Mirzapur.
§ The old method of manufacturing utensils, particularly shallow dishes, was to turn
scrap and polish them on some sort of headstock without a tailstock, the utensils
either being fixed to the headstock by thermoplastic cement or held in the jaws of a
chuck fixed to the head-stock. This system was, however, fraught with risk to the
workers inasmuch as the utensils used to fly off from the headstock.
§ To introduce improvement, convenience speed, safety and better finish plaintiff
invented a device and method for the manufacture of utensils and got the alleged
invention patented under the Indian Patent and Designs Act, 1911.
§ The defendant started using plaintiff’s patented method for manufacturing of dishes,
against which the plaintiff filed the case of infringement.
§ The defendant filed a counter-claim, praying for revocation of the patent on the
grounds that the alleged invention did not involve any inventive step and has no
utility.
Held: where the court had made reference to Arnold v. Bradbury, to arrive at the
principle that the proper way to construe a specification is not to read the claims first
and then see what the full description of the invention is, accordingly the description
of the invention needs to be read first, in order for the reader’s mind may be prepared
for what it is, that the invention is to be claimed and also for the patentee that he
cannot claim more that he desires to patent. From the above discussed case, it is well
understood that the specification is the important aspect of an invention. When
themeaning of a term in a claim is not clear, the description will be relied upon to
understand the term in context of what is described in the specification. A complete
specification in whole is important for an invention.Essential components of a
complete specification are description, claims, drawings, abstract and sequence
listings, if any. All these essentials combine to form a complete specification. The
goal behind the full disclosure of the invention in the specification part is that a
 person skilled in the art may be able to perform the invention or more preferably an
ordinary person can able to understand the invention upto maximum extent.

2. Novartis v. Union of India (2013) 6 SCC 1 :-

Rejection of a patent for a Drug which was not ‘inventive’ or had an superior ‘efficacy’-

Novartis filled an application to patent one of its drugs called ‘Gleevec’ by covering it under
the word invention mentioned in Section 3 of the Patents Act,1970. The Supreme Court
rejected their application after a 7 year long battle by giving the following reasons: Firstly
there was no invention of a new drug, as a mere discovery of an existing drug would not
amount to invention. Secondly Supreme Court upheld the view that under Indian Patent Act
for grant of pharmaceutical patents apart from proving the traditional tests of novelty,
inventive step and application, there is a new test of enhanced therapeutic efficacy for claims
that cover incremental changes to existing drugs which also Novartis’s drug did not qualify.
This became a landmark judgment because the court looked beyond the technicalities and
into the fact that the attempt of such companies to ‘evergreen’ their patents and making them
inaccessible at nominal rates.

Sufficiency of Disclosure
In Press Metal Corporation Limited V. Noshir Sorabji Pochkhanawalla (1982 PTC 259
(Bom)), it was held that – “It is the duty of a patentee to state clearly and distinctly the nature
and limits of what he claims. If the language used by the patentee is obscure and ambiguous,
no patent can be granted, and it is immaterial whether the obscurity in the language is due to
design or carelessness or want of skill. It is undoubtedly true that the language used in
describing an invention would depend upon the class of person versed in the art and who
intend to act upon the specifications. In the present case, the invention is described in an
obscure and ambiguous language, and on this ground, the patent is liable to be refused”.
Also the applicant is required to disclose the source and geographical origin of such materials
as used in the invention, subject to provisions of section 10(4). For details please refer to the
guidelines on biotech and Traditional Knowledge.
The description should not contain passages which confuse the scope of the invention.
Where particular description or drawings do not exemplify the invention claimed, for
example, where they are included by way of explaining the invention or for comparison or
where they relate to prior art, the description should make this clear.

Lallubhai Chakubhai Jariwala v Chimanlal Chunilal and Co the court observed that:
“the two features necessary to the validity of a patent are novelty and utility, but the real test
is the novelty of the invention. Novelty is essential, for otherwise there would be no benefit
given to the public and consequently
no consideration moving from the patentee [while interpreting the factor related to public
knowledge and public use.]”
The court further held as follows:
“The next question is, whether the plaintiff’s invention has been anticipated by prior public
user. Has it been publicly used by the plaintiff and/or by others before the date of the
application? Public user does not mean a user or exercise of the invention by the public, but
a user or exercise in a public manner; and it is in every case a question of fact. If the
invention is being put into practice before and at the date of the grant, the grant will not be
for a new invention or manufacture, and this applies equally whether the invention is being
practised by the patentee himself or by others. A use of the invention for the purposes of
trade may constitute a prior user which invalidates the patent, and it has been held that the
prior public sale of goods or articles treated according to the invention is a public user of the
invention, for the sale is strong evidence that the user was really commercial and not
experimental.”

Copyright case laws

1. Super Cassettes Industries Pvt. Ltd. vs. Prime Cable Network and Anr., Delhi High
Court, CS(COMM) 594/2016
The plaintiff, in this matter, is in the business of producing and marketing music cassettes,
compact discs, etc., in addition to producing and distributing films. Defendant no.1 is a large
provider of ground cable network services in the State of Uttarakhand and defendant no.2 is
an
individual working for defendant no.1. The plaintiff claims to be the owner of a large number
of
copyrights in music and literary works, films and sound recordings, including Hindi film
songs,
non-film songs, and songs in regional languages. As a part of its business activities the
plaintiff
grants licenses to various entities to allow them to use its copyrighted works. Such entities
include FM Radio Stations, Television Broadcasters, Multi-System Operators (MSO), etc.
The
plaintiff has stated in this suit, that defendant no.1 operates as a MSO and has alleged that
defendant no.1 has broadcasted and/or communicated the plaintiff’s copyrighted sound
recordings, the underlying lyrics, musical composition and the audio – visual works, to the
public
through its cable network, thereby infringing the plaintiff’s copyright. After the plaintiff
learned
about this alleged infringement, it initially sent notices informing defendant no.1 of its
infringing
activities and directed defendant no.1, to acquire the necessary licenses for the content that it
was broadcasting, which was owned by the plaintiff. Defendant no.1 however, did not
respond
to any of these notices, and continued to broadcast infringing content through its cable
network.
Following this, the plaintiff filed a copyright infringement suit against defendant no.1 in the
Delhi
High Court and in addition to this the plaintiff also conducted an investigation and presented
the
findings from the investigation as evidence in court. The evidence included the recordings of
the
infringing content being broadcasted on defendant no.1’s cable network, which substantiated
the plaintiff’s claims of copyright infringement against defendant no.1.
Upon reviewing the facts of the case and the evidence presented by the plaintiff, the court
decided in favour of the plaintiff and granted an order of permanent injunction. The court also
ordered the defendants to pay damages to the plaintiff.
2. R.G Anand vs M/S. Delux Films & Ors -
determining copyright infringement:
If the defendant's work is nothing but a literal imitation of the copyright 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. Mr. Anil Gupta and (2) Another. vs. (1) Mr. Kunal Dasgupta and (2) Others –
A landmark case, indeed, in the area of protecting ideas and concepts. This case elucidates
the
dos and don’ts of Idea Protection and Breach of Confidence in the Entertainment Industry.
Plaintiff No. 1 – a Media Consultant
Defendant No. 2 – a Television Production House
It is the case of the Plaintiff that he conceived the idea of producing a reality television
programme containing the process of matchmaking to the point of actual spouse selection in
which real everyday ordinary people would participate before a Television audience. The
Plaintiff had devised a novel concept for a TV show in which it would be the prerogative of a
woman to select a groom from a variety of suitors. They had even decided to name the
concept
‘Swayamvar’, knowing well that a large number of people would associate the name with the
idea of a woman selecting a groom in a public forum and that it would create the necessary
instantaneous recall and recognition of the mythological Swayamvar, giving the programme a
head-start.
The aforesaid concept titled ‘Swayamvar’ was disclosed in early 1997 by the Plaintiff to his
wife
and one Mr. K Chandrasehkar. The Plaintiff then applied for registration after developing the
concept as a piece of literary work under the Copyright Act. The work was registered and a
certificate was duly issued in favor of the Plaintiff.
The Plaintiff put forth that in May/June of 1998, they spoke to Defendant No. 1 and gave a
1-page concept note of ‘Swayamvar’ to the Defendant, who gave an enthusiastic response to
the idea. Defendant No. 1 further asked the Plaintiff to give a detailed presentation. Further,
the
Plaintiff contended that the concept note given by the Plaintiff to the Defendant at said
meeting
was a disclosure in utmost confidence which is the usual practice in the industry.
The second meeting took place in Defendant No. 1’s office with the Plaintiff. The Plaintiff
then
described the concept of Swayamvar. It has been averred in the Plaint that the Plaintiff
informed
the Defendant that he had registered his concept and the same was copyrighted. On the same
day, the Plaintiff further elaborated the programme structure and format, divided into
segments
for easy implementation.
It is further the case of the Plaintiff that another meeting was fixed at the Defendants’ office.
In
said meeting, the Plaintiff handed over to the Defendant, a letter which contained a proposal
for
five programmes including ‘Swayamvar’. This letter also accompanied a brief concept note
containing the essential details and proposed format of ‘Swayamvar’. After said meeting, the
Defendants asked the Plaintiff to give a detailed presentation at the earliest.
Another meeting was held between the Defendants and the wife and son of the Plaintiff,
where
a PowerPoint Presentation was given to the large team of executive of the Defendants. The
printed version of the presentation and an internal discussion document which had been
prepared by the Plaintiff’s said representatives, was also handed to the Defendants after the
presentation.
Subsequently, the Plaintiff saw an article titled ‘Camera, Lights, Shehnai! SONY TV to play
Matchmaker’. Said article informed that Defendant No. 2 was due to launch a big budget
reality
TV show which would provide a platform for matchmaking. The report indicated that it
would be
like a Swayamvar or a marriage bureau on television.
The Plaintiff presented that this article and others appearing subsequently in newspapers as
well as the internet, uncannily replicated the information confidentially disclosed by him to
the
Defendants during their meetings and presentations. When he learned that Defendant No. 2
was going to launch a reality TV show ‘Shubh Vivah’, he wrote a letter to the Defendant to
clarify any misconception of the source of the idea and then a legal notice was sent. The
Defendant replied to said legal notice stating that what they were making was not a copy of
Swayamvar and also took the stand that they had made the Plaintiff aware in their meetings
that
the Defendants were in the process of producing a programme based on the same theme.
Now clearly miffed, the Plaintiff contended that a copyright was held by him for a creative,
unique and novel reality TV programme that conducts real life matchmaking by giving
certain
women the opportunity, with mediation by an anchor person, to choose a husband of their
choice from a chosen few suitors, in the presence of parents, in the studio. The Plaintiff
sought
copyright protection in the developed production of his concept and the format of his unique
matchmaking show, which was then brought to the attention of the Defendants through
various
meetings held between them.
The Plaintiff contended that Copyright Infringement was afoot, in the guise of the Defendants
taking a concept developed by the Plaintiffs and subsequently reproducing the same in the
format of a TV show proposed by the Plaintiff, only titled differently as Shubh Vivah.
Further,
when the Plaintiff had submitted its programme proposal for consideration, the same was
done
on the understanding that the broadcaster will either accept it or reject it. Therefore, the
Defendants, by using said information imparted to it in strict confidence by the Plaintiff,
breached the confidence reposed in them by the Plaintiff. Plaintiff claimed interim relief on
two
grounds:
Breach of Confidence
Permissibility of registration of idea developed in a concept
ANALYSIS:
After considering the contentions of both parties, the Court held that when a concept note as
well as presentations were admitted to have been received by the Defendants, it cannot be
said
that they were under no obligation to maintain confidence. The argument of the Defendants
that
once the concept was registered under the Copyright Act the same came under public
domain,
cannot be sustained in the eyes of the law. As a matter of fact, when a concept is registered,
the
same is protected from the public domain. Therefore, the Defendants could not be permitted
to
launch its TV programme if the same was based on the concept of Swayamvar, conceived by
the Plaintiff. The Court further opined that it would have been easier for this Court if the
salient
features of Shubh Vivah had been disclosed by the Defendants before this Court.
What had been disclosed before this Court by the Defendants was that they were not
providing
a platform to young woman to choose a spouse from a pool of potential suitors, there was no
involvement of parents either of the girls or of the suitors, there was also no a reward after the
courtship concluded nor were there gifts given to the espoused couple. What is important to
note is that Shubh Vivah is based on the thrill of matchmaking. The concept of spouse
selection
in any form as a reality TV show could not be permitted as that had been conceived by the
Plaintiff at the first instance. To depict matchmaking in the form of a reality TV show or
spouse
selection, was the theme of the concept. How it is done, who plays the anchor person,
whether
gifts were given or not, may be the various elements which may differ but if Shubh Vivah
was
based on the matchmaking process to be televised as a real life drama, the Defendants could
not reap the fruits of labour put in by the Plaintiff. The Courts, satisfied that the Plaintiff had
prima facie proved that the Defendants were aware of the concept of Swayamvar, and hence
had infringed his copyright, granted the injunction.
CONCLUSION:
The case dealt with permissibility of registration of an idea developed in a concept. It was
held
that the idea per se had no copyright, but in case the same was developed into a concept
fledged with adequate details, the same could be registered under the provisions of the
Copyright Act, 1957 – Further, in case the confidential information was used with certain
variations, the same would amount to violation of copyright under Section 51 and 55 of the
Act.
The case discussed the scope of injunction to restrain the Breach of Confidence of the theme,
concept or scripts under Section 51 and 55 of the Copyright Act, 1957. It was held that
interlocutory injunction could be issued to restrain the Breach of Confidence, else the same
could be catastrophic for the television industry.
4. Malayala Manorama v. V T Thomas [AIR 1989 Ker 49]
where a publishing house was injuncted from claiming ownership over the characters created
by
the cartoonist before joining the publishing house and the Court held that the publishing
house
could not restrain the cartoonist from continuing to draw the cartoons after leaving
employment.
This is because the characters had been created by V T Thomas before joining Malayala
Manorama and the publishing house had no role in the creation of the characters. The
publishing house was also restrained from drawing the cartoons after terminating V.T.
Thomas’
employment.
The Kerala High Court did not directly address the issue of copyrightability of characters but
it
decided the issue of ownership of copyright on character; one may therefore conclude that
copyright on character could be claimed successfully by the cartoonist. [See more here].
An important distinction made by the Court was between ownership of the characters per se
and ownership of the cartoon strips made by V T Thomas while he was gainfully employed
by
the publishing house; while the former was a right vesting in the cartoonist, the latter would
be
considered property of the publishing house.
5. Mannu Bhandari v. Kala Vikas Pictures Pvt. Ltd. and Anr.
1987 (7) PTC 87 (DEL)
Facts:
Mannu Bhandari, the Plaintiff/Appellant, was an author of great repute in Hindi Literature.
She
entered into a contract with the Defendants/Respondents for the assignment of the rights in
her
novel ‘Aap Ka Bunty’ for its production into a film.
bunty
The Respondents produced the film ‘Samay Ki Dhara’ based on the aforesaid novel.
samay
However, the Appellant claimed that the Respondents have distorted and mutilated her novel
for
commercial gain.
The Appellant moved the Court of Additional District Judge, Delhi pleading for a decree of
permanent injunction on the screening and exhibition of the film on the grounds that the
Respondents have breached the contract of assignment and have violated her rights under
Section 57 of the Copyright Act, 1957.
Appellant primarily objected to (i) the title ‘Samay Ki Dhara’ and prayed for a direction to
amend
the film’s title, (ii) the change in the exhibition of certain characters of the novel, and (iii) the
mutilation of the theme by use of vulgar dialogues.
The trial/district court refused the relief of ad-interim restraint order to the Appellant. Hence,
the
appeal was filed by the Appellant in the High Court of Delhi.
Before the pronouncement of the judgment by the High Court of Delhi, the parties reached a
settlement that the Respondents would delete the Appellant’s name and the name of her novel
from the credits, and in return, the Appellant shall not claim any rights whatsoever in the film
‘Samay Ki Dhara’. But the parties requested the Court to pronounce the judgment as there
were
no decisions by a Court of law on this issue. Therefore, it turned out to be the first case on the
interpretation of s.57 of the Copyright Act, 1957.
Arguments on behalf of the Appellant:
Novel of the Appellant, ‘Aap Ka Bunty’ is recognised by the public both nationally and
internationally for its script, theme, dialogue, substance and the central idea. If a distorted
version of her novel is allowed to be presented through the film, her admirers would conclude
that she has fallen prey to big money and consented to mutilations and distortions of her
novel
and doubt her sincerity and commitment.
Arguments on behalf of the Respondents:
By signing the contract of assignment, and receiving the full amount in consideration for
assignment of rights, the Appellant had agreed to the modifications. Therefore, the Appellant
cannot object to the modifications after the movie has been produced.
In case of a literary reproduction of the novel with impermissible changes, the publisher can
be
restrained. However, if a film is produced based on the novel, no restraint order can be
passed.
Judgment and Observations made by the Court:
On Respondents’ objection that the acceptance of the total consideration for the assignment
disqualifies the Appellant from holding any rights in the work, the Court held that the
wording of
Section 57, viz. ‘even after the assignment’ dismisses such a contention. Assignment means
the
passing of the title on payment of consideration, and the legislators have made it clear
through
the words used, that the special rights of the author can be exercised even after an
assignment.
The basic question before the Court was how to balance the author’s freedom of expression
with that of the director in the field of art. The Court agreed with the trial Court to as much
that
some changes are inevitable when a novel is being converted into a motion picture, but held
that such changes or modifications should not convert the work into an entirely new version
of
the original work. The modifications should not distort or mutilate the original novel. The
main
theme, the situations and the main characters of the novel must be untouched.
To answer the question, the Court interpreted the scope of Section 57 of the Copyright Act,
1957 and held that the section gives special rights to the author beyond the material gains of
copyright. These rights are independent of the author’s copyright and the remedies open to
the
author under Section 55.
The fact that remedies can be claimed even after an assignment has been made, highlights the
special protection of the intellectual property. Thus, Section 57 has an overriding effect over
the
terms of the contract of assignment of a copyright. Hence, the contract of assignment between
the parties must be read subject to the rights given to an author under Section 57. A contract
cannot negate the special rights and remedies available to an author under the section. The
right of the Appellant/assignor to seek a remedy under the section does not stand waived by
the
assignment.
Though the appeal was disposed off in the terms of the settlement, the observations and
directions of the Hon’ble Court provide a guiding light towards interpretation of Section 57
of the
Copyright Act, 1957.
6. Amaranth shegal v. U. I. O
http://notesforfree.com/2018/01/18/copyright-case-brief-amar-nath-sehgal-v-union-india /

Facts:  Mr. Amar Nath Sehgal is the world-renowned sculpturist and has been conferred with
several awards for his beautiful creations and contribution to the Indian heritage. In the year
1957, the Government of India commissioned Mr. Sehgal for the creating bronze mural for
the most prominent International Convention Hall in the Capital of the Country. The Bronze
sculpture of about 140ft. span and 40ft. sweep took five years to complete and was placed on
the wall of the Lobby in the Convention hall. This embellishment on a national architecture
became a part of the Indian art heritage.
In the year 1979 when government pulled down the sculpture from the walls of ‘Vigyan
Bhawan’ and dumped it in the storeroom. When Mr. Sehgal came to know of this ill
treatment, he made representations to the government authorities for restoration of the mural.
Unfortunately, all his pleas fell on deaf ears. Aggrieved by the apathy of the government
officials, Mr. Seghal filed a petition in the Delhi High Court for recognition and enforcement
of his rights on the mural.

Laws involved:Section 57 of the Copyright Act.

Issues:
1) Whether the plaintiff (Amar nath Sehgal) is entitled to the special rights u/s 57 of the
Copyright Act even after the copyrights are vested in the interest of the defendants?
2) Whether there are any damages in respect of any distortion, mutilation, modification or
other act in relation to the said work, which is done before the expiration of the term of
copyright?

Analysis:  The work of art or any work which have some kind of creativity involved also
have some kind of sentiments or the sense of ownership attached to it. These moral values
should always be respected. Special rights u/s 57 of the Copyright Act are very important
laws, which give the rights to the author or any person who makes anything to claim the
damages against any kind of distortion, mutilation or modification without the consent of the
author. This is the landmark case in which the moral rights were considered.
The judgment states that these rights are independent of the author’s copyright. They exist
even after the assignment of the copyright, either wholly or partially. Secondly, The court
stated that the defendants moved the mural without the prior permission of the author and in
addition to it the mural was also damaged from the corners. The mural was moved away from
the public view, which clearly shows that it was prejudicial to the author’s honor or
reputation.

Judgment:  The Court held that the mural whatever be its form today is too precious to be
reduced to scrap and languish in the warehouse of the Government of India. It is only Mr.
Sehgal who has the right to recreate his work and therefore has the right to receive the broken
down mural. He also has the right to be compensated for the loss of reputation, honor and
mental injury due to the offending acts of UOI”.
The Court passed mandatory injunction against the UOI directing it to return the mural to Mr.
Sehgal within two weeks from the date of judgment. Court passed a declaration transferring
all the rights over the mural from UOI to Mr. Sehgal and an absolute right to recreate the
mural and sell the same. The Court also granted damages to the tune of Rs.5 lacs and cost of
suit to Mr. Sehgal against UOI.

Conclusion:  The Court favored the plaintiff and stated that the defendants are liable to pay
the damages and also to return the mural to its author. The Court also stated that prior
permission should always be taken before taking any such action.

7. Najma Heptulla v. Orient Longman Ltd. And Ors. AIR 1989 Delhi 63
Brief Facts:
The manuscript of the book ‘India Wins Freedom’ was ready for publication in November,
1957.
However, before the book could be published, Maulana Azad, the author of the book, died.
After that, National Archives, New Delhi and National Library, Calcutta agreed to be the
trustees
of the complete manuscript, including the 30 pages which were not published till the present
judgement. It was agreed that seal of the complete manuscript would only be broken after
22nd
February, 1988, on the request of Prof. Humayun Kabir, a close associate of Maulana Azad.
On 29th May, 1958 Fatima Begum (grandmother of the Plaintiff) and Nooruddin Ahmed, two
legal heirs of Maulana Azad, gave their written consent to the arrangements for the
publication
of the aforesaid book, excluding the 30 pages.
On 2nd September, 1958 an agreement was entered into between Prof. Kabir and Orient
Longman to publish the aforesaid book, excluding the 30 pages, and pay half of the royalty to
Indian Council of Cultural Relations and the other half to Fatima Begum and Nooruddin
Ahmed
equally. It was stated in the agreement that Prof. Kabir was the composer of the book. It was
also agreed that the publishers would have the first option to publish the complete book after
the
seals would be broken on 22nd February, 1988.
A notice dated 13th February, 1988 was issued by the Plaintiff to the National Library and
National Archives to inform that she was not desirous to publish the complete book. Later on,
the present suit was filed for the rendition of accounts and injunction against the Defendants
to
restrain them from publishing the complete book.
The Plaintiff (Najma Heptulla), one of the legal heirs of late Maulana Abul Kalam Azad, had
sought relief against Defendant No. 1 (M/s. Orient Longman Ltd.) with whom an agreement
had
been entered into by Professor Humayun Kabir, who is claimed by his daughter (Defendant
no.
6), to be the real author of the book ‘India Wins Freedom’. Maulana Azad, during his life
time,
wrote the aforesaid book India Wins Freedom.
Plaintiff’s Contentions:
Maulana Azad, during his life time, wrote the aforesaid book India Wins Freedom.
Plaintiff is a legal representative of Maulana Azad and the copyright in the complete book
vests
in the legal representatives. It is, therefore, submitted that Prof. Kabir had no authority to
enter
into the agreement dated 2nd September, 1958 with Orient Longman. Until all the legal
representatives of Maulana Azad decide to publish the entire book, the same cannot be made
known to the public.
Defendants’ Contentions:
Agreement dated 2nd September, 1958 was valid because Prof. Humayun Kabir was a joint
author with Maulana Azad and that he had been duly authorised by the owners of the
copyright
to execute the agreement dated 2nd September, 1958.
Issues:
(i) Whether Prof.Kabir is the sole author of the book ‘India Wins Freedom’?
(ii) Whether Prof. Kabir had any authority to execute the agreement dated 2ndSeptember,
1958
with Orient Longman?
Court’s Observations:
(i) No
Rationale of Decision: According to the preface to the said book written by Prof Kabir,
Maulana
Azad used to describe his experiences in Urdu, on the basis of which a draft in English would
be
prepared by Prof. Kabir. The intention of the Copyright Act cannot be to give the status of an
author only to the person in whose language the literary piece is written while completely
ignoring the person who contributed the entire material. Both the subject matter and the
language are important. Hence, Maulana Azad and Prof. Kabir are joint authors.
(ii) Yes
Rationale of Decision: As Prof. Kabir was not the sole author of the said book, it was
necessary
for him to have been authorised by the legal representatives of Maulana Azad to enter into an
agreement with Orient Longman. Even though from the document dated 29th May, 1958
alone it
is not possible to conclude that all the terms contained in the agreement dated 2nd September,
1958 were expressly ratified by the legal heirs, their conduct of accepting the royalty, payable
by
Orient Longman, must have led it to believe that the said agreement had their consent.
Having
enjoyed the fruits of the said agreement for all these years without any demur, the legal
representatives of Maulana Azad are estopped from challenging the validity of the said
agreement.
Hence, the Defendants were allowed to break the seals of the covers of the complete book
‘India Wins Freedom’ and make its contents known to the public.
8. Video Master Vs Nishi Productions 1998 PTC (18) 117 Bombay.
Plaintiffs praying for various reliefs in respect of cinematograph film BEES SAAL BAAD
- Considering the activity of the Cable TV operators of receiving signals on dish antenna
and thereafter transmitting it by cables to viewers either at fees or otherwise, do not
amount to infringement to plaintiffs' copyright - By broadcasting cinematograph through
satellite, defendants are not committing infringement of plaintiffs' copyrights in the
cinematograph BEES SAAL BADD, therefore, plaintiffs will not be entitled for interim
order. Considering the activity of the Cable TV operators of receiving signals on dish
antenna and thereafter transmitting it by cables to viewers either at fees or otherwise,
do not amount to infringement to plaintiffs' copyright. By broadcasting cinematograph
through sateUite, defendants are not committing infringement of plaintiffs' copyrights in
the cinematograph BEES SAAL BAAD; therefore, plaintiffs will not be entitled for interim
order in this notice of motion.
9. Indian Performing Rights Society V. Eastern Indian Motion Pictures Ltd.
Facts:
This is a dispute that broke out in a matter involving rights over Indian literary and music
works
for which the copyright subsides in India. Parties to the dispute where the Indian performing
right society and the cinematograph exhibitors association of India.
IPRS incorporated on 23/08/1969 in the state of Maharashtra governed by copyright Act
1957
has the authority for issuing licenses for performance in public of all existing future Indian
literary and musical works for which the copyright subsides in India and is a company limited
by
guarantee for the purpose of granting license for all present and future Indian musical works
to
be performed in public.
IPRS claimed that it is entitled to a royalty in case the literary work used in cinematograph
films
is broadcasted on radio stations as they claimed themselves to be assignees of the literary
works and laid down a tariff for the same.
The association of cinematograph exhibitors opposed to the same saying that IPRS has
absolutely no rights over these works and that the production house was the real owner of
copyrights over the literary work in question since composer loses his rights under the
contract
of service between production houses especially when there is a consideration involved.
An appeal was preferred as the objectors were dissatisfied with the high court decision which
allowed claim made by the cinematographers association and further laid down that
assignment
of future work has no effect.
Issue:
Whether an existing or a future right of music composer /lyricist is capable of assignment
Whether the producer of the film can be the copyright owner by means of engaging the
composer.
Holding:
Yes. Copyright relating to existing and future work can be assigned. The assignment would
take effect only when the work comes into existence.
Yes. The cinematograph film producer becomes the first owner of the copyright in case he
commissions a composer of music, a lyricist, for reward or for a consideration to compose
music
to be incorporated in the cinematograph film as the composer is employed under a contract of
service.
The Rule of Law:
Issue no: 1
Section 30 of the copyright act 1957 states that assignment of work is possible by means of
issuing a license duly signed by the composer or his assignee; and
In case of a license relating to future work; the assignment shall take effect after the work
comes into existence.
Issue no: 2
Section 17(c) of copyrights act 1957 lays down that the proprietor becomes the absolute
owner
in cases of contract of service for valuable consideration unless there is an agreement
contrary
to it.
Analysis:
Issue no: 1
A composer can assign rights over future work. The assignment takes effect once the
composition comes into existence. Section 30 of the copyright act 1957 lays down that
assignment of work is possible by means of issuing a license in favor of the prospective
owner
of the copyright. The rights can be transferred by means of a document duly signed by the
owner or the assignee. Present and future works of a composer can be assigned; however, the
assignment comes into effect only after the work in question comes into existence.
15. Once an agreement is entered into between the production house and the composer for
incorporating the composer’s composition; composer loses his rights over the composition
and
the production house becomes the owner of the copyright. The agreement can be a present as
well as a future one. In either case, IPRS cannot claim royalty as it has absolutely no rights
over
it. However, it is different in case of lack of any agreement.
Issue no: 2
The court held that the composer loses his right over the composition automatically when he
enters into an agreement with a cinematograph producer to compose songs to be incorporated
in the film for consideration. Section 17(c) of the copyright act lays down that the producer
shall
be the owner of the composition in case of consideration and that the composition
automatically
becomes a part of the cinematograph film and the composer loses his rights over it
completely
and works falling under such category cannot be assigned further. IPRS cannot claim royalty
as
the production house has the right over the composition the moment it comes into existence.
Here there is a contract of service between the composer and production house. In this case,
the producer of the cinematograph film becomes the absolute owner and the authority cannot
be questioned.
10. Fortune Films International v. Dev Anand [AIR 1979 Bom 17],
the Honourable Supreme Court stated that an actor in a film has no rights over his
performance
in the film. However, this position changed in 1994 with the Indian Copyright Act, 1957
extending recognition to Performer’s Rights with the inclusion of Sections 38 and 39.
11. Star India Pvt. Ltd. V. Leo Burnett
https://www.lawyersclubindia.com/judiciary/making-of-copies-under-section-14-d--4468.asp

12. Shree Venkatesh Films Pvt. Ltd. v. Vipul Amrutlal Shah & Ors.
2 was diametrically opposite to the decision issued by the Bombay High Court. It was held
that a
cinematographic film is a "collection or collage or ensemble of various works like story,
screenplay, dialogue, sound track, video images, lyrics, etc. Each of these works may also
enjoy copyright protection. By operation of law or by contract or assignment the producer of
the
film may be vested copyrights in the above works…Now when all these works are put
together
However, not each and every work is entitled to copyright protection. In order to claim
copyright
there must be some originality in the work. The author of the work may obtain raw materials
for
the work from any or many sources but will only be entitled to copyright if these raw
materials
are converted, by use of his labour skill, capital and intelligence to create another material or
work which is something different from the raw materials and has an element of novelty.”
13. MRF Limited vs. METRO Tyres Limited, decided on July 01, 2019.
The brief facts of the case were that MRF Limited (“MRF”), a known manufacturer of a
range of
tyres in order to promote a particular product, produced an audio-visual advertisement which
was first aired in TV media on June 27, 2015, and posted the same on the Internet on
YouTube
on June 27, 2015. Subsequently, the same advertisement was played on forty-one television
channels. In October, 2016, it came to the notice of MRF that METRO Tyres Limited
(“METRO”)
had produced an advertisement which the MRF considered to be a substantial and material
copy of their advertisement thereby infringing their copyright. Thus, MRF filed a suit before
the
Delhi High Court for copyright infringement.
It was claimed by MRF’s counsel that the intent of the defendant was clearly to make a
“copy”
by intending to show a similar sequencing, form, treatment and expression” and the two
advertisements when compared has similarities on fundamental and substantial aspect of the
mode of expression which evidence clear intent to copy, whereas the differences, if any, were
minor and immaterial. It was emphasized that in a suit for copyright infringement of a
cinematographic film, the test is of an overall impression of an average consumer and not a
microscopic analysis which underscores differences/divergences. The Plaintiff submitted that,
in
line with India’s obligations under the Berne Convention, a cinematograph work has to be
protected as an ‘original’ work and the owner of copyright of cinematograph film enjoys the
same rights as the author of original works. Thus, ‘to make a copy of the film’ is not limited
to
making a physical copy. The Plaintiff also provided a tabular representation for comparison
of
the illustrations and sequences of advertisements to show the “material similarities” between
the
two advertisements which couldn’t have occurred by a “mere chance”.

1. In University of London Press v. University Tutorial Press (1916), the question arose as
to whether certain mathematics exam papers were original literary works. The court held
that originality does not mean that the work must be an expression of individual thought.
The simple fact that the authors drew on a body of knowledge which was common to
mathematicians did not compromise originality. The requirement of originality, it was
held, does not require that expression be in an original or novel form. It does, however,
require that the work not be copied from another work. It must originate from the author.
As such, even though these were the same old math problems which every student is
familiar with, and even though there was no creative input, the skill, labour, and judgment
of the authors was sufficient as to make the papers original literary works.
2. The United States rejected this doctrine in 1991, in a Supreme Court judgment of Feist
Publications v. Rural Telephone Service (1991) commonly called Feist v. Rural, in which
Feist had copied information from Rural's telephone listings to include in its own, after
Rural had refused to licence the information. Rural had sued for copyright infringement.
The Court ruled that information contained in Rural's phone directory was not
copyrightable, and that therefore no infringement existed. Prior to this case, the
subsistence of copyright in United States law followed the sweat of the brow doctrine
which gave copyright to anyone who invested significant amount of time and energy into
their work. At trial and appeal level the courts followed this doctrine, siding with Rural.
The court ruled that Rural's directory was nothing more than an alphabetic list of all
subscribers to its service, which it was required to compile under law, and that no creative
expression was involved. The fact that Rural spent considerable time and money
collecting the data was irrelevant to copyright law, and Rural's copyright claim was
dismissed

3. The general principle is that if a person is employed to do a work and paid

for the work, the product of his labour, subject to any agreement to the
contrarybelongs to the employer. However, any work done by employee or agent outside
his employment or contract belongs to him.
Therefore, in case of V.T. Thomas alias Tom v. Malayam Manorama, (1998)
Court held that cartoons named 'Baban and Molly‖ created long prior to
employment under the respondent belonged to cartoonist V.T. Thomas and he
alone is the owner of the work.

4. Anil Gupta V. Kunal Dasgupta  AIR (2002) Delhi 379– commonly known as the
Swayamvar Case, the Delhi High Court laid down that an idea per se has no copyright.
But if the idea is developed into a concept fledged with adequate details, then the same is
capable of registration under the Act and that the Laws must ensure that persons who
create an idea / concept or theme which is original are rewarded for their labour.
5. Berne Convention' has recognized the moral right of author which are included as (i)
Paternity right, i.e., to claim authority of the work even after the assignment of work, and
integrity right, i.e., the right to protect author's honour and reputation. These rights remain
with the author even after the transfer of copyright and they continue through the term of
the copyright. These rights are in addition to economic rights. The defendant was
restrained from printing, publishing and selling the book of plaintiff author in distorted
form. Similarly, in Smt. Mannu Bhandari v. Kala Vikas Picture (1987) the Delhi High
Court declared that author's right to restrain distortion of her work is not {130} limited
only to cases of literary reproduction but it extends to a film based on such work.
6. Najma Heptulla v. Orient Longman Ltd., AIR 1989 Del 63 the Delhi High Court
observed that both narrator and writer shall have to be regarded as joint author of the
work. It was held that when the material for the book was supplied by Maulana Azad with
a clear understanding that Prof. Humayun Kabir would describe those thoughts and
conversations and write the same in English and 50% of the royalty of the book has been
paid to the legal representatives of Maulana Azad, then both the narrator and writer shall
have to be regarded as the joint authors of the said book. Conduct of accepting the royalty
by the legal representatives of Maulana Azad for 30~years establishes their consent to the
agreement assigning the copyright of the complete book to a publishing company. They
are estopped horn challenging the validity of the agreement and are not entitled to an
injunction restraining the publisher from publishing the entire work after 30 years as the
author wished.

7. MARTIN V KOGAN
Facts: -The main dispute in the case in question concerned the authorship of the screenplay of
the 2016 drama-comedy film 'Florence Foster Jenkins', which was directed by Stephen Frears
and starred actors Meryl Streep and Hugh Grant. Nicholas Martin, a professional writer of
film and television scripts, is regarded as being the sole author of the film's screenplay.
However, Julia Kogan, a professional opera singer, claimed to be a joint author of the film's
screenplay, seeking a portion of Mr Martin's film income. Both Mr Martin and Ms Kogan
gave conflicting statements on the creation of the film's screenplay. Mr Martin, claiming sole
authorship, did not contest the fact that Ms Kogan had introduced him to the story of
Florence Foster Jenkins. He stated that Ms Kogan was a supportive proof-reader and
sounding board, outlining minor information and suggestions based on her musical
experience. On the other hand, Ms Kogan, claiming joint authorship, credited Mr Martin as
being the main writer, but based creative collaboration. She stated that she wrote, either alone
or with Mr Martin, significant parts of various scenes.
The Intellectual Property Enterprise Court here considered whether the contributions made by
Ms Kogan were enough to qualify her as a joint author. Although the Court found evidence
that Ms Kogan jointly wrote the screenplay with Mr Martin, there was more evidence to
demonstrate that Mr Martin had written the initial drafts of the screenplay alone, with Ms
Kogan only providing minor assistance.
Consequently, the presiding Judge, Mr Justice Hacon, found Mr Martin to be the sole writer
of the drafts of the screenplay, with Ms Kogan's input being only minor and limited to
criticism, minor plot ideas and technical musical expression. Therefore, her input was
deemed insufficient to qualify her as a joint author, with Mr Martin being able to declare
himself as the sole author of the film's screenplay. Following the decision, Ms Kogan
appealed.
a) The Court of Appeal Decision
On 9th October 2019, the Court of Appeal delivered its judgment. The Court held that "it is
entirely realistic to suppose that a reconsideration of all the evidence would show that Ms
Kogan's contribution was indeed made as part of a collaboration and passed the quantitative
threshold for joint authorship". Therefore, the Court of Appeal, setting the IPEC decision
aside, accepted the appeal and, in an unusual move, ordered the re-trial before the IPEC in
front of a new judge.
The raison d'être behind the Court of Appeal's decision rested upon whether Ms Kogan's
input in the film's screenplay was enough to satisfy the four main elements of joint
authorship: (a) collaboration, (b) authorship, (c) contribution and (d) non-distinctness of the
contribution. The Court considered each element respectively, and provided valuable insight
as follows:
b) Collaboration
For a work to be regarded as joint authorship, it has to be created through a collaboration , in
pursuance of a common design, thus making derivative works ineligible. Nevertheless, a
collaboration must go beyond mere editorial amendments, criticism or recommendations.
Moreover, with regard to the work, it is also important to establish the true nature of the
communication between the contributors
c) Authorship
The Court held that creation and fixation are not one and the same, shifting the focus from
'who wields the pen?'. In fact, the Court of Appeal held that: "It is the skill and effort
involved in creating, selecting or gathering together the detailed concepts or emotions which
the words have fixed in writing which is protected in the case of a literary or dramatic work,
whether the work is one of sole or joint authorship. Too much focus on who pushed the pen is
likely to detract attention from what it is that is protected, and thus from who the authors are".
d) Contribution
Here, the Court of Appeal held that the contribution made by a joint author must be
"authorial". The Court noted that since the screenplay is categorised as a dramatic work,
elements such as plot and characters do amount to an authorial contribution. This begs the
question: How much does a contributor have to contribute to a collaborative work to acquire
the status of a joint author? This question was answered by referencing the 'Infopaq' test. This
tests states that a joint author must contribute elements which convey his/her own intellectual
creations through free and expressive decisions.
e) Non-Distinctness of Contribution
This element stipulates that the contribution must not be capable of being separated. Contrary
to the IPEC ruling, the Court of Appeal stated that the fact that one contributor has the
decisive say does not inhibit joint authorship, yet this only affects the proportion of
ownership. Moreover, the Court of Appeal also highlighted that the contributions made by
each joint author do not need to be equal and that each share can reflect, pro rata, the
respective amount of their contribution.
f) Implications
The Court of Appeal's decision is a fundamental one since, besides clearly outlining the
current legal position on joint authorship and copyright, it also confirms that the contribution
of a major author should not in any way reduce the importance of a minor joint author's
contribution. Interestingly, this judgment also delves into the 'idea/expression' dichotomy
since the Court, in its analysis of joint authorship, also addresses the concept which lies at the
core of copyright – the notion that mere ideas are not afforded copyright protection, but the
expression of those ideas can. In relation to a collaboration, it is generally assumed that
character or plot suggestions are merely ideas and thus not afforded copyright protection.
However, considering that such suggestions were in fact afforded protection in this case, it
will be interesting to see how future parties may be encouraged to use this judgment to allege
copyright protection to mere ideas which were previously not afforded copyright protection.

8. STAR INDIA V. LEO BURNETT

Facts: Star India was the owner of the copyright in the serial Kyunki Saas Bhi Kabhi Bahu
thi's theme and artistic work with which the title appeared on TV according to Clause 6 of the
agreement between Star India and Balaji Telefilms. Producers and Marketers of Tide
detergent (the defendants) came up with the advertisement for Procter & Gamble showing a
scene resembling climax of the TV show and displaying the artistic work appearing on TV
with the words "kyunki bahu bhi kabhi saas banegi" Star alleged that people will think that
Star licensed or produced the advertisement. Also, Star paid a sum of money to acquire the
copyright and Tide was alleged to be trying to encash upon Star's goodwill. Defendants
alleged that they independently created the advertisement. Further, it was the idea that was
used and ideas are not copyrightable. The commercial was submitted to Star who did not find
it objectionable. No average person would make the connect between the show and the ad.
Lastly they argued that even if it is a copy, it is not a substantial copy. Star replied saying that
it copied the heart of the TV show, i.e. the climax episode.

In the present case, the Honourable Court dismissed the Motion and no relief is granted to the
plaintiff. While deciding the case the Honourable court has referred to a number of relevant
cases.
While considering the first issue the Honourable Court held that if the film has been filmed or
shot separately by a person and it resembles the earlier film, the subsequent film is not a copy
of the first film. Since it is clear that defendants have not copied the film but made a new film
and therefore they have not infringed the copyright of the appellant/plaintiff’s film and
artistic work. While reaching such a decision, the court interpreted sec 14(a), (b), (c), (d) (1)
together; Specially According to sec 14(d) (i) copyright gives exclusive right to the author to
make actual physical copy of a cinematograph film by a process of duplication i.e., by using
mechanical process and if that copy is made by some unauthorized person then it means
infringement of copyright. But in the present case making of T.V. commercial was an
independent act. The dialogues, the sequence, everything was shot and recorded by the
defendants separately and not copied or edited from a film already made. Therefore the
defendants are not liable for infringement of plaintiff’s copyright in its film. For reaching
such a decision the Honourable Court has given reasoning that the independent production by
another person or even the same cinematograph film does not constitute an infringement of a
copyright in a cinematograph film.
On the issue of substantial copying by the defendant of plaintiff’s film, the Court has held
that the work of defendant is purely a commercial add for promotion of Tide product only
and the work of plaintiff is different from it. Thus the question of substantial copying does
not arise here.
Here the court has also applied a test of comparing both the works in qualitative and
quantitative terms and has concluded that both the works are completely different from each
other as the plaintiff’s work is a film of 262 episodes having duration of about 87 hours
whereas the defendant’s work is merely a commercial advertisement for promotion and
merchandising of TIDE having duration of only 30 seconds approx. Thus, in the present case
the scripts of both the works are entirely different and no portions of dialogues or scenes are
common.
On issue of passing off the court has held that Plaintiff would have threatened if both the
works would be related to common fields but in the present case, while comparing the
defendants work with plaintiff’s work, the Court has come to the conclusion that a 30 seconds
commercial with Tide detergent as a prime focus and dominant part thereof has never been
shown on exclusively on star plus channel.
In deciding the issue of character merchandising, the Honourable court has held that character
merchandizing involves the exploitation of fictional characters or the frames of celebrities by
licensing such famous fictional characters to others means when the character has developed
commodity value of itself, and there is no alike situation present here. Neither of the
characters in the serial has become a commodity in its own right, independently of the
film/serial. They represent the common people in the serial. There is also nothing to show
that the characters Tulsi, Savita or J.D. are capable of marketable independently or jointly.
Therefore this issue is also not maintainable.

9. In a leading case of R.G. Anand v. Delux Film (1978), Supreme Court rejected the claims
of plaintiff claiming copying in the theme of his drama, ―Hum Hindustani‖. In this case
the defendant produced a Film ―New Delhi‖ which according to plaintiff was based on
his drama ―Hum Hindustani‖. Rejecting the allegation of infringement Supreme Court
held that the film was not a substantial or material copy of the play.
In what circumstances and instances, the infringement of copyright can be culled have been
very aptly laid down by Supreme Court in a classic case of R.G. Anand v. Delux Films,
(1978) They serve as guideline propositions; therefore, they are reproduced hereunder: —
1. 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 copyright 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 or the
mode of expression adopted in the copyright work. If the defendants' 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
substantial and material one which at once leads to the conclusions that the defendant is
guilty of an act of piracy.
3. One of the surest and safest test to determine whether or not there has been a violation of
copyright is to see whether a 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.
7. Where 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, give a colour and
complexion different from the manner in which the 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.

10. In a very landmark judgment, M/s. Entertainment Network (India) Ltd. v. M/s. Super
Cassette Industries Ltd. (2008) wherein the first respondent is one of the leading music
companies engaged in the production and/or acquisition of rights in sound recordings. It
has copyright over a series of cassettes and CDs commonly known as T-series, containing
cinematographic films and sound recordings. Appellant is a leading FM radio
broadcaster, broadcasts under the brand name ―Radio Mirchi‖. Disputes arose between
the holding company of the first respondent and Phonographic Performance Ltd. (PPL) as
regards the playing of the songs of which copyrights belongs to the first respondent in
their FM radio network.
HELD: -A copyright owner has complete freedom to enjoy the fruits of his labour by
earning an agreed fee or royalty through the issuance of licenses. But, this right is not
absolute. It is subject to right of others to obtain compulsory license as also the terms on
which such license can be granted. The Court held that if the owner of the work has
refused to allow the performance of the work and by reason of such refusal the work is
withheld from the public, Compulsory licenses can be granted by the Copyright Board, on
the payment of amount of compensation and such other terms and conditions as
 determined by the Copyright Board. Merely an offer for negotiation or an offer is made
for grant of license per se may not be sufficient to arrive at a conclusion that the owner of
the copyright has not withheld its work from public. An unreasonable demand if acceded
to, becomes an unconstitutional contract which for all intent and purport may amount to
refusal to allow communication to the public work recorded in sound recording.
11. Indian Performing Right Society v. Eastern India Motion Picture Association & Ors., AIR
1977 SC 1443
When a cinematograph film producer commissions a composer of music or a lyricist for
valuable consideration for purpose of making his film or composing music or lyric for
that film, i.e., the sounds for incorporation in the soundtrack, he becomes the first owner
of the copyright therein. No copyright subsists in the composer of the lyric or music so
composed unless there is a contract to the contrary between the composer of the lyric or
music and the film producer. In this case the Supreme Court held that the
author/composer of a lvric or musical work who has authorised a cinematograph film
producer to make a film of his work and thereby permitted him to appropriate his work by
incorporating or recording it on the sound track of a cinematograph film cannot restrain
the owner of the film from causing the accosted portion of the film to be performed or
projected or screened in public for profit or from making any record embodying the
recording in any part of the sound track associated with the film by utilising such sound
track or from communicating or authorising the communication of the film by radio
diffusion as section 14(l)(c) of the Copyright Act permits the owner of the copyright of
the cinematograph film to do all these things.
12. Fortune Films International v. Dev Anand [AIR 1979 Bom 17], the Honourable Supreme
Court stated that an actor in a film has no rights over his performance in the film. However,
this position changed in 1994 with the Indian Copyright Act, 1957 extending recognition to
Performer’s Rights with the inclusion of Sections 38 and 39
13. Shree Venkatesh Films Pvt. Ltd. v. Vipul Amrutlal Shah & Ors. 2 It was held that a
cinematographic film is a "collection or collage or ensemble of various works like story,
screenplay, dialogue, sound track, video images, lyrics, etc. Each of these works may also
enjoy copyright protection. By operation of law or by contract or assignment the producer of
the film may be vested copyrights in the above works…Now when all these works are put
together However, not each and every work is entitled to copyright protection. In order to
claim copyright there must be some originality in the work. The author of the work may
obtain raw materials for the work from any or many sources but will only be entitled to
copyright if these raw materials are converted, by use of his labour skill, capital and
intelligence to create another material or work which is something different from the raw
materials and has an element of novelty.”
14. MRF Limited vs. METRO Tyres Limited, decided on July 01, 2019. The brief facts of the
case were that MRF Limited (“MRF”), a known manufacturer of a range of tyres in order to
promote a particular product, produced an audio-visual advertisement which was first aired in
TV media on June 27, 2015, and posted the same on the Internet on YouTube on June 27,
2015. Subsequently, the same advertisement was played on forty-one television channels. In
October, 2016, it came to the notice of MRF that METRO Tyres Limited (“METRO”) had
produced an advertisement which the MRF considered to be a substantial and material copy
of their advertisement thereby infringing their copyright. Thus, MRF filed a suit before the
Delhi High Court for copyright infringement. It was claimed by MRF’s counsel that the
intent of the defendant was clearly to make a “copy” by intending to show a similar
sequencing, form, treatment and expression” and the two advertisements when compared has
similarities on fundamental and substantial aspect of the mode of expression which evidence
clear intent to copy, whereas the differences, if any, were minor and immaterial. It was
emphasized that in a suit for copyright infringement of a cinematographic film, the test is of
an overall impression of an average consumer and not a microscopic analysis which
underscores differences/divergences. The Plaintiff submitted that, in line with India’s
obligations under the Berne Convention, a cinematograph work has to be protected as an
‘original’ work and the owner of copyright of cinematograph film enjoys the same rights as
the author of original works. Thus, ‘to make a copy of the film’ is not limited to making a
physical copy. The Plaintiff also provided a tabular representation for comparison of the
illustrations and sequences of

Trademark

Reckitt Colman of India Ltd. v/s Kiwi T.T.K. Ltd.

In the given case, both parties were in the business of manufacturing shoe polish. The
defendants, whose brand name was ‘Kiwi’ marketed an advertisement comparing a bottle of
their shoe polish with another bottle, marked as ‘Product X’ whereby the virtues of the
defendant’s product were extolled while disparaging the other unnamed product. The plaintiff
claimed that ‘Product X’ bore a striking resemblance in design to their own product namely,
‘Cherry Blossom’ and that the advertisement disparaged its product

Whether the product which has been shown as others is a product of the plaintiff or can make
the general public believe that this product belongs to the plaintiff or in any way can be
connected with it?
 Five principles to decide as to whether a party is entitled to an injunction are as under:
 A tradesman is entitled to declare his goods to be best in the words, even though the
declaration is untrue.
 He can also say that my goods are better than his competitors‟, even though such a
statement is untrue.
 For the purpose of saying that his goods are the best in the world or his goods are better
than his competitors‟, he can even compare the advantages of his goods over the goods of
others.
 He, however, cannot while saying his goods are better than his competitors‟, say that his
competitors‟ goods are bad. If he says so, he really slanders the goods of his competitors. In
other words, he defames his competitors and their goods, which is not permissible.
 If there is no defamation to the goods or to the manufacturer of such goods no action lies,
but if there is such defamation an action lies and if an action lies for

recovery of damages for defamation, then the Court is also competent to grant an order of
injunction restraining repetition of such defamation.
 The settled law on the subject is that a manufacturer is entitled to make a statement that
his goods are the best and also make some statements for puffing of his goods and the same
will not give a cause of action to other traders or manufacturers of similar goods to institute,
proceedings as there is no disparagement or defamation to the goods of the manufacturer so
doing. However, a manufacturer is not entitled to say that his competitor‟s goods are bad so
as to puff and promote his goods

Mr. A D Padamsingh Issac & M/s Aachi Masala v/s Aachi Cargo Channels (P) Ltd.
The submission of the appellants was with respect to being the registered proprietor and
therefore having the exclusive right to use the word Aachi and that the respondents cannot
use the word regardless of being in a completely different service/business.
http://www.legalserviceindia.com/legal/article-1269-courts-take-on-translated-marks-an-
analysis-of-mr-a-d-padamsingh-issac-and-m-s-aachi-masala-v-aachi-cargo-channels-p-
ltd-.html

Sunil Mittal v. Darzi on Call Section 9 and Section 31,section2

a. Whether the word „DARZI‟ is generic/ descriptive word incapable of being registered as
trademark?
b. Whether infringement of only a part of a logo/ label can be challenged?
The court adjudged that DARZI is not a generic or descriptive word for rendering tailoring
services and thus can be registered. The court also decided that the word „DARZI‟ forms an
essential and integral part of the label/logo and its infringement can be challenged
independently of other parts of the logo. Further, the court held that it cannot be expected
from a person to file suit against each and every person who is using his trademark if it does
not affect him.
The court distinguished the use of the word DARZI for an individual (tailor) from using it for
the service rendered by a tailor i.e. tailoring thereby declaring it not to be descriptive /generic
but the distinction is very thin. The court only considered the usage of the word in Delhi
thereby limiting the scope of the judgement only to where the place of business of the
plaintiff is located. The court also took a strong stance against trademark squatting and
pointed out that litigation should not be made into a business.
The court did not consider section 9(1)(c) which clear lays down that for a generic mark there
cannot be registration under the Act.
 Parakh Vanijya Private Limited vs Baroma Agro Product
infringement and passing off special Biryani Rice under the mark “MALABAR GOLD” or
other mark/trade name which is identical with and/or deceptively similar to the appellant‟s
trade mark „MALABAR‟.
The case arises out of an appeal against an order passed by the the High Court of Calcutta
where it was held that the respondent (defendant) is entitled to use the word „MALABAR‟ in
conjunction with the mark „BAROMA‟ for selling its product - Biryani Rice. Appellant
(Plaintiff) claims to have been using the mark „MALABAR‟ or selling Biryani Rice from
2001. The appellant filed the suit for infringement and passing off special Biryani Rice under
the mark “MALABAR GOLD” or other mark/trade name which is identical with and/or
deceptively similar to the appellant‟s trade mark „MALABAR‟.
“Condition & Limitation: REGISTRATION OF THIS TRADE MARK SHALL GIVE NO
RIGHT TO THE EXCLUSIVE USE OF WORD „MALABAR‟ AND ALL OTHER
DESCRIPTIVE MATTERS”
Appellant has no exclusive right over the word MALABAR.

The Basmati Controversy

The grant of US patent to Ricetect Inc a US multinational company in the name of Basmati
necessitated the urgency of enacting law for protection of geographical indications. protection
of; geographical indications
After hard work of two and a half years, India put together the data and challenged the
patents of Ricetect Inc. in April 2000. The US Patent and Trademark Office (USPTO) issued
patents to only three strains of hybrid ―basmati‖ grain out of 20 claims developed by the
Ricetect while rejecting a more sweeping claim by the company. The three strains of Basmati
to which protection was afforded, were patently and noticeably different.
As far as the use of geographical indication ―Basmati‖ by Ricetec Ind. was concerned, the
patent office stated that Ricetec could use the Basmati appellation because it was not a
trademarked name or a geographic indicator, unlike ―champagne‖ or ―Port‖ which were
specific to a region. It was further stated that ―Basmati‖ was not a geographic indicator even
in India. It was grown all over India, Pakistan and even in Thailand. It was also stated that the
―Basmati‖ saga had a turbulent history eversince the perceived transgression in the mid-
1990s was first reported when ―Texmati‖ and ―Jasmati‖ hit the shelves of grocery chain
stores. This ruling of USPTO goes against Indian interest so far as geographical indication of
―Basmati‖ is concerned.
The Basmati controversy was an eye opener and India enacted the Geographical Indications
of Goods (Registration and Protection) Act, 1999 (hereinafter an Act.). This is the first
specific law which provides for the registration and protection of geographical indications.

RiceTec has got a patent for three things: growing rice plants with certain characteristics
identical to Basmati, the grain produced by such plants, and the method of selecting rice
based on a starch index (SI) test devised by RiceTec, Inc.4 « The patent was challenged on
the fact that the plant varieties and grains already exist as a staple in India.5 75 percent of
U.S. rice imports are from Thailand and that the remainder is from India and Pakistan and
both varieties are rice that cannot be grown in the United States. The legal theory is that the
patent is not novel and for an invention that is obvious, being based on rice that is already
being imported in the United States, therefore it should not have been granted in the first
place. India’s attorneys also seek to challenge the use of the term ‘basmati’ in conjunction
with the patent and in marketing of the rice.6 Such use of the term creates confusion as to
geographic origin and usurps the goodwill and recognition established with basmati rice
grown and sold from India. As a result of the re-examination application filed by the Indian
government, RiceTec agreed to withdraw several of the claims. In January 29, 2002, the
United States Patent and Trademark Office issued a Reexamination Certificate canceling
claims 1-7, 10, and 14-20 (the broad claims covering the rice plant) out of 24 claims and
entered amendments to claims 12- 13 on the definition of chalkiness of the rice grains7 «
Trademark law could also be a basis for challenging the use of basmati. RiceTec and to
prevent it from marketing basmati rice in a way that creates confusion with the Indian
product. But, in order to be successful on such a claim, the Indian government would have to
show likelihood of confusion among consumers.8 RiceTec did not trademark the term
‘basmati’ and it has been careful in marketing its product so as not to use the term basmati as
an indication of source. For example, in the United Kingdom, RiceTec markets the product as
Texmati rice, since British law protects the use of the term basmati to refer to rice coming
from India and Pakistan. RiceTec also uses Texmati in its U.S. sales, but does use the term
basmati in its packaging. The Indian government could argue that this use of the term basmati
is what creates confusion among consumers. The term basmati need not be federally
registered as a trademark for India to raise the claim.9 However, RiceTec could have a
counter argument that India cannot bring an infringement action because ‘basmati’ could not
be protected as a trademark, it really being a descriptive mark; the word means fragrant and
hence describes a major attribute of the product.10Descriptive marks are protected only if
they have secondary meaning, that is, the term makes the ordinary consumer recognize the
source of the product as opposed to the product itself.11In this vein, RiceTec could also argue
that the term basmati has become a generic term for a particular category of rice and hence
cannot be protected.12 However, now it is much a settled position that geographical
indicators need not necessarily indicate the place of origin, it could signify the product itself
as long as it is known to possess certain qualities by the virtue of its belonging to certain
place.13 If India loses the fight against RiceTec, the issue remains of what India can
strategically do to protect its rights in basmati rice. U.S. trademark law does not offer a
successful avenue for India. The TRIPS agreement expressly protects ‘indicators of
geographic origin’ and permits legal recourse through the WTO process to discontinue use of
misleading geographic indicators. The problem with relying on TRIPS is the ‘basmati’ is not
a geographic indicator; the word literally, describes the scent of the rice, not its geographic
source. One tactic that the government has recently pursued is to enact its own law granting
protection to marks that indicate geographic origin. Basmati is arguably protected under these
recently enacted provisions. One argument that the Indian government made in challenging
RiceTec’s patent is that basmati should be treated like ‘champagne’ and ‘burgundy’. The
TRIPS agreement expressly forbids trademark protection for geographic indicators as applied
to wine and spirits. The United States has amended its trademark law to reflect this
prohibition. The Indian government sought the same protection for rice and other agricultural
products, as accorded to wines and spirits. Unfortunately, there is no basis in treaty or statute
for this treatment. However, the government’s enactment of laws designed to protect
geographic indicators demonstrates one step to accord the same protection to agricultural
products as currently given to wine and spirits. The strategy is that once terms like basmati
gain protection domestically, pressures may arise to accord protection internationally.
However, this is at best a long term strategy

a) Tea Board of India Vs. ITC Ltd. 3

g) Arguments given by the plaintiff

According to the plaintiff, defendant has infringed the registered geographical indication
rights having a fraud and malice intention and the rights of the plaintiff are being hampered in
this way –

a) The defendant has fraudulently used the tag of Geographical Indication (GI) in naming one
of its business premises as 'DARJEELING LOUNGE' which is a registered GI.

b) The defendant having malice intention used the name 'DARJEELING' for the presentation
and sale of goods which it sells in such lounge.

c) The defendant has disguised its customers by suggesting that the goods which it sells at the
said 'DARJEELING LOUNGE'originate in the said geographical area.
d) The defendant by using the registered GI has hampered the rights of the plaintiff as the
defendant misleads its customers by telling them that the products are originated from the
designated place of origin.

e) The use of the name 'DARJEELING' for the purpose of the said lounge and for the purpose
of publicity and selling of goods has created an unfair competition and the plaintiff can use
his right of passing off and other rights for the matter.

f) The defendant's use of the name 'DARJEELING' for naming the lounge, advertising and
selling products against the honest trade practices.

g) The defendant, by using the impugned name 'DARJEELING' for the purpose of the lounge
has threated the commercial activities of the persons who are actually in the business of the
Darjeeling Tea.

h) The use of the name 'DARJEELING' for the purposes of its lounge and all purposes
relating thereto is a serious threat to the trade of the existing tea business and also disregard
to the registered GI tag having a particular standard.

i) The wrongful acts of the defendant in using the 'DARJEELING' name and logo is a highly
misleading to the general public as regards the nature or manufacturing process or
characteristics and suitability of the goods actually sold in the said lounge.

In order to prevent the Defendant from violating the above rights of the GI tag holder in
reference with the Trademark Act and Geographical Indications, the plaintiff had moved an
interlocutory application for temporary injunction to restrain the defendant from infringing
the rights in any manner possible.

h) Arguments by the Defendant

According to the defendant, there is no cause of action for filing the suit as the suit was
barred by limitation. Since the plaintiff had only certification trademark, no right or cause of
action could arise for the plaintiff under such certification trademark against the defendant's
using the "DARJEELING LOUNGE" in view with the Trademark Act. As per the Defendant
the suit is also not maintainable under section 26 of the Geographical Indications Act.

i) Judgement

The Hon'ble Justice Sahidullah Munshi of Calcutta High Court, opined that the suit by Tea
Board was barred by limitation as the hotel lounge was started in January 2003. But the suit
was filed only in 2010 which is beyond the limitation provided under Section 26(4) of the GI
act which is for 5 years.

The Court went into the merits of the case and Justice Munshi observed that, "It is also not
found that there has been any infringement under the Geographical Indications of Goods Act
because the defendant's 'Lounge' is not relating to goods. Plaintiff's rights conferred by the
registration of the word 'Darjeeling' is only in relation to tea. 'Darjeeling' is not a trade mark.
It is only used to indicate geographical indication of a place of origin of tea originating from
Darjeeling. The law relates to geographical indication is confined only to goods. The plaintiff
does not own any right in the name of 'Darjeeling' for any goods other than tea.The
Geographical Indications Act can only extend to goods and admittedly, the defendant's
lounge does not fall within the category of 'goods'".

The Hon'ble Court further found that there is no unfair competition under the definitions of
Geographical Indications Act as the business area of plaintiff and defendant is totally
different and among the 87 tea estates none of them had raised any issue. The Board also
claimed that its rights under Trademarks Act 1999 also stood violated by the use of name
'Darjeeling' for the lounge. But the Court noted that the Board only had certification
trademark within the meaning of Section 2(e) of the Trademarks Act 1999, which does not
amount to a registered trademark. The certification trademark gave the Board only the
authority to certify that the concerned tea is connected with Darjeeling region and here the
defendant is dealing with service.

The Court stated that there is no relation between the defendants 'DARJEELING LOUNGE'
and the plaintiff's rights under Trademark or GI act and the allegations are baseless and the
Court dismissed the suit for Rs.10 lakhs.4

j) Conclusion

From the above case we can conclude that a registered GI gives right to the GI tag holder to
stop any person or entity from using the registered mark of GI or its name in a product which
might be similar or deceptively similar to the registered product or it might not be similar to
the registered product, but have the registered name in it. But if a person is using the
registered name or logo of GI in a service then that will not come under the ambit of The
Geographical Indications of Goods (Registration and Protection) Act, 1999 because if we
look at the definition of GI itself given in the TRIPS and in the section 2(e) of the domestic
GI act then we will find the use of word "good/s" in it and the word service is mentioned no
where and GI is about the product with special characteristics because of environment,
climate and human intervention of a specific region. So, on this merits court dismissed the
appeal by the plaintiff.

 Monsanto and Nuziveedu:

The dispute between Monsanto and Nuziveedu goes back a long way. To around 2003 in fact,
when Nuziveedu had to face India’s de-facto patent regime in the form of its biosafety
regulatory regime under the Ministry of Environment & Forests, which compelled Nuziveedu
to get into sub-licensing agreements with Monsanto (Monsanto Mahyco Biotech), to be able
to use the Bt technology in its cotton hybrids. That was for Bollgard I technology or Cry1Ac
gene which did not even have a patent in India. Trouble has been brewing since then.
The original disputes that brought the parties to the Delhi High Court in 2016 pertained to the
fact that Monsanto contends that Nuziveedu is still to pay its dues with regard to trait/license
fees, while Nuziveedu contends that Monsanto has illegally terminated their sub-license
agreement on 14.11.2015 in an unjustified manner and that it is not bound to pay anything
more than the trait value fixed by states and centre. There was also the matter of whether
trademarks of Bollgard can be used or not, or even the use of abbreviations like “BGII” by
Nuziveedu which denies any infringement

The Delhi high court judgments

It is pertinent that the case was brought before the Delhi high court when Monsanto sued
Nuziveedu Seeds, along with Prabhat Agri Biotech and Pravardhan Seeds, seeking an
injunction for patent and trademark infringement. A single-judge bench of the Delhi high
court allowed Nuziveedu Seeds and other Indian companies to continue using the patented
technology until the suit was disposed. The Indian companies were ordered to pay a
licensing fee according to government-set rates.

Both parties appealed this verdict before the division bench of the Delhi high court. While
Monsanto challenged the reinstatement the license that had been cancelled, the Indian
companies challenged the rejection of their arguments about the patent’s validity.

The division bench ruled that the patents could not be enforced under Indian law and
upheld the payment of licensing fee by the Indian companies.

What the Supreme Court said

The Supreme Court on Tuesday said the division bench ought to have “confined its
adjudication to the question whether grant of injunction was justified or  unjustified in the
facts and circumstances of the case”.

It noted:

Summary adjudication of a technically complex suit requiring expert evidence also, at

the stage of injunction in the manner done, was certainly neither desirable or permissible
in the law. The suit involved complicated mixed questions of law and facts with regard
to patentability and exclusion of patent which could be examined in the suit on basis of
evidence.

The apex court also said that before a patent is revoked, Section 64 of the Patents Act and
the Civil Procedure Code require consideration of the claims in a suit and the counter
claims, as well as the examination of expert witnesses and inspection of documents.
“We are therefore satisfied that the Division Bench ought not to have disposed of the suit
in a summary manner by relying on documents only, extracted from the public domain,
and not even filed as exhibits in the suit, much less examination of expert witnesses, in the
facts of the present case,” the verdict read.

The issues raised in the suit are complicated, requiring technological and expert evidence
with regard to issues of chemical process, biochemical, biotechnical and microbiological
processes. The court said facts, such as if “the nucleic acid sequence trait once inserted
could be removed from that variety or not” and “whether the patented DNA sequence was
a plant or a part of a plant”, need to be considered at the final hearing.

“The Division Bench ought to have confined itself to examination of the validity of the
order of injunction granted by the learned Single Judge only. But we are not inclined
to remand the matter for that purpose to the Division Bench as we are satisfied in the facts
and circumstances of the case that the nature of the injunctive relief granted by the
Single Judge was in order and merits no interference during the pendency of the suit,” the
bench said.

Setting aside the order of the division bench, the Supreme Court restored the single judge’s
March 2017 order. “The suit is remanded to the learned Single Judge for disposal in
accordance with law. In view of the importance of the question involved, we expect the
parties to cooperate and facilitate the learned Single Judge in early disposal of the suit,” it
said.

The Protection of Plant Variety and Farmers' Rights Act, 2001 (hereinafter referred to as_

Pepsico v. Bipin Patel

The Act') provides for establishment of an effective system for protection of plant varieties
and rights of farmers, while encouraging development of new varieties of plants. This was the
first of its kind case under the Act, where PepsiCo instituted a suit for permanent injunction
to restrain infringement of the variety, FL 2027 (commercial name ‗FC-5') and also seeking
damages to the tune of Rs. 1.05 crores from each farmer. The company contended that the
farmers had been illegally producing, selling, etc. the variety without their permission,
thereby violating PepsiCo's statutory right under Section 641 and 652 of the Act. PepsiCo
claims to have first hand knowledge about the production of the said variety by the farmers in
January, 2019, following which samples were collected and sent for testing. The DNA
samples matched with that of the farmers' potato variety, confirming a possible infringement
and resulting in PepsiCo being granted ex-parte ad-interim injunction vide an order dated
8th April, 2019, thereby restraining the farmers from producing, selling the produce of the
variety registered by PepsiCo until the next hearing, i.e. 26 th April.3 PepsiCo was known to
have agreements with farmers in Punjab for cultivation of the concerned variety under the
buyback system, however, this was the first time that a farmer in Gujarat was found in
possession of the variety allegedly registered with PepsiCo.

a) Controversy:

The order of the Court elicited a huge uproar, as politicians, activists, farmers' organisations
vociferously protested, thereby trying to paint the company as some sort of a tyrannical
capitalist trampling upon the rights of poor farmers. Some experts, on the other hand,
supported PepsiCo and argued that this was indeed an intellectual property violation by the
farmers. The fact of the matter is that PepsiCo had filed an application for registration of the
variety as a ‗new variety' on 02nd February, 2012 and was subsequently granted registration
by the Plant Variety Registry, effectively making PepsiCo the registered owner of the variety.
On the other hand, the sued farmers are claiming that they bought the potato seeds locally
where they are available, in what is known as the grey market. Furthermore, farm activists
have also argued that while the potato variety was introduced in India in 2011, it was only
registered five years later in 2016; therefore, it is natural that it spread among farmers who
are not under any contractual arrangement with the company.

The pertinent question is who can grow what crops, as IPR has been invoked for the first time
under a law governing the rights of breeders and farmers in India. The law in India, however,
is unique as it protects the rights of the farmers as well as, the breeders.

Legal experts are divided over whose side the law is actually on. Section 39 (1) (iv) 4 of the
Act, begins with the words ―Notwithstanding anything contained in this Act‖, which means
that the Section has precedence over all the other sections from the Act. It further entitles a
farmer to do all things mentioned therein in the same manner as he was entitled to before the
Act came into force, thereby meaning that any act of farmer shall remain unaffected.

PepsiCo, on the other hand, is relying on Section 64 (supra) which states that a right
established under this Act is infringed when a person who is not the breeder, registered agent
or licensee of a variety, sells, exports, imports or produces such variety without the
permission of the breeder by such selling, exporting, importing, causes confusion in the
minds of general people. It remains to be seen whether the farmers sold potato seeds (to be
cultivated), or sold the unprocessed potato produce, which is the raw material which is used
to make Lay's chips. Another interesting point to note is that farmers claim protection under
Section 39 (1) (iv) claiming that the seed was already available in the market much prior to
registration by PepsiCo, raising the question as to why PepsiCo took action only in 2019
when it could have been initiated much prior to it.

However, things took a rather unexpected turn, when on 10th May, 2019, the company
reportedly withdrew all its cases against the farmers under intense pressure from its
headquarters as well as the public and political parties in India. In a statement, PepsiCo
stated: ―After discussions with the Government, the Company has agreed to withdraw cases
against farmers. We are relying on the said discussions to find a long term and an amicable
resolution of all issues around seed protection.‖

Biodiversity Act
 Kani Tribes issue

nowing that the Kani knew the area better than anyone, Dr. Pushpangadan employed some of
them as guides. While traversing through the rough terrain, the team was surprised that after
several hours their Kani guides did not feel tired, while they themselves were constantly
feeling fatigued. Curious as to why, the observed their guides and saw them continuously
munching black fruits of some plants. Seeing their exhaustion, the Kani guides offered some
of the fruit to the AICRPE team. Upon eating the fruit, the team immediately felt full of
energy and vitality.

The Kani have a rich tradition of using wild plants found in the region for health reasons, and
their tribal physicians – known as Plathi – are the exclusive holders of the traditional
medicinal knowledge of the tribe. According to Kani tribal customs, only the Plathi have the
right to transfer and disseminate their traditional medicinal knowledge. Because of this, the
Kani guides were reticent to share with the AICRPE team the source of the revitalizing fruit.
However after a great deal of pressure, the Kani led the team to a plant known locally as
“arogyapacha” (known scientifically as trichopus zeylanicus ssp. Travancoricus)

https://www.wipo.int/ipadvantage/en/details.jsp?id=2599

DIVYA PHARMACY V UNION OF INDIA AND OTHERS 2018 Writ Petition (M/S) No.
3437 of 2016

The primary issue in the above case was whether purely Indian entities with no foreign
participation were required to share benefits from use of biological resources or knowledge
associated therewith, as provided under the Biological Diversity Act, 2002. Swami Ramdev
and Acharya Balkrishna founded a Trust by the name “Divya Yog Mandir”. Divya Pharmacy
is a commercial arm of the Trust and is the Petitioner in the present case. The Petitioner is
involved in manufacturing of ayurvedic products and it was agreed that Biological Resources
are the main ingredient and raw material for manufacture of the same. The Petitioners was
aggrieved by the notices sent to them by the Uttarakhand Biodiversity Board (UBB) to pay
Fair and Equitable Benefit Sharing (FEBS) as provided under the Biological Diversity Act,
2002 (hereinafter Act) and the Rules and Regulations framed thereunder.

http://nlsabs.com/wp-content/uploads/2019/01/DIVYA-PHARMACY-V-UNION-OF-
INDIA-AND-OTHERS-case-summary.pdf

Czech Republic’s Scientists Case72 is particular case was regarding the prosecution of two
reputed scientists in the Court of the District Magistrate in Darjeeling, West Bengal which
was reported in the year 2008. e scientists were charged under Sections 2773 and 2974 of the
Wildlife Protection Act, 1972 by the West Bengal Forest Department, which dealt with
illegal entry into a Protected Area that was punishable under Section 51of the Act.
In addition to those charges, subsequent charges of the violation of Section 3 of the BD Act,
2002, were also made. is section states that no non-Indian entity (person/institution/ body
corporate) can access any of India’s biological diversity without express permission of the
NBA. e scientists were arrested by the Forest Ranger, Singalila North Range, Wild Life
Division and were said to be found in possession of any many as 1500 species of butter- ies,
insects and moths, most of which were endangered in nature.75 e scientists in their defence
stated that this specie collection was for their personal research and was for a non-
commercial purpose. Hence, they did not apply for permissions from the NBA. However, the
Court of the Chief Judicial Magistrate convicted both of the scientists and ned one of the
convicted, Rs. 20,000 and the other Rs. 60,000 along with three years of imprisonment.76
While this case raised concerns about the weakness of the procedural system as well as
monitoring of access to biological resources, the issue of curtailment of freedom of research
by the BD Act was also subsequently discussed in the scientic community.

Japanese National’s Case

In this particular case, two Japanese scientists were taken into custody by Wildlife O cials
from the Athirapilly Forest81, Kerala. ey were accused of illegally smuggling exotic species
of snakes, spiders, scorpions, turtles etc. e Forest Department charged them under various
sections of the Wildlife Protection Act, 1972 and the BD Act, 2002 for the o ence of
smuggling. Upon investigation, it was reported that the two youths, who were scientists of a
reputed institute in Japan were taking these reptiles for research purposes. Section 3(1) of the
Biological Diversity Act, 2002 states that access to biological resource and other activities
mentioned under the BD Act cannot be undertaken by non-Indian individuals or entities
(body corporates/associations/organizations) having non-Indian participation without prior
approval of the National Biodiversity Authority. Any violation of the provision, which is a
cognizable and non bailable o ence, is punishable with imprisonment up to ve years, or with
a ne up to Rs.10 lakh. In cases where the damage caused exceeds Rs.10 lakh, the ne may be
commensurate with the damage caused, or with both according to the Act.82 In this case,
various sections of the Wildlife Protection Act, 1972 were also applied such as illegal
trespass into protected areas of the forest without permission from the Chief Wildlife
Warden83, removal of any wildlife from a sanctuary84, and their transport into another
country without permission.8